State v. Lugo, A15–1432.

887 N.W.2d 476

STATE of Minnesota, Respondent,

v.Jose Martin LUGO, Jr., Appellant.

No. A15–1432.

Supreme Court of Minnesota.

Nov. 30, 2016.

Lori Swanson, Attorney General, Saint Paul, MN; and Kathleen A. Kusz, Nobles County Attorney, Travis J. Smith, Special Assistant County Attorney, Slayton, MN, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant State Public Defender, Saint Paul, MN, for appellant.

OPINION

LILLEHAUG, Justice.

Following a search of his vehicle during a traffic stop, appellant Jose Martin Lugo, Jr., was charged with second-degree controlled substance crime, driving after revocation, and possession of drug paraphernalia. Lugo moved to suppress the evidence obtained during the search, arguing that police illegally expanded the scope and duration of the stop without a reasonable, articulable suspicion. The district court granted Lugo's motion to suppress and dismissed both drug-related charges.

The State appealed to the court of appeals. In an unpublished opinion, the court applied de novo review and held that the expansion of the stop was supported by a reasonable, articulable suspicion. The court of appeals reversed the district court's order suppressing the evidence and dismissing the charges, and remanded the case. Lugo appealed. We granted review to consider two issues.

The first issue is whether our decision in State v. Webber, 262 N.W.2d 157 (Minn.1977), established a special, deferential standard of review for a district court's legal conclusions in pretrial appeals by the State under Minn. R.Crim. P. 28.04, subd. 1. The second issue is whether a dog-sniff of Lugo's vehicle was supported by a reasonable, articulable suspicion.

On the first issue, we hold that Webber did not establish a deferential standard of review in pretrial criminal appeals by the State, and, to the extent our language in Webber suggests otherwise, that portion of the opinion is overruled. On the second issue, we hold that, under the totality of the undisputed facts, the dog-sniff was supported by a reasonable, articulable suspicion. Thus, we affirm the court of appeals.

On the morning of February 23, 2015, Agent Joe Joswiak of the Buffalo Ridge Drug Task Force was conducting surveillance at what he considered to be a “known drug house” in Worthington. Joswiak could see a vehicle parked in the driveway of the home, with a single occupant sitting in the driver's seat. The Nobles County dispatcher advised Joswiak that the vehicle's registered owner was Justin Keodouangdy. A felony warrant had been issued in Anoka County for Keodouangdy's arrest for possession of a firearm by an ineligible person and multiple counts of fifth-degree possession of a controlled substance.

As Joswiak watched, the occupant left the vehicle and walked toward the house. After about 12 minutes, the person who had been in the vehicle returned and drove away. At Joswiak's request, Sgt. Tim Gaul of the Worthington Police Department located the vehicle and initiated a traffic stop by activating the overhead lights on his squad car.

The vehicle did not immediately stop, so Gaul followed it a short distance. The vehicle turned into a parking lot, made a 180–degree turn, drove 30 to 50 yards across the parking lot, and finally came to a stop. After the vehicle stopped, Gaul saw the driver bend over out of sight for a brief moment, before sitting up again. By this time, Joswiak had arrived at the scene, and together he and Gaul approached the vehicle.

Joswiak recognized the driver as Lugo. Joswiak knew that Lugo's driving privileges had been revoked and that Lugo had previously been arrested for fifth-degree drug possession.

Gaul confirmed by computer that Lugo's driving privileges were revoked and that he did not own the vehicle. When Gaul asked Lugo who the vehicle's owner was, Lugo initially replied “Jason,” but quickly changed his answer to his cousin “A.I.” At one point in the brief questioning, Lugo said, “man just take me to jail, please.” Gaul asked if there was anything illegal in the vehicle. Lugo replied that as far as he knew there was not.

While Gaul attended to Lugo, Joswiak peered into the vehicle. He observed what he later described as “numerous indicators of illegal drug trafficking”: the vehicle's center console molding had been removed, the “plastic pieces ... had been messed with,” and the vehicle had a “lived-in look.” Joswiak also considered as indicative of drug trafficking the facts that Lugo took an “unusual[ly] long time to stop” after Gaul activated his overhead lights; Lugo was observed leaving a known drug house; two months earlier Lugo had been arrested for possession of a controlled substance and fleeing a peace officer on foot; and approximately two years earlier, in June or July 2013, the vehicle's owner, Keodouangdy, was arrested in Worthington for fifth-degree drug possession, and a meth pipe was found in his vehicle.

