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Recently, the Minnesota Supreme Court affirmed the court of appeals in a drug case addressing two important issues: (1) the proper standard of review for a district court’s conclusions of law in appeals by the State; and (2) whether a dog-sniff of a car was supported by reasonable articulable suspicion. This blog is two parts. Today, we will discuss the dog-sniff issue and the new challenges it creates for criminal defense lawyers. Next week, we will discuss the standard of review issue, which will be especially important to criminal appellate lawyers who are preparing for a case in which the district court has ruled in their client’s favor.

In State v. Lugo,[1] an agent of the Buffalo Ridge Drug Task Force was conducting surveillance of a known drug house in Worthington. The agent was keeping his eye on a man sitting in a car parked in the driveway. After running the plates, he discovered the registered owner had a felony warrant out for drug possession. As the agent watched, the driver got out of the car and walked into the house. After 12 minutes he returned and drove away. The car was stopped, but the driver did not immediately pull over. It turned into a lot, turned, drove another 50 yards, then settled into a designated parking spot. At this time, the agent saw him bend over out of sight for a brief moment before sitting upright again.

The agent recognized the driver as Jose Lugo, (not the registered driver with a warrant) and he knew that Jose did not have a valid license and had been arrested for drug possession two months earlier. He asked Jose who the owner of the car was, and Jose lied, saying it belonged to his cousin A.I, before saying “man just take me to jail, please.” The agent peeked his head into the car itself, and noticed that the center console had been removed and that the car had a “lived in look.” Based on his experience, he considered these to be signs of “illegal drug trafficking,” and combined with Jose’s presence at the drug house and “unusual behavior” he ordered a drug-detection dog to sniff the car. Methamphetamine was found in the backseat, and Jose was arrested and charged with second-degree drug possession.

Jose’s defense attorney did not challenge the basis for the initial traffic stop, but rather moved to suppress the evidence found as an illegal expansion of the stop without reasonable articulable suspicion that a more serious crime was going on other than Jose not having a valid license.

Reasonable articulable suspicion to expand a stop is based on the totality of the circumstances. This means that every single clue the agent noticed that pointed toward Jose’s potential guilt has to go into the pot, and it needs to rise to “at least a minimal level of objective justification.” Even if an innocent explanation exists, it does not prevent the clue from going in the pot.

For example, if the police pull you over for driving 55 in a 50 and notice: (1) you have red eyes; (2) you smell like alcohol; and (3) you seem nervous, would that give them enough reasonable articulable suspicion to expand the stop to field sobriety tests? Probably, even if you are just merely tired, someone spilled a drink on you, and you get naturally nervous around police. It all goes in the reasonable articulable suspicion pot, and the court decides if it suffices.

In Lugo’s case, the district court granted his motion to suppress, and pointed to the lack of any “visible signs” of drug activity like syringes, pipes, or baggies. They did not buy the argument that a “lived in car” (i.e. a messy car) was really objective enough to point toward drug trafficking, and they didn’t think much of the fact that Jose was “nervous” especially because there was no indication he was under the influence. As far as his previous arrest, the district considered it, but assigned it little value because Jose had only been charged and not convicted, and the incident was nearly 4 months prior. As a result, they considered bringing in the drug sniff dog to be unlawful, and the evidence was suppressed. The State appealed.

The court of appeals rebuffed most of the district court’s reasons in its reversal. They believed the officer’s suspicion to expand the search was based on reasonable suspicion, and not based on a hunch or speculation. Therefore, the stage was set for the Minnesota Supreme Court to weigh in, and they found the following five clues enough to justify the expansion:

(1) Jose was seen leaving a drug house;

(2) Jose took a long time to stop, and when he did so he leaned over in his seat as if to hide something;

(3) Jose had recently been arrested and although he wasn’t convicted yet, because he had been arrested for a similar offense (drug possession) it’s more relevant;

(4) Jose lied about the identity of the car’s owner; and

(5) Jose said “man, take me to jail, please” which suggested consciousness to the court of guilt.

The court said that, “as a matter of law, these undisputed facts, considered in their totality, objectively constitute a reasonable, articulable suspicion of drug activity that supported the expansion of the vehicle stop to include a dog-sniff.”[2] Interestingly enough, the majority opinion agreed with the district court’s determination that evidence of the missing console and messy car was not clearly objective enough to point to drug trafficking, but it did not matter. Based on this ruling, the minimum bar for reasonable articulable suspicion supporting a dog-sniff expansion appears to have been lowered. If a client is seen leaving a home that has had incidents with drugs in the past, the client has been arrested for drugs, and the client exhibits unusual driving behavior or is evasive with the police, that will be enough to bring them in.

The weight the Minnesota Supreme Court assigned to some of the factors is questionable, especially in light of the fact that a pat down of Jose revealed nothing, he was not intoxicated or under the influence, and there was nothing in the car in plain sight that suggested drug use.

First, the justices found it “telling” that Jose asked the agent to take him to jail, even though it had been confirmed that he was driving without a valid license. His remark could have clearly suggested consciousness that he had committed that crime, not the one of drug trafficking.

Second, the fact that someone is present in a neighborhood frequented by drug dealers is not supposed to make it into the pot.[3] The court addressed this by pointing out that Jose was seen at a specific “drug house” under surveillance and not just seen present in a drug area, but the distinction seems like a thin one when the record does not reflect that the agent had ever seen Jose at the house before.

Third and finally, Jose had only been previously arrested for drug possession, not possession with intent to sell. The holding of this case states, in broad language, that arrests not resulting in conviction can still go into the pot when the arrest “was for an offense of the same general nature.” The court points to State v. Yarbrough for precedent, but the facts of Yarbrough involved a defendant who had been previously arrested for being a wholesaler. Historically, the court has been careful to draw more of a distinction between drug wholesalers and casual users.[4] It may be reasonable to infer that clients with previous arrests or convictions for drug possession will be subject to more frequent dog-sniff expansions as a result of this case. But, the court has spoken.

Matthew B. Trevor graduated summa cum laude from Mitchell Hamline School of Law in St. Paul. There, he was an Assistant Editor on Law Review and received CALI Awards for both Criminal and Constitutional Law. He was also a Mitchell Hamline Fellow; clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. Criminal Defense Attorney St. Paul MN; Minnesota Criminal Lawyer; and St. Paul Drug Crimes Lawyer.

[1] State v. Lugo, No. A15-1432, 2016 WL 6992464 (Minn. Nov. 30, 2016).

[2] Id. at *10.

[3] Brown v. Texas, 443 U.S. 47, 51–52 (1979).

[4] State v. Harris, 589 N.W.2d 782, 789 (Minn. 1999).

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