                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-1862

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                  Kyle Mark Watson,
                                      Appellant.

                               Filed November 14, 2016
                                      Affirmed
                                     Kirk, Judge

                              Scott County District Court
                               File No. 70-CR-14-15705

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

John G. Westrick, Westrick & McDowall-Nix, PLLP, St. Paul, Minnesota (for appellant)

      Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and

Bjorkman, Judge.

                        UNPUBLISHED OPINION

KIRK, Judge

      Appellant challenges the district court’s denial of his pretrial motion to suppress

evidence found in his apartment, asserting that law enforcement conducted an illegal dog
sniff for narcotics and impermissibly relied on the results of that search to support the

search warrant. We affirm.

                                        FACTS

      On March 15, 2014, Officer Anderson of the Shakopee Police Department

investigated a disturbance at 1055 Spencer Street South in Shakopee. On scene, a named

citizen, who had been fighting with appellant Kyle Mark Watson, informed Officer

Anderson that appellant sells marijuana and that he keeps it in a safe in his garage. A

check of appellant’s record revealed multiple drug-related convictions and that he resided

at 1055 Spencer Street South, #103.

      On March 17, Detective Affeldt of the Shakopee Police Department walked by

appellant’s garage and smelled an odor of marijuana. Deputy Sames of the Scott County

Sheriff’s Office responded to the garage with his certified police narcotics detecting

canine partner, Buddy. Buddy alerted to the presence of a narcotic at the threshold of the

garage. Buddy also alerted to appellant’s apartment door in the common hallway of the

apartment building.

      On March 26, the Southwest Metro Drug Task Force executed a search warrant,

which was obtained based on the above information, at appellant’s apartment. Officers

discovered marijuana, OxyContin, and drug paraphernalia in appellant’s apartment.

      Appellant was charged with fifth-degree possession of a controlled substance. An

omnibus hearing was held to address appellant’s motion to suppress the evidence

discovered in his apartment, which challenged the legality of the dog sniff. The district

court denied the motion, concluding that the common area of appellant’s apartment


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building is not curtilage, and therefore not subject to Fourth Amendment protections, and

that the dog sniff was properly based on reasonable articulable suspicion. Appellant was

found guilty of fifth-degree possession of a controlled substance.

       This appeal follows.

                                      DECISION

I.     The warrantless dog sniff outside the door of appellant’s apartment did not
       violate his constitutional right to be free from unreasonable searches and
       seizures.

       “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) (quotation omitted). “If the underlying facts are not in dispute, we apply a

de novo standard of review to a district court’s denial of a motion to suppress evidence.”

State v. Luhm, 880 N.W.2d 606, 611 (Minn. App. 2016) (citing Gauster, 752 N.W.2d at

502). Here, the facts are not in dispute.

       A dog sniff may be a search under the Minnesota Constitution. See State v.

Carter, 697 N.W.2d 199, 211 (Minn. 2005). However, police only need reasonable

articulable suspicion, not probable cause, to conduct a dog sniff in the common hallway

of an apartment building.      State v. Davis, 732 N.W.2d 173, 181-82 (Minn. 2007).

Whether an officer has reasonable articulable suspicion is based on the totality of the

circumstances. Id. at 182 (citing State v. Martinson, 581 N.W.2d 846, 852 (Minn.

1998)).




                                             3
      Here, the district court properly concluded that law enforcement had reasonable

articulable suspicion to support the dog sniff outside appellant’s apartment. The district

court therefore properly denied appellant’s motion to suppress evidence.

      A.     The area outside of appellant’s apartment, in the common hallway of
             the building, is not curtilage.

      Appellant first argues that the dog sniff, conducted from the common hallway of

his building, violated his constitutional right to be free from unreasonable searches and

seizures. U.S. Const. Amend. IV; Minn. Const. art. X, § 1. Appellant asserts that a

search warrant, and therefore probable cause, was required to conduct the dog sniff

because the area outside his apartment door is curtilage. Appellant cites Florida v.

Jardines, 133 S. Ct. 1409 (2013), in support of his argument, but he fails to acknowledge

that Jardines involved a dog sniff of the front door of a detached single-family home

from the front porch of that home. Jardines, 133 S. Ct. at 1415 (recognizing that the

front porch of a home is curtilage). By relying on Jardines, appellant suggests that the

common hallway of his apartment building, abutting the door to his apartment, is entitled

to the same Fourth Amendment protection as the front porch of a home. This is contrary

to established Minnesota law. The common hallway of an apartment building is not

considered curtilage under Minnesota law, and only reasonable articulable suspicion is

required to justify a dog sniff. Davis, 732 N.W.2d at 181-82; see also Luhm, 880 N.W.2d

at 616-17 (holding the area was not curtilage despite any ownership interest the occupant

may have had in the unit and despite the building being secured).




                                            4
       The district court did not err when it concluded that the area outside of appellant’s

apartment door is not curtilage, and that only reasonable articulable suspicion was

required to support the dog sniff.

