State v. Wiegand, No. C2-00-1137

• Decision Date: 13 June 2002
• Docket Number: No. C6-00-1139., No. C2-00-1137, No. C4-00-1138
• Citation: 645 N.W.2d 125
• Parties: STATE of Minnesota, Respondent, v. Rolan WIEGAND, Lorna Quesette Matthews, Almond Baxter Longley, Petitioners, Appellants.
• Court: Minnesota Supreme Court

645 N.W.2d 125

STATE of Minnesota, Respondent, v. Rolan WIEGAND, Lorna Quesette Matthews, Almond Baxter Longley, Petitioners, Appellants.

Nos. C2-00-1137, C4-00-1138, C6-00-1139.

Supreme Court of Minnesota.

June 13, 2002.

Joanna M. Wiegert, # 214863, Duluth, MN, Scott G. Swanson, Minneapolis, MN, Appellants' Attorneys'.

Mike A. Hatch, Minnesota Attorney General, St. Paul, MN, Marvin E. Ketola, Carlton County Attorney, Dennis Genereau, Jr., # 267776, Assistant County Attorney, Carlton, MN, Respondent's Attorneys'.

Michele R. Wallace, # 262304, Rondoni, MacMillan & Schneider, Ltd., Minneapolis, MN, Teresa Jo Nelson, # 269736, Minnesota Civil Liberties Union, St. Paul, MN, Attorneys for Amicus Curiae MCLU.

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

OPINION

RUSSELL A. ANDERSON, Justice.

Appellants Rolan Wiegand, Lorna Quesette Matthews, and Almond Baxter Longley were charged with fifth-degree possession of controlled substance in violation of Minn.Stat. § 152.025, subd. 2(1) (2000). They moved to suppress the evidence obtained as a result of a search of the vehicle they were in, which was conducted after a trained narcotics-detection dog alerted to the presence of narcotics under the hood of the vehicle. Wiegand also moved to suppress the evidence obtained from his person, which was recovered as a result of a pat-down search incident to arrest after discovery of the narcotics under the hood. The district court suppressed the evidence, concluding that the law enforcement officers lacked probable cause to conduct the dog sniff around the exterior of the vehicle, and thus lacked probable cause to search the vehicle. The district court dismissed the charges and the court of appeals reversed, concluding that a dog sniff is not a search and therefore does not require probable cause. State v. Wiegand, 621 N.W.2d 476, 478 (Minn.App.2001). While we agree that the dog sniff of the exterior of the motor vehicle in this case was not a search requiring probable cause, we reverse the court of appeals on the basis that the investigative method used by the officers exceeded the permissible scope of a traffic stop for a routine equipment violation in the absence of a reasonable, articulable suspicion of drug-related criminal activity.

A Cloquet police officer observed a car traveling north on Highway 33 at 12:20 a.m. with a burned-out headlight. The officer stopped the car and identified Matthews, the owner of the vehicle, in the back seat, Wiegand, the driver, and Longley in the front passenger seat. As the officer spoke with appellants, two other Cloquet police officers arrived on the scene.¹ The officer who made the stop reported that Wiegand had very slow and quiet speech, was somewhat nervous, was shaking, and had glossy eyes. The officer also testified at the suppression hearing that Wiegand was looking down and was not talking in the officer's direction. On cross-examination, the officer testified that during the stop he did not suspect that Wiegand was under the influence of any drugs, but instead concluded simply that Wiegand was acting suspiciously.

The officer asked Wiegand, and then Matthews, if there were any narcotics in the car, and each responded there were not. The officer requested permission to search the car, and Matthews denied the request. The officer determined not to issue a citation but to issue a warning for the equipment violation, and asked another officer to write the warning so that he could retrieve his dog, trained in narcotics detection, from his patrol car.

