                         This opinion will be unpublished and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
                                    A16-0060

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                               Cassandra Lee Lundgren,
                                     Appellant.

                             Filed December 27, 2016
                                     Affirmed
                                   Worke, Judge
                        Concurring specially, Bratvold, Judge
                          Dissenting, Cleary, Chief Judge

                              Scott County District Court
                               File No. 70-CR-14-16140

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

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

Christian R. Peterson, Anoka, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and

Bratvold, Judge.

                        UNPUBLISHED OPINION

WORKE, Judge

      Appellant challenges her drug-possession conviction arguing that (1) the

warrantless dog sniff outside of her apartment door was unconstitutional, (2) without
information from the dog sniff, the district court lacked probable cause to issue the search

warrant, and (3) the information in the search warrant was stale. Because the dog sniff was

constitutional and the information supporting the search warrant was not stale, we affirm.

                                         FACTS

       On August 25, 2014, an apartment manager informed an officer with the Shakopee

Police Department that tenants in her building complained about drug use in six

apartments. Officers conducted a dog sniff, in which the dog alerted to the presence of

drugs in several apartments, including the apartment occupied by appellant Cassandra Lee

Lundgren. One officer knew that an occupant of Lundgren’s apartment had been arrested

twice for methamphetamine possession and that Lundgren was a methamphetamine user.

The officer had also previously responded to a call at the apartment building involving a

woman who overdosed on heroin, and learned that the woman and Lundgren were friends

and used drugs together.

       On September 4 or 5, 2014, a certified drug-detecting dog performed a sniff for

narcotics in a common interior hallway outside of Lundgren’s apartment door. The dog

indicated the presence of narcotics at the threshold of Lundgren’s apartment. Based on this

information, officers obtained a search warrant on September 5. The warrant was executed

on September 11, and police found drug paraphernalia and methamphetamine in

Lundgren’s apartment. Lundgren was charged with fifth-degree drug possession, in

violation of Minn. Stat. § 152.025, subd. 2(1) (2014).

       Lundgren moved to suppress the drugs and dismiss the charge, arguing that the dog

sniff outside of her apartment was unlawful, without the dog-sniff information the search


                                             2
warrant lacked probable cause, and the information in the search warrant was stale at the

time it was executed. After the district court denied Lundgren’s motion, she stipulated to

the state’s case pursuant to Minn. R. Crim. P. 26.01, subd. 4, in order to preserve the

dispositive pretrial issues for appeal. The district court found Lundgren guilty of fifth-

degree drug possession and stayed adjudication under Minn. Stat. § 152.18, subd. 1 (2014).

This appeal follows.

                                     DECISION

       When the underlying facts are not in dispute appellate courts apply a de novo review

to a district court’s denial of a motion to suppress evidence. State v. Gauster, 752 N.W.2d

496, 502 (Minn. 2008).

Dog sniff

       Lundgren argues that the dog sniff outside of her apartment door was

unconstitutional based on two theories. First, she argues that, under the property-rights

analysis in Florida v. Jardines, police needed a warrant to conduct a dog sniff outside of

her apartment door because that area was within the curtilage of her home. 133 S. Ct. 1409,

1417-18 (2013). Alternatively, she argues that under the privacy-rights analysis in Justice

Kagan’s concurring opinion in Jardines, the dog sniff outside of her apartment door

permitted officers to obtain information that was inside her home, intruding on her

reasonable expectation of privacy and constituting a search under the Fourth Amendment.

133 S. Ct. at 1418 (Kagan, J., concurring) (citing Kyllo v. United States, 533 U.S. 27, 121

S. Ct. 2038 (2001)).




                                            3
Property-rights analysis

       The Fourth Amendment prohibition against unreasonable searches and seizures

extends to the curtilage of a home. State v. Sorenson, 441 N.W.2d 455, 458 (Minn. 1989).

Curtilage has been defined “as the area to which extends the intimate activity associated

with the sanctity of a [person’s] home and the privacies of life.” Id. (quotations omitted).

The Minnesota Supreme Court has treated common or shared spaces in multi-family

residences as outside the curtilage because those areas are not within the exclusive control

of one tenant. See State v. Milton, 821 N.W.2d 789, 800 (Minn. 2012) (concluding that

shared stairway of duplex was common area and not curtilage); see also State v. Davis, 732

N.W.2d 173, 179 (Minn. 2007) (concluding that defendant did not have an expectation of

privacy in the common hallway of apartment building); State v. Krech, 403 N.W.2d 634,

637-38 (Minn. 1987) (concluding that defendant did not have a reasonable expectation of

privacy in backyard of duplex).