       B.     The citizen informant’s tip was reliable.

       Appellant next argues that the tip that ultimately led to the dog sniff in this case

was unreliable and that law enforcement and the district court improperly considered and

relied on the tip. Appellant claims that the informant only alleged that appellant was

selling marijuana to avoid criminal liability, which prevents his tip from being reliable.

See State v. Cox, 294 Minn. 252, 254 n.1, 200 N.W.2d 305, 307 n.1 (Minn. 1972) (noting

that information provided by a person with a criminal background or involvement in the

reported event is not presumed reliable). Without a reliable tip, appellant argues that law

enforcement lacked reasonable articulable suspicion to support the dog sniff.

       The state argues that the tip in this case was properly presumed to be reliable

because “[w]e presume that tips from private citizen informants are reliable.” Davis, 732

N.W.2d at 182. “This is particularly the case when informants give information about

their identity so that the police can locate them if necessary.” Id. at 183.

       When evaluating the reliability of a tip, this court must examine both “the

informant and the informant’s source of information and judge them against all of the

circumstances.” In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997) (quotation

omitted).   Here, there is no evidence in the record to call the citizen informant’s

reliability, or the reliability of the information, into question.       The informant was

identified when he provided the tip, and there is no evidence in the record that he was


                                              5
involved in criminal activity. His tip was also corroborated by Detective Affeldt’s

observation of an odor of marijuana coming from appellant’s garage and appellant’s

history of drug-related convictions. State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998)

(“An informant’s reliability may be established by sufficient police corroboration of the

information supplied, and corroboration of even minor details can ‘lend credence’ to the

informant’s information where the police know the identity of the informant.”).

       Based on these circumstances, law enforcement and the district court properly

incorporated the tip into the determination that reasonable articulable suspicion existed to

justify the dog sniff.

       C.      There was a nexus between the information regarding drug activity in
               appellant’s garage and possible drug activity in his apartment.

       Finally, citing Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317 (1983), and State v.

Souto, 578 N.W.2d 744 (Minn. 1998), appellant argues that, even if the tip was reliable,

the dog sniff outside his apartment was impermissible because the informant only

reported that appellant had marijuana in his garage, not in his apartment. Therefore,

according to appellant, there was no nexus connecting his apartment to drug activity.

       The state asserts that appellant’s reliance on Souto is misplaced because the Souto

court was asked to determine whether probable cause existed to justify a search of the

defendant’s home, not whether reasonable articulable suspicion existed to support a dog

sniff in a common hallway. Souto, 578 N.W.2d at 748. Appellant’s reliance on Gates is

also misplaced because the Gates court addressed whether probable cause existed to




                                             6
support a search warrant, not whether reasonable articulable suspicion existed to support

a dog sniff. Gates, 462 U.S. at 216, 103 S. Ct. at 2320-21.

       The state also notes that a “direct connection” or “nexus” between the items

sought and the place searched may be established by inference. State v. Yarbrough, 841

N.W.2d 619, 623 (Minn. 2014) (When establishing a connection between a place to be

searched and evidence sought, “[a] nexus may be inferred from the totality of the

circumstances . . . [including] the type of crime, the nature of the items sought, the extent

of the defendant’s opportunity for concealment, and the normal inferences as to where the

defendant would usually keep the items.”); State v. Ruoho, 685 N.W.2d 451, 458 (Minn.

App. 2004) (“Observations of a suspect’s drug trafficking that occurs at a place other

than a suspect’s current residence can support probable cause for the issuance of a search

warrant for the suspect’s residence.”), review denied (Minn. Nov. 16, 2004).

       Here, appellant was reportedly engaged in selling drugs out of his garage, located

on the same premises as his apartment. This information, combined with his drug-related

criminal history, the mobility of marijuana and drug paraphernalia, the odor of marijuana

(detected by law enforcement without Buddy) outside his garage, and Buddy’s alert to the

presence of a narcotic outside his garage, provided reasonable articulable suspicion that

appellant may have drugs in his apartment as well as his garage. This reasonable

articulable suspicion justified the dog sniff outside appellant’s apartment. See Ruoho,

685 N.W.2d at 457 (noting that when persons are suspected of drug dealing, it is

“reasonable to assume that they would keep evidence . . . in their place of residence,” and

that past involvement with drug activity is also relevant); Luhm, 880 N.W.2d at 621


                                             7
(holding that reasonable articulable suspicion existed to support a dog sniff of a

condominium doorway when the resident had reportedly been robbed of “approximately

25 pounds of marijuana and approximately $15,000” because that suggested that he “may

be in possession of relatively large quantities of controlled substances”).

       Because law enforcement had reasonable articulable suspicion to justify the dog

sniff, the results of the dog sniff were properly included in the search warrant affidavit,

and the district court properly denied appellant’s motion to suppress the evidence

discovered in his apartment.

       Affirmed.




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