State v. Carter, No. A03-1215.

• Decision Date: 09 June 2005
• Docket Number: No. A03-1215.
• Citation: 697 N.W.2d 199
• Parties: STATE of Minnesota, Respondent, v. Andre Lashon CARTER, Appellant.
• Court: Minnesota Supreme Court

697 N.W.2d 199

STATE of Minnesota, Respondent, v. Andre Lashon CARTER, Appellant.

No. A03-1215.

Supreme Court of Minnesota.

June 9, 2005.

John M. Stuart, State Public Defender, Theodora Karin Gaitas, Assistant Public Defender, Rachel Foster Bond, Special Assistant Public Defender, Faegre & Benson, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

HANSON, Justice.

In this appeal from a conviction of unlawful possession of a firearm, we consider what level of suspicion must precede police use of a drug-detection dog to sniff outside a bank of storage units within a fenced self-storage facility. The district court denied the motion of appellant Andre Lashon Carter to suppress the evidence of a firearm discovered when police, acting pursuant to a search warrant that was based in large part on the results of a dog sniff, searched his rented storage unit. The court of appeals affirmed, holding that the dog sniff was not a "search" because appellant had no expectation of privacy in the "semi-public" area outside his unit. Although we conclude that the dog sniff was not a "search" within the meaning of the Fourth Amendment to the United States Constitution, we hold that the dog sniff was a "search" within the meaning of Article I, Section 10 of the Minnesota Constitution. Because the governmental interest in the use of drug-detection dogs to aid law enforcement is significant, we hold that a dog sniff is an unreasonable search unless police have at least reasonable, articulable suspicion of criminal activity before conducting it. And because the police did not have such suspicion here, and there was no probable cause to issue the warrant without the results of the dog sniff, we reverse appellant's conviction and grant a new trial.

On June 10, 2002, a Saint Paul police officer arranged for a drug-detection dog to "sniff" outside a bank of storage units within a fenced self-storage facility. The dog sniff at Secure Mini Storage occurred approximately 4 weeks after a Minnesota Bureau of Criminal Apprehension (BCA) agent had observed what he believed to be suspicious activity at the facility. According to the agent, a white car bearing no license plates had entered the facility, left, and then re-entered as the female driver stared at police officers who were dressed in "raid gear." The agent believed that the driver was scouting or surveying the officers. The agent also observed that a blue sports-utility vehicle left the fenced storage facility at the same time as the white car.¹ The SUV displayed license plates registered to appellant's brother, Benjamin Carter.

The agent relayed information about his suspicions to a Saint Paul police officer, who recognized Benjamin Carter's name from a drug-related investigation. The Saint Paul officer then consulted with Secure Mini Storage's manager, who said that Benjamin Carter and appellant each rented two units at the facility and sometimes visited their units several times a day. The Saint Paul officer then arranged for the June 10, 2002, dog sniff, apparently after securing permission from the facility's management to enter the fenced area immediately outside of appellant's units. The dog indicated that a controlled substance was inside one of those units.

Later that day, the Saint Paul officer applied for two search warrants—one for appellant's storage unit, the other for his home. The warrant applications did not identify the Secure Mini Storage manager by name, did not specify the dates when the manager was interviewed or when the BCA agent observed the suspicious activities, and did not explain why 4 weeks had elapsed between the suspicious activities and the sniff. The applications did allege that the Carters were gang members and had prior convictions for drug offenses— two convictions for appellant in 1995 and 1997, and one for Benjamin in 1995. The applications also indicated that appellant had been convicted of possessing a pistol without a permit in 1995, and had three arrests, apparently not resulting in convictions, in 1994 and 1998. The warrant applications also referenced four arrests for Benjamin Carter from 1998 to 2001. Finally, as to the dog sniff, the applications stated that a dog "certified at narcotics detection * * * [had] indicated the presence of controlled substance from storage locker # 2504," which was one of the units appellant rented.