The officer walked the dog around the car twice, and each time the dog alerted to narcotics at the front, passenger-side corner of the car. The officer told Matthews that the dog detected narcotics, and she responded that it may have been because she occasionally smokes a marijuana joint in the car. The officer walked the dog around the car a third time, and the dog alerted to the same area. At some point, either preceding or following the third alert, the officer placed the dog in the interior of the vehicle to pinpoint the origin of the smell that had caused the dog to alert to narcotics, and the officers then searched the interior of the vehicle. The dog did not alert to narcotics inside the vehicle, however, and the officers found no narcotics. The officers then opened the hood of the car and discovered four and one-half ounces of marijuana in a plastic bag behind the insulation on the underside of the hood. The officers placed appellants under arrest. During a pat-down of appellants, more marijuana and some cocaine were found on Wiegand. Appellants were charged with possession of controlled substance in the fifth degree, Wiegand with two counts.

On motions to suppress the controlled substance in each case, the district court concluded that there was no probable cause for a search, suppressed the evidence, and dismissed the charges. The court of appeals reversed, concluding that a dog sniff is not a search, and therefore probable cause is not required to conduct a dog sniff. Wiegand, 621 N.W.2d at 478.

I.

We are asked to determine whether the Fourth Amendment to the U.S. Constitution or Article I, Section 10, of the Minnesota Constitution require probable cause or a reasonable, articulable suspicion of drug-related criminal activity before a narcotics-detection dog may be used around the exterior of a motor vehicle stopped for an equipment violation. This case also presents us with the related issue whether the use of the narcotics-detection dog in this case was within the permissible scope of the limited investigation occasioned by a stop for a routine equipment violation. We review de novo a lower court's ruling on constitutional questions. State v. Wicklund, 589 N.W.2d 793, 797 (Minn.1999). We also review de novo a district court's determination of probable cause as it relates to warrantless searches. Matter of Welfare of G.M., 560 N.W.2d 687, 690 (Minn.1997). When reviewing the legality of a search or seizure, an appellate court will not reverse the district court's factual findings unless clearly erroneous or contrary to law. Id.

II.

We first consider whether a dog sniff of a motor vehicle stopped for a routine equipment violation is a search requiring probable cause. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the U.S. Supreme Court concluded that a dog sniff of luggage in a public place is not a search that requires probable cause.² Id. at 707, 103 S.Ct. 2637. The Court reasoned as follows:

[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a "search" within the meaning of the Fourth Amendment.

462 U.S. at 707, 103 S.Ct. 2637. The Court explicitly limited its ruling to the exposure of luggage in an airport, a public place, to a dog sniff, which suggests the possibility that a dog sniff under different circumstances might be treated differently.

Indeed, the analysis of permissible searches and seizures necessarily requires consideration of the particular privacy interests in the place or item to be searched. In the Court's recent decision in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Court reiterated the primacy of the home in the array of protected spaces. The Court held that use of thermal-imaging devices that detect heat in a home from the public street constitutes a search under the Fourth Amendment, in part because the sense-enhancing technology allowed the government to obtain information that it could not have otherwise obtained without physical intrusion.³ 533 U.S. at 34-35, 121 S.Ct. 2038. While Kyllo involved both the home and a piece of technical equipment much different from a dog, its reasoning suggests that a dog sniff of a home might lead a court to conclude that a search requiring probable cause took place.⁴

We consider, then, the nature of the privacy interest in an automobile.⁵ Automobiles constitute "effects" under the Fourth Amendment, and therefore the constitutional standard of reasonableness applies to searches and seizures of automobiles. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). However, the U.S. Supreme Court has determined that the privacy expectation surrounding an automobile is less than that of a home because the automobile generally does not serve as the repository of personal effects. Cardwell, 417 U.S. at 590, 94 S.Ct. 2464. The privacy expectation is also diminished because of the significant governmental regulation of vehicles. South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). However, "[t]he word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As the Court has recognized, "[a] search, even of an automobile, is a substantial invasion of privacy." United States v. Ortiz, 422 U.S. 891, 896, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); see also State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977)

(holding privacy interest in automobile constitutionally protected).

However, the U.S. Supreme Court has indicated that the holding from Place that a dog sniff is not a search would apply to a dog sniff conducted around the exterior of a motor vehicle. Edmond, 531 U.S. at 40, 121 S.Ct. 447.⁶ Edmond involved a vehicle checkpoint set up to interdict illegal drugs. The Court stated that "an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the...