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Burnsville police acted properly in using a narcotics-detection dog outside the apartment door of a man suspected of illegal drug activity, the Minnesota Supreme Court ruled.
In a 5-2 decision, the court found that police needed only reasonable, articulable suspicion - not probable cause - that the defendant was engaged in illegal activity to conduct the dog sniff. Moreover, information from a private citizen informant - that maintenance workers believed they saw marijuana-growing lights in the apartment and that the defendant would not let the workers in to fix a water leak - supported a finding that the police had reasonable suspicion that there was illegal drug activity inside the apartment.
Justice Alan Page, joined by Justice Helen Meyer, dissented from the majority's opinion.
"This case marks a significant departure from our constitutional jurisprudence because it is the first time the court has authorized the search of a private residence based on anything less than probable cause in the absence of exigent circumstances," Page wrote. "It is a departure that takes us down a road that erodes Fourth Amendment protections in one's home. That is a road I am unwilling to go down. "
The 31-page decision is State v. Davis.
Eden Prairie attorney Derek A. Patrin, who represented the defendant, views the decision as backsliding. "Minnesota's Supreme Court was heading in the direction of providing increased protection for individuals," he said.
Patrin explained that the position he advocated - that a dog sniff outside an apartment door is actually a search inside a residence - is one accepted by a minority of other jurisdictions. "But the new guard in the [Minnesota] Supreme Court didn't want to take it that far," he said.
Patrin noted that drug dogs are certainly not infallible, and there was not much other evidence to support the warrant here. "There should be other investigative tools to use that are less invasive than [a dog sniff]," he said. But this will always be the one that police will use now, he added.
Dakota County Attorney James C. Backstrom, whose office represented the state at the trial court level, applauded the court's ruling.
"The decision supports the legitimate and important need of law enforcement to use narcotics-detection dogs to aid in efforts to address a significant problem - the use and distribution of illegal drugs. "
Citizen informant
On Aug. 27, 2004, an officer with the Burnsville Police Department obtained a search warrant for defendant Scott Evan Davis' apartment. The application included the following facts:
? An apartment complex employee told the officer that maintenance employees believed they observed marijuana-growing lights inside the defendant's apartment and that he would not let them come into his apartment to repair a possible water leak;
? A narcotics-detection dog alerted to the presence of a narcotic odor at the door of the defendant's apartment; and
? The defendant had a history of criminal activity.
The officers executed the warrant on Aug. 31, gaining access to the defendant's apartment with a key from management. Various items of contraband were found and the defendant was charged with two counts of controlled substance crimes in the fifth degree and one count of possession of drug paraphernalia. The defendant moved to suppress the evidence, arguing that the search violated his Fourth Amendment rights.
A Dakota County District Court judge denied the motion, concluding that the police needed reasonable, articulable suspicion to use the dog and that the standard was met. The Court of Appeals affirmed.
Levels of suspicion
The Supreme Court began by considering the level of suspicion necessary - probable cause or reasonable articulable suspicion - to sustain the use of a narcotics-detection dog in the common hallway of an apartment building.
The defendant argued that the Minnesota Constitution requires probable cause to sustain the use of the narcotics-detection dog in the hallway outside his apartment because it was, in effect, a search "inside" his private residence.
Gildea explained that as part of the inquiry, Minnesota courts balance 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.
The issue was whether the level of intrusion upon the defendant's privacy interest - through the police walking a narcotics-detection dog outside his residence in the common hallway - was sufficiently great that it rendered the search "unreasonable" unless it was supported by probable cause.
In this case, the police did not enter the area in which the defendant had the greatest expectation of privacy, his residence. Rather, they were outside his residence in the common hallway. The defendant, nonetheless, argued that his privacy interest inside his residence was intruded upon because the police conducted the dog sniff to detect something inside his residence.
The court disagreed, noting that the only intrusion on the defendant's privacy interest that occurred through the use of the dog occurred because the dog can sniff what the public cannot. "This intrusion, however, is minimal," Gildea wrote.
Because the intrusion was minimal, the court went on to consider the government's interest.
Prior cases establish that the government has a significant interest in using narcotics-detection dogs in combating drug crimes and that the public's interest in effective criminal investigations is served though the use of this investigative tool, Gildea wrote.
"When we balance the minimal intrusion on [the defendant's] privacy interests inside his residence against the governmental interest in the use of narcotics-detection dogs as an investigative tool to combat drug crime, we conclude that the police needed a reasonable, articulable suspicion to walk a narcotics-detection dog down the common hallway outside [the defendant's] apartment," Gildea wrote.
The court explained that the reasonable suspicion standard is consistent with the court's goals of preserving the law enforcement utility of narcotics-detection dogs and ensuring that the police are not allowed to use them "at random and without reason. "
The high court went on to find that the police in this case had reasonable articulable suspicion to support using the dog outside the defendant's apartment.
The information from a private citizen informant - that maintenance workers believed they saw marijuana-growing lights in the apartment and that the defendant would not let the workers in to repair a possible water leak - gave officers more than an "unarticulated hunch," the court said.
"It was reasonable for police to infer from these facts that [the defendant] might be growing marijuana in his apartment," Gildea wrote. "Because the police had a reasonable suspicion that [the defendant] had illegal drugs inside his apartment, [his] rights under the Minnesota Constitution were not violated when the police conducted a dog sniff outside his apartment door. "

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