State v. Davis, A05-857.

• Decision Date: 24 May 2007
• Docket Number: No. A05-857.,A05-857.
• Citation: 732 N.W.2d 173
• Parties: STATE of Minnesota, Respondent, v. Scott Evan DAVIS, Appellant.
• Court: Minnesota Supreme Court

732 N.W.2d 173

STATE of Minnesota, Respondent, v. Scott Evan DAVIS, Appellant.

No. A05-857.

Supreme Court of Minnesota.

May 24, 2007.

Derek A. Patrin, Meaney & Patrin, P.A., Hopkins, MN, for Appellant.

Mike Hatch, Minnesota Attorney General, State of Minnesota, St. Paul, MN, James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Hastings, MN, for Respondent.

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

OPINION

GILDEA, Justice.

Based on evidence the police discovered during a search of his apartment, appellant Scott Evan Davis was found guilty of possession of controlled substances and drug paraphernalia. Davis contends that the search violated his rights under the Minnesota Constitution. He argues that the evidence seized from his apartment should have been suppressed because the search warrant was supported in part by a dog sniff conducted outside his apartment door, and the police did not have either probable cause or reasonable suspicion to conduct the dog sniff. The district court denied Davis's motion to suppress the evidence, and the court of appeals affirmed. We granted Davis's petition for review and now affirm.

On August 27, 2004, an officer with the Burnsville Police Department obtained a search warrant for Davis's apartment. The officer included the following facts in the search warrant application: (1) an apartment complex employee told the officer that she or he¹ had received information from maintenance employees at the complex that they believed they had observed marijuana-growing lights inside Davis's apartment and that Davis would not let them come into his apartment to investigate or repair a possible water leak; (2) a dog, certified by the United States Police K-9 Association to detect the smell of drugs, alerted to the presence of a narcotic odor² in the first floor hallway of the apartment building at the threshold of Davis's apartment door;³ and (3) a background check revealed that Davis had a history of criminal activity. The district court issued the warrant, and police officers executed the warrant on August 31, 2004. The officers gained access to Davis's apartment with a key provided by apartment-complex management. In Davis's apartment, the officers discovered various items of contraband.

Davis was charged with two counts of controlled substance crimes in the fifth degree and one count of possession of drug paraphernalia.⁴ On February 25, 2005, Davis filed a motion to suppress the evidence seized from his apartment and to dismiss the charges against him, arguing that the search violated his rights under the Fourth Amendment and the Minnesota Constitution. No testimony was offered in connection with Davis's motion. The parties agreed instead to submit the question to the court based on the application for search warrant and supporting affidavit, the police report prepared following execution of the search warrant, and legal memoranda. Following oral argument, the district court denied Davis's motion. The court concluded that the police needed reasonable, articulable suspicion to use the narcotics-detection dog and that the standard was met based on the information provided to police by the apartment complex employees. The court of appeals affirmed.

I.

The Minnesota Constitution⁵ prohibits "unreasonable searches and seizures." Minn. Const. art. I, § 10.⁶ The first step in an analysis under section 10 usually involves a determination of whether the police activity at issue constitutes a search or a seizure for purposes of the Minnesota Constitution. State v. Carter, 697 N.W.2d 199, 210-11 (Minn.2005). That analysis is unnecessary in this case. In Carter we decided that the use of a narcotics-detection dog outside a storage unit is a search for purposes of the Minnesota Constitution. Carter, 697 N.W.2d at 211. The state has not asked us to reconsider our analysis in Carter and it has not argued that the expectation of privacy at issue in this case requires a different conclusion. Indeed, the state does not even argue that the dog sniff in this case was not a search.⁷ We therefore turn to the next step in the analysis, which requires us to examine the level of suspicion (probable cause or reasonable, articulable suspicion) necessary to sustain as constitutional the use of a narcotics-detection dog in the common hallway of an apartment building. See id. The district court and the court of appeals concluded that a reasonable, articulable suspicion was necessary and that probable cause was not required in this circumstance. We review this constitutional question de novo. See State v. Burbach, 706 N.W.2d 484, 487 (Minn.2005).

