State v. Edstrom, A16-1382.

• Court: Court of Appeals of Minnesota
• Writing for the Court: KLAPHAKE, Judge
• Citation: 901 N.W.2d 455
• Decision Date: 05 September 2017
• Docket Number: A16-1382.
• Parties: STATE of Minnesota, Respondent, v. Cortney John EDSTROM, Appellant.

901 N.W.2d 455

STATE of Minnesota, Respondent,
v.
Cortney John EDSTROM, Appellant.

A16-1382.

Court of Appeals of Minnesota.

Filed September 5, 2017
Review Granted November 14, 2017

Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, Minnesota (for respondent).

Cathryn Middlebrook, Chief Appellate Public Defender, Stan Keillor, Special Assistant Public Defender, St. Paul, Minnesota (for appellant).

Considered and decided by Rodenberg, Presiding Judge; Reilly, Judge; and Klaphake, Judge.^*

OPINION

KLAPHAKE, Judge

Appellant challenges the district court's denial of his motion to suppress evidence seized in the search of the apartment, arguing

901 N.W.2d 458

that the warrantless use of a narcotics-detection dog at the apartment door was unlawful and tainted the subsequent search warrant. We conclude that the use of a narcotics-detection dog at an apartment door inside a secured apartment building implicates a legitimate expectation of privacy that constitutes a search requiring a warrant. Because the result of the dog sniff was essential to probable cause for issuance of the search warrant, we reverse and remand.

FACTS

In October 2015, Hopkins Police Sergeant Erik Husevold received a tip from a confidential informant that appellant Cortney John Edstrom was selling "a substantial amount of methamphetamine out of an apartment in Brooklyn Park." The informant identified the location of the apartment building and stated that Edstrom lived on the third floor, drove a black Cadillac Deville sedan, and had possessed a pistol in the last three months. The informant knew that Edstrom was a convicted felon and believed he also owned a shotgun. Sergeant Husevold located a photograph of Edstrom on the Minnesota Department of Vehicle Services website, which indicated that he owned a black Cadillac Deville sedan, and the informant positively identified Edstrom from the photograph as the person who was selling methamphetamine.

Sergeant Husevold further investigated the informant's tip by going to the apartment building and obtaining a directory list for every resident on the third floor. He learned that Edstrom listed S.G. as his emergency contact in 2014 when he was in custody on an unrelated matter and that S.G. resided in an apartment on the third floor of the building. Based on this information, Sergeant Husevold directed Officer Tim Olson to use his narcotics-detection dog to examine apartment doors on the third floor from the common hallway of the apartment building. Officer Olson's narcotics-detection dog is certified and trained to detect and positively indicate the odor of various narcotics, including methamphetamine.

The apartment building is secured, but property management maintains a lockbox, called a Knox box, with a building key inside that enables law enforcement to access the building. Sergeant Husevold and Officer Olson entered the apartment building after a Brooklyn Park police officer obtained the entryway key from the Knox box and gave it to Sergeant Husevold. Officer Olson's narcotics-detection dog provided a positive alert for the presence of narcotics at the door to S.G.'s apartment. The narcotics-detection dog examined other apartment doors on the third floor but did not provide a positive alert at any other door.

Based on this information, Sergeant Husevold applied for a nighttime, unannounced warrant to search S.G.'s apartment. The district court issued the warrant to search S.G.'s apartment, and police officers executed the search on October 8, 2015. They recovered 226.65 grams of methamphetamine, multiple firearms, shotgun shells and rounds, and several digital scales with methamphetamine residue. They also seized Edstrom, who was inside the apartment.

The state charged Edstrom with first-degree sale of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 1(1) (2014) ; first-degree possession of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2014) ; and possession of a firearm by an ineligible person, in violation of Minn. Stat. § 624.713, subd. 1(2) (Supp. 2015).

In March 2016, Edstrom moved to suppress the methamphetamine and firearms

901 N.W.2d 459

that were obtained from the warrantless use of the narcotics-detection dog and subsequent search warrant. At the suppression hearing, he claimed that the warrantless search by a narcotics-detection dog at the apartment door was unconstitutional because the "actual door leading into the home" is clearly curtilage and that he had a reasonable expectation of privacy "at the door" or "at the seams of the door."

The district court denied Edstrom's motion to suppress, concluding that a narcotics-detection dog sniffing at an apartment door was permissible because Sergeant Husevold had "a legitimate reason for being in the common hallway on the third floor" and the area immediately outside an apartment door is not curtilage for purposes of the Fourth Amendment because it is a common area accessible to all residents, their guests, and anyone else who has entered the building legitimately, including law enforcement.

The matter proceeded to trial, and the jury found Edstrom guilty of first-degree possession of a controlled substance and possession of a firearm by an ineligible person. The jury found him not guilty of first-degree sale of methamphetamine. This appeal follows.

ISSUE

Did the district court err in determining that the use of a narcotics-detection dog at the door of an apartment inside a secured, multi-unit apartment building is not a search for purposes of the United States and Minnesota Constitutions?

ANALYSIS

Edstrom challenges the district court's denial of his motion to suppress evidence, relying heavily on Florida v. Jardines , 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), and its effect on Fourth Amendment law. He contends that the police officers' warrantless use of a narcotics-detection dog at an apartment door inside a secured, multi-unit residential building was unconstitutional.¹ Specifically, Edstrom contends that: (1) the narcotics-detection dog's examination of the apartment door was an unlawful physical intrusion; and (2) that the use of the narcotics-detection dog outside the apartment door violated an area in which he had a legitimate expectation of privacy.

"When reviewing a district court's pretrial order on a motion to suppress evidence, ‘we review the district court's factual findings under a clearly erroneous standard and the district court's legal determinations de novo.’ " State v. Gauster , 752 N.W.2d 496, 502 (Minn. 2008) (quoting State v. Jordan , 742 N.W.2d 149, 152 (Minn. 2007) ).

The United States Constitution guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Minnesota Constitution contains similar language. Minn. Const. art. I, § 10. "[T]he Fourth Amendment protects people, not places." Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). "At the very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion." Silverman v. United States , 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961). And "when it comes to the Fourth Amendment, the home is first among equals." Jardines , 569 U.S. at 6, 133 S.Ct. at 1414. The United States Supreme Court has identified the scope of the Fourth Amendment's protection in two

901 N.W.2d 460

ways. First, it protects people "[w]hen the Government obtains information by physically intruding on persons, houses, papers, or effects." Id. at 5, 133 S.Ct. at 1414 (quotation omitted). Second, it "protects people from unreasonable government intrusions into their legitimate expectations of privacy." United States v. Place , 462 U.S. 696, 706-07, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983) (quotation omitted). Minnesota courts have applied similar standards to warrantless searches under article I, section 10, of the Minnesota Constitution. See, e.g. , State v. Davis , 732 N.W.2d 173 (Minn. 2007) ; State v. Carter , 697 N.W.2d 199, 206-11 (Minn. 2005).

A. Curtilage

We first consider whether the police officers' use of a narcotics-detection dog at the apartment door was a physical intrusion into a constitutionally protected area. See Jardines , 569 U.S. at 5, 133 S.Ct. at 1414. Edstrom argues that an apartment door is curtilage as a matter of law and that the traditional test for curtilage does not apply to apartment buildings. See United States v. Dunn , 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987). The state argues that this court's decision in State v. Luhm , 880 N.W.2d 606 (Minn. App. 2016), is dispositive.

"[T]he area immediately surrounding and associated with the home—what our cases call the curtilage—[is] part of the home itself for Fourth Amendment purposes." Jardines , 569...