       Similarly, in State v. Luhm, this court recently considered whether the area

immediately outside of a condominium door was within the curtilage and subject to Fourth

Amendment protection. 880 N.W.2d 606, 618 (Minn. App. 2016). Luhm involved facts

nearly identical to those in this case: after receiving a tip of drug possession, the police

entered a secured multi-unit building with the consent of the property-management

company, and used a drug-detection dog immediately outside of the door to Luhm’s

condominium unit. Id. at 609–10. We concluded that the area immediately outside of the

door to Luhm’s condominium unit was not curtilage because (1) the area was not a part of

an enclosure around the area, (2) Luhm did not have exclusive use of the area, and (3) the


                                             4
building rules stated that common hallways must be kept free and clear of personal

property. Id. at 617 (citing United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134,

1139 (1987)). Because the dog sniff was outside the curtilage, the Fourth Amendment did

not apply, and we determined that only reasonable suspicion, under the state constitution,

was required to justify the dog sniff. Id. at 618, 620.

       Here, the district court found that Lundgren’s apartment complex “is the type of

complex where all apartment doors open into common interior hallways.” Because the

hallway is shared with other tenants, unlike the front porch of a single-family home in

Jardines, the district court applied Milton and Davis and concluded that the dog sniff did

not occur on the curtilage. This conclusion is consistent with Luhm.1 Because the area

outside Lundgren’s door was not within the curtilage, the dog sniff did not require a

warrant. We are bound to follow Minnesota Supreme Court precedent and the published

opinions of this court; therefore, we reject Lundgren’s first theory of relief. See State v.

M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010), review denied (Minn. Sept. 21, 2010).

Privacy-rights analysis

       Lundgren argues that, even assuming that the dog sniff outside of her apartment was

performed in an area that was not curtilage, the dog sniff nonetheless invaded her

reasonable expectation of privacy inside of her home.2 Lundgren relies on Justice Kagan’s

concurring opinion in Jardines, which relies on a privacy-rights theory in concluding that


1
  The district court did not have the benefit of Luhm, which was decided after the district
court issued its order denying Lundgren’s suppression motion.
2
  While the Minnesota Supreme Court addressed this question in Davis, it relied only on
the Minnesota Constitution. 732 N.W.2d at 176 n.5.

                                              5
a drug-detecting dog, like the thermal-imaging device in Kyllo, is a sense-enhancing device

not available to the general public, which is used by police to explore details of the home

that would otherwise not be discoverable. 133 S. Ct. at 1418-19 (citing 533 U.S. 27, 34,

121 S. Ct. 2038, 2043). Under the Court’s “reasonable expectation of privacy” test, police

use of sense-enhancing technology to obtain information regarding the interior of a

person’s home intrudes into a constitutionally protected area requiring a warrant. Kyllo,

533 U.S. at 34, 121 S. Ct. at 2043.

         The Minnesota Supreme Court has rejected the reasonable-expectation-of-privacy

analysis in determining whether a dog sniff in a common hallway outside of a residence

constitutes a search inside a private residence. See Davis, 732 N.W.2d at 176, 178-80

(concluding that dog sniff outside of apartment door in common hallway is a search under

the Minnesota Constitution, requiring reasonable suspicion).         The supreme court

distinguished Kyllo because the thermal-imaging unit in that case was “capable of detecting

lawful as well as unlawful activity” inside the residence, whereas the dog was only

“capable of detecting…the odor of illegal narcotics emanating from the inside of [the]

residence.” Id. at 179 (quotation omitted). Lundgren argues that Davis is inapposite. But

as an error-correcting court, we do not reconsider or extend our supreme court rulings. See

Resendiz v. State, 832 N.W.2d 860, 867 (Minn. App. 2013), review denied (Minn. Aug. 20,

2013).

         In sum, Lundgren’s challenges to the dog sniff under property- and privacy-rights

theories fail. Because we determine that the dog sniff was lawful, we need not address




                                             6
Lundgren’s argument that without the information from the dog sniff the search warrant

was issued without sufficient probable cause.

Staleness

       Lundgren next argues that the information in the search warrant was stale by the

time it was executed, and, therefore, police lacked probable cause.