We have addressed the level of suspicion necessary to sustain the use of a narcotics-detection dog in two recent cases. See Carter, 697 N.W.2d at 211-12; State v. Wiegand, 645 N.W.2d 125, 133-35 (Minn. 2002). Because the parties' arguments are premised on the holdings of Carter and Wiegand, we turn first to a discussion of these cases.

In Wiegand, the police walked a narcotics-detection dog around the exterior of a motor vehicle that had been stopped because of a burned-out headlight. 645 N.W.2d at 128-29. Because there was "some expectation of privacy in an automobile," and a dog sniff intrudes upon this privacy interest "to some degree," we held that the police "cannot conduct a narcotics-detection dog sniff around a motor vehicle stopped for a routine equipment violation without some level of suspicion of illegal activity." Id. at 134. We concluded that principles from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), were appropriately applied to the context of a motor vehicle stop, and we said that the Terry principles authorized the balancing of the level of intrusiveness of the use of the dog "against the importance of the governmental interest at stake." Wiegand, 645 N.W.2d at 133-34. Based on this balancing, we adopted the reasonable, articulable suspicion standard as necessary to sustain the use of the dog sniff in Wiegand. Id. at 137.⁸

We also employed the reasonable, articulable suspicion standard in Carter. 697 N.W.2d at 211. That case involved the use of a narcotics-detection dog around the exterior of a private storage unit located within a fenced self-storage facility. Id. at 202-03. We concluded that the dog sniff was a search for purposes of the Minnesota Constitution, even though we had concluded it was not a search for purposes of the United States Constitution. Carter, 697 N.W.2d at 209, 211. We reached this conclusion because we found that the expectation of privacy at issue was greater under our constitution than it had been determined to be under the Fourth Amendment. Id. at 210. Having concluded that the use of the dog was a search under the Minnesota Constitution, we then examined what level of suspicion was necessary to sustain the search under our constitution. Id. at 211-12. We concluded that the reasonable, articulable suspicion standard struck the appropriate "middle ground" between the individual's privacy interest and the government's interest in using effective law enforcement tools. Id. (internal quotation marks omitted).

On the basis of Wiegand and Carter, Davis asks us to find that the Minnesota Constitution requires probable cause to sustain the use of the narcotics-detection dog in the hallway outside his apartment. Davis contends that the dog sniff was a search "inside" his private residence and that his expectation of privacy in his residence is greater than the expectation of privacy found to exist in either Wiegand or Carter. Accordingly, Davis contends the dog sniff in this case must be supported by probable cause to survive a constitutional challenge.⁹

The Supreme Court has cautioned against using a "mechanical interpretation" of the prohibition against unreasonable searches. Kyllo v. United States, 533 U.S. 27, 35, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). We have also recognized that what constitutes an unreasonable search must be assessed based on the facts of each particular case. State v. Olson, 271 Minn. 50, 57, 135 N.W.2d 181, 186 (1965). As part of this particularized inquiry, Minnesota courts have balanced "the nature and significance of the intrusion on the individual's privacy interests * * * against the gravity of the public concerns it serves and the degree to which the conduct at issue advances the public interest." State v. Larsen, 650 N.W.2d 144, 148, 150 (Minn. 2002) (ruling that the warrantless search of a fish house that was not supported by probable cause was unreasonable). We turn now to that individualized analysis.

II.

The Minnesota Constitution protects citizens against unreasonable government intrusions upon areas where there is a legitimate expectation of privacy. See Carter, 697 N.W.2d at 214. Davis has the burden of showing that the dog sniff intruded upon an area in which he had a legitimate expectation of privacy. See State v. Gail, 713 N.W.2d 851, 859-60 (Minn.2006) (concluding that the defendant "has the burden of establishing that his rights under Article I, Section 10 of the Minnesota Constitution were violated"). There is no question that a person has a legitimate expectation of privacy inside her or his residence. See Carter, 697 N.W.2d at 208 (noting that a person's expectations of privacy in a home "are most heightened"). The issue in this case is whether the level of intrusion upon Davis's privacy interest—through the police walking a narcotics-detection dog outside his residence in the common hallway—is sufficiently great that it can be said to render the search "unreasonable" under the Minnesota Constitution unless it is supported by probable cause.

If the police enter a place where a person has a legitimate expectation of privacy there is of course a great intrusion upon that privacy interest. But in this case the police did not enter the area in which Davis has the greatest expectation of privacy, his...