Based on his observations and on his drug-enforcement experience, Joswiak arranged for Worthington police officer Mark Riley to bring a trained drug-detection dog to sniff the vehicle exterior. The dog alerted to the presence of drugs at the driver's door and at the trunk. Joswiak then searched the vehicle and found methamphetamine concealed in a deodorant container in the back seat. Joswiak also found a glass pipe containing burned methamphetamine residue hidden in a sock in the trunk.

The State charged Lugo with second-degree controlled substance possession, Minn.Stat. § 152.022, subds. 2(a)(1), 3(b) (2014) (possession of methamphetamine); driving after revocation, Minn.Stat. § 171.24, subd. 2 (2014) ; and possession of drug paraphernalia, Minn.Stat. § 152.092 (2014). Lugo moved to suppress the evidence seized during the vehicle search. He conceded that officers had a sufficient factual basis to stop him. But he argued that the officers illegally expanded both the duration and the scope of the stop, by detaining him while they waited for the dog to arrive, and by conducting the dog-sniff, all without a reasonable, articulable suspicion that Lugo was engaged in drug-related criminal activity.

At an evidentiary hearing, the district court received the officers' incident reports in evidence and heard testimony from Officer Joswiak. The court granted Lugo's motion to suppress. The court found Joswiak's testimony to be credible, but it agreed with Lugo that the undisputed facts articulated by Joswiak did not establish a reasonable, articulable suspicion of criminal drug activity. The court cited the absence of any “visible signs” in the “lived-in” vehicle of drug use or drug trafficking; the lack of evidence that Lugo was under the influence of a controlled substance; and the lack of testimony or argument about why a vehicle's messy interior is indicative of drug trafficking. The court declined to rely on Lugo's “nervousness,” noting that case law in Minnesota shows great reluctance to rely on this factor to support a reasonable, articulable suspicion. The court conceded that Lugo's driving behavior was “odd.” But in the absence of evidence that Lugo was under the influence of drugs, the court stated, odd driving behavior is not indicative of criminal drug activity. Finally, the court determined that Lugo's criminal history did not support a reasonable, articulable suspicion, because Lugo had only been charged, and not convicted; the conduct underlying the charges occurred almost four months before this incident; and Gaul's pat-search of Lugo revealed no drugs or paraphernalia. Looking at all these facts together, the court concluded there was not a reasonable, articulable suspicion of criminal drug activity. Thus, concluded the court, the expansion of the stop was unlawful and all evidence seized as a result must be suppressed. The court ordered that both drug-related charges be dismissed.

The State appealed to the court of appeals, which reversed the district court in an unpublished opinion. State v. Lugo, No. A15–1432, 2016 WL 764514 (Minn.App. Feb. 29, 2016). The court noted that when the State appeals from a pretrial suppression order under Minn. R.Crim. P. 28.04, “it ‘must clearly and unequivocally show both that the [district] court's order will have a critical impact on the state's ability to prosecute the defendant successfully and that the order constituted error.’ ” Id. at *2 (quoting State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) ). Because the district court had dismissed two of the three charges against Lugo, the court had no difficulty finding critical impact. Id.

With respect to whether the State had shown clear error, the court stated that it reviewed the district court's factual findings for clear error and its legal determinations de novo. Id. at *3 (citing State v. Gauster, 752 N.W.2d 496, 502 (Minn.2008) ). In this case, with the relevant facts undisputed, whether the search was justified by reasonable suspicion was “a legal determination ... review[ed] de novo.” Id. (citing State v. Burbach, 706 N.W.2d 484, 487 (Minn.2005) ).

The court acknowledged that Joswiak did not explain how each of the factors he articulated formed an objective, particularized basis for his suspicion that Lugo was involved in drug trafficking, and that the State's memorandum of law provided some of the missing explanation, but not all. Id. at *4. But “[d]espite the [S]tate's failure to precisely explain each fact that formed a basis for the officers' reasonable suspicion,” the court stated, “the [S]tate did set forth ‘at least a minimal level of objective justification.’ ” Id. (quoting State v. Timberlake, 744 N.W.2d 390, 393 (Minn.2008) ). The court agreed with the district court that several facts offered by the State to support the expanded stop were not indicative of criminal drug activity, but the “police officers were able to ‘point to something objectively supporting [their] suspicion,’ ” id. (quoting State v. Britton, 604 N.W.2d 84, 87 (Minn.2000) ), including reason to...