       A search warrant must be executed and returned to the court that issued it within ten

days after its issuance. Minn. Stat. § 626.15(a) (2014). Whether a delay in executing a

search warrant is unconstitutional depends on whether probable cause still exists at the time

of execution of the warrant and whether it is still likely that the items sought will be found

in the place to be searched. State v. Yaritz, 287 N.W.2d 13, 16 (Minn. 1979). “Relevant

circumstances include [1] the character of the crime, [2] the character of the criminal, [3]

the character of the thing to be seized, and [4] the character of the place to be searched.

The passage of time is less significant when an activity is of an ongoing, protracted nature.”

State v. King, 690 N.W.2d 397, 401 (Minn. App. 2005) (citations omitted), review denied

(Minn. Mar. 29, 2005).

       Here, the warrant was signed on September 5 and executed six days later on

September 11. Because only six days elapsed, Minn. Stat. § 626.15 was satisfied. Under

the circumstances, the warrant was also not stale on a constitutional basis for lacking

probable cause. One officer knew that Lundgren was a drug user and that there were

reports of extensive drug use at her apartment. This information was corroborated by the

dog alerting to the presence of drugs and the fact that one occupant had been arrested twice

for drug possession. Further, the officers knew Lundgren had used drugs with a neighbor


                                              7
who overdosed on heroin. See State v. Eling, 355 N.W.2d 286, 290 (Minn. 1984)

(recognizing that collective knowledge of entire police force may be used to establish

probable cause).    These circumstances are relevant to demonstrating the ongoing,

protracted nature of criminal activity at the apartment and establish a fair probability that

drugs would still be present at the apartment six days after the dog sniff. We conclude that

probable cause still existed at the time of the search and the warrant was not stale.

       Affirmed.




                                              8
BRATVOLD, Judge (concurring specially)

       Based on Davis and Luhm, I concur in the affirmance of the district court’s decision

denying Lundgren’s motion to suppress. State v. Davis held that the Minnesota

Constitution requires police to have a reasonable articulable suspicion to conduct a

warrantless dog sniff in the common hallways outside an apartment door. 732 N.W.2d 173,

181 (Minn. 2007). More recently, this court held in State v. Luhm that the hallway

immediately outside the door to a condominium unit is not within the curtilage and

therefore is not subject to Fourth Amendment protection under the U.S. Constitution. 880

N.W.2d 606, 618 (Minn. App. 2016). Here, Lundgren did not challenge the reasonable

articulable suspicion supporting the warrantless search by police, so the question is whether

a warrant is required under either the U.S. or Minnesota Constitution.

       I write separately to acknowledge the forceful concerns articulated in the dissenting

opinion and to discuss gaps in our precedent. First, Minnesota appellate courts have not

recently considered developments in the privacy-rights analysis. Because the appellant in

Luhm presented only the property-rights analysis on appeal, this court did not consider the

privacy analysis that was articulated in the Jardines concurrence and Kyllo. Luhm, 880

N.W.2d at 616 (noting that appellant relies on majority opinion in Jardines and “does not

advance the theory on which the Jardines concurrence is based”); see also id. at 616 n.2

(stating it is unnecessary to analyze Kyllo). While Davis considered Kyllo, Davis

distinguished a dog sniff from thermal imaging in a way that does not align with the view

stated in the Jardines concurrence. While a concurrence is that and nothing more, the

Jardines concurrence is grounded in Kyllo, which applied the privacy-rights analysis in


                                           CS-1
holding that police must obtain a warrant before using thermal imaging to detect drugs

inside the unit of a triplex. Florida v. Jardines, 133 S. Ct. 1409, 1419 (2013) (Kagan, J.,

concurring) (citing Kyllo v. United States, 121 S. Ct. 2038, 533 U.S. 27, 40 (2001)).

       Second, the Minnesota Supreme Court has not considered the curtilage issue for a

police dog sniff of an apartment hallway or door. Davis, 732 N.W.2d at 179 n.10 (“[W]e

express no opinion about what level of suspicion is required to walk a narcotics-detection

dog in an area found to be within the curtilage. We also express no opinion about what

standard would be required if a defendant met her burden of proving that she has a

reasonable expectation of privacy in the apartment building hallway.”) Nor does Luhm

discuss the curtilage of an apartment under Minnesota law. Today’s majority opinion

correctly notes that Minnesota has held that many areas of an apartment complex are not

within the curtilage. Our caselaw, however, has examined only areas remote from the

apartment home, such as the shared stairway and backyard. Thus, the Minnesota Supreme

Court may recognize that an apartment hallway, or the apartment door threshold, is within

the curtilage of a home.