A Ramsey County district judge signed the search warrant for the storage unit, authorizing seizure of, among other things, controlled substances and firearms; the judge also signed the search warrant for appellant's home, authorizing seizure of "keys which may be used to facilitate the distribution of controlled substances," financial records, documents, mail, and gang-membership indicia.

The next day, police officers first executed the warrant at appellant's home and seized a clear bag with a substance suspected to be cocaine, a scale, $692 in currency, undeveloped film, a can of Mace, and various keys and documents. Appellant was arrested at his home and taken to the Ramsey County jail. Later that morning, police officers executed the warrant at appellant's storage unit, where they seized two firearms, ammunition, and a nylon bag containing a stocking hat. No drugs were found.

Based on the firearms and ammunition seized from the storage unit, appellant was charged with illegal possession of a firearm under Minn.Stat. § 624.713, subds. 1(b) and 2, and § 609.11, subd. 5(b) (2004).² He brought a motion to suppress the firearms and ammunition, arguing that police officers lacked the suspicion required to conduct a dog sniff outside his storage unit and, without the results of the dog sniff, lacked probable cause to support the warrant. Appellant cited State v. Wiegand, 645 N.W.2d 125 (Minn.2002), where we held that a police officer performing a traffic stop for a routine equipment violation must have reasonable, articulable suspicion of drug-related criminal activity before using a drug-detection dog to sniff the automobile's exterior.

The district court denied the motion to suppress, ruling that the results of the dog sniff, appellant's criminal record, and his alleged frequent visits to the storage facility provided the "substantial basis" for probable cause needed to support a search warrant. See, e.g., State v. McBride, 666 N.W.2d 351, 360 (Minn.2003)

(court reviewing another magistrate's issuance of search warrant ensures "that the court had a substantial basis for concluding that probable cause existed"). The district court did not rule on whether probable cause existed apart from the results of the dog sniff. On April 21, 2003, appellant was convicted and sentenced to 60 months in prison.

The court of appeals affirmed appellant's conviction. The court held that the reasonable suspicion requirement in Wiegand did not apply because it was confined to situations where police officers attempt to "expand the scope or duration of an investigative stop beyond the investigation of an equipment violation that was the cause for the stop." State v. Carter, 682 N.W.2d 648, 652 (Minn.App.2004). The court concluded that appellant had no reasonable expectation of privacy in the "semi-public" area immediately outside the storage unit and, therefore, that the dog sniff in that area was not a search.

We granted review on the issue of what level of suspicion must precede a drug-detection dog sniff of an area outside a self-storage unit.

I.

First, we examine whether evidence other than the results of the dog sniff provided a substantial basis for probable cause supporting the warrant for the storage-unit search. If there was independent probable cause, we would affirm appellant's conviction and save the constitutional questions concerning the dog sniff for another day. State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981) (deferring the constitutional issue because conviction was reversed on other grounds); In re Senty-Haugen, 583 N.W.2d 266, 269 n. 3 (Minn.1998) ("It is well-settled law that courts should not reach constitutional issues if matters can be resolved otherwise.").

When examining whether a search was supported by probable cause, the ultimate question is whether there is a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A district court's decision to issue a search warrant is reviewed for "whether the issuing judge had a substantial basis for concluding that probable cause existed." State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001). Because we examine the totality of the circumstances, "a collection of pieces of information that would not be substantial alone can combine to create sufficient probable cause." State v. Jones, 678 N.W.2d 1, 11 (Minn.2004). Nonetheless, in examining the issuing judge's basis for finding probable cause, we look only to information presented in the affidavit and not to information that the police possessed but did not present in the affidavit to determine whether there were "specific facts to establish a direct connection between the alleged criminal activity and the site to be searched." State v. Souto, 578 N.W.2d 744, 749 (Minn.1998).

The application for the search warrant for the storage units listed three factors besides the results of the dog sniff to support probable cause for the search: (1) appellant's criminal record, (2) a BCA agent's observations and suspicions from approximately 4 weeks earlier, and (3) a statement from the Secure Mini Storage manager regarding appellant's rental of and frequent visits to his storage units.

A person's criminal record is among the circumstances a judge may consider when determining whether probable cause...