       Because Minnesota has held that “[t]here is no question that a person has a

legitimate expectation of privacy inside her or his residence,” Davis, 732 N.W.2d at 178, I

am concerned about these gaps in our application of U.S. Constitutional precedent and in

our analysis of Minnesota Constitutional protections. As the dissent articulates, our

decisions appear to allocate constitutional protections based on type of home. Because this

allocation correlates with income, race, and ethnicity, I believe that prudence dictates, at

the very least, that we examine and clarify Minnesota precedent on this important issue.


                                           CS-2
CLEARY, Chief Judge (dissenting)

       I respectfully dissent.   Under the Fourth Amendment, appellant’s objectively

reasonable expectation of privacy inside of her apartment was violated when police used a

drug-sniffing dog as a sense-enhancing tool to detect information regarding the interior of

her home. I would hold that under the Fourth Amendment the dog sniff was a search

requiring a warrant.

       While the majority in Florida v. Jardines, 133 S. Ct. 1409, 1417-18 (2013), used a

property-rights analysis, Justice Kagan’s concurrence gives guidance on how courts post-

Jardines should analyze a challenge under the Fourth Amendment—like the challenge

here—to the constitutionality of a dog sniff of a home’s door under the Katz reasonable-

expectation-of-privacy test. See Jardines, 133 S. Ct. at 1418-19 (Kagan, J., concurring).

Under a Fourth Amendment privacy-rights analysis, appellant had a reasonable expectation

of privacy within her home. Payton v. New York, 445 U.S. 573, 589-90, 100 S. Ct. 1371,

1381-82 (1980). Where police use sense-enhancing technology not in general public use

to detect “any information regarding the interior of the home that could not otherwise have

been obtained without physical intrusion into [the home],” a search occurs that is

presumptively unreasonable without a warrant. Kyllo v. United States, 533 U.S. 27, 34,

40, 121 S. Ct. 2038, 2043, 2046 (2001) (emphasis added). “[D]rug-detection dogs are

highly trained tools of law enforcement, geared to respond in distinctive ways to specific

scents so as to convey clear and reliable information to their human partners.” Jardines,

133 S. Ct. at 1418 (Kagan, J., concurring). As Justice Kagan put it, drug-detection dogs




                                           D-1
“are to the poodle down the street as high-powered binoculars are to a piece of plain glass.”

Id.

       Here, the canine was a trained narcotics-detecting dog used by the police as a sense-

enhancing device not generally used by the public. The dog sniffed appellant’s door and

acquired information (the presence of narcotics) that police would not have been able to

obtain without physically intruding into appellant’s apartment. Like the thermal-imaging

device in Kyllo, the dog’s sniff was a search requiring a warrant.

       Recently, the Seventh Circuit Court of Appeals, relying on Justice Kagan’s

concurrence in Jardines, came to the same conclusion: the use of a drug-sniffing dog at a

person’s apartment door in a common hallway is an invasion of that person’s reasonable

privacy expectations requiring a warrant. United States v. Whitaker, 820 F.3d 849, 852-54

(7th Cir. 2016), reh’g denied (June 10, 2016). In Whitaker, the appeals court persuasively

distinguished both United States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645 (1983)

(holding a dog sniff of luggage in a public place is not a search under the Fourth

Amendment), and Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct. 834, 837-38 (2005)

(holding a dog sniff of a lawfully stopped automobile is not a search), because the dog

sniffs in those cases did not implicate the home and the privacy interest inherent in that

setting—the Fourth Amendment’s core concern. Id. at 853.

       While appellant may have a lesser expectation of privacy outside her door in an

apartment hallway than a homeowner does on a screened-in porch, I agree with the Seventh

Circuit’s analysis that a person’s lack of a right to exclude others in an apartment hallway




                                            D-2
does not mean that that person has “no right to expect certain norms of behavior in his

apartment hallway.” Id. The appeals court explained:

                 Yes, other residents and their guests (and even their dogs) can
                 pass through the hallway. They are not entitled, though, to set
                 up chairs and have a party in the hallway right outside the door.
                 Similarly, the fact that a police officer might lawfully walk by
                 and hear loud voices from inside an apartment does not mean
                 he could put a stethoscope to the door to listen to all that is
                 happening inside. Applied to this case, this means that because
                 other residents might bring their dogs through the hallway does
                 not mean the police can park a sophisticated drug-sniffing dog
                 outside an apartment door, at least without a warrant.

Id. at 853-54.

       The Minnesota Supreme Court’s conclusion in State v. Davis, 732 N.W.2d 173, 182

(Minn. 2007), that a dog sniff of an apartment door in a common hallway only requires

reasonable suspicion, is not applicable here. The supreme court noted that it was only

deciding Davis under the Minnesota Constitution and not the Fourth Amendment. Id. at

176 n.5. The Minnesota Supreme Court may interpret the Minnesota Constitution to

provide more protection than the U.S. Constitution, but it may not afford less. State v.

McBride, 666 N.W.2d 351, 361 (Minn. 2003). In light of Jardines, 133 S. Ct. at 1418-19

(Kagan, J., concurring) and the Seventh Circuit’s adoption of the reasoning in Justice

Kagan’s concurrence, the Minnesota Supreme Court’s holding in Davis, 732 N.W.2d at

182, that a dog sniff of an apartment door in a common hallway only requires reasonable

suspicion, falls below the federal constitutional floor.

       In holding that a dog sniff of an apartment door is a “minimal” intrusion, the

Minnesota Supreme Court relied on the Supreme Court’s reasoning in Place that a dog



                                               D-3
sniff is sui generis because it can only determine the presence or absence of narcotics, an

illegal substance. Davis, 732 N.W.2d at 179-80. This reasoning presupposes, though, that

drug-sniffing dogs are always, or even mostly, reliable and rarely have false positives. In

Florida v. Harris, which was decided during the same term as Jardines, the drug-sniffing

dog on two separate occasions alerted for the presence of narcotics that were not present.

133 S. Ct. 1050, 1054 (2013). A Chicago Tribune review of three years of police data

revealed that only 44 percent of alerts from drug-sniffing dogs during traffic stops produced

the discovery of drugs or paraphernalia. Dan Hinkel & Joe Mahr, Tribune Analysis: Drug-

sniffing Dogs in Traffic Stops Often Wrong, Chicago Tribune (Jan. 6, 2011),

http://articles.chicagotribune.com/2011-01-06/news/ct-met-canine-officers-20110105_1_

drug-sniffing-dogs-alex-rothacker-drug-dog. Another panel on the Seventh Circuit Court

of Appeals expressed concern with the accuracy of drug-detection dogs in general where

records revealed that the drug-sniffing dog in the case alerted to the presence of drugs 93

percent of the time while drugs were only found 59.5 percent of the time. United States v.

Bentley, 795 F.3d 630, 635-36 (7th Cir. 2015), cert. denied, 136 S. Ct. 1233 (2016).

Because drug-sniffing dogs’ false positives may lead to the issuance of search warrants

with the result that lawful and intimate details of the home are revealed when those search

warrants are executed, a dog-sniff search is hardly sui generis. See Caballes, 543 U.S. at

411-12, 125 S. Ct. at 839-40 (Souter, J., dissenting) (describing the “legal fiction” of the

“infallible dog”); see also George M. Dery III, Who Let the Dogs Out? The Supreme Court

Did in Illinois v. Caballes by Placing Absolute Faith in Canine Sniffs, 58 Rutgers L. Rev.

377, 404 (2006) (explaining how poor accuracy of drug-sniffing dogs can develop during


                                            D-4
training or through handler errors). For this reason, a dog sniff of a residence threatens

privacy interests to a much higher degree than a dog sniff of a motor vehicle, where

expectations of privacy are considerably lower.

       It should be noted as well that the existence of two separate standards for a dog sniff,

reasonable suspicion for apartments under the Minnesota Constitution versus probable

cause and a warrant for single-family homes under the Fourth Amendment, apportion

privacy rights to citizens inequitably based on their race, ethnicity, and income. See

Jardines, 133 S. Ct. at 1413, 1416-18 (affirming the Florida Supreme Court, which held

that the use of the drug-sniffing dog to investigate Jardine’s home was a Fourth

Amendment search unsupported by probable cause); Davis, 732 N.W.2d at 176, 182

(concluding that the Minnesota Constitution requires police to have a reasonable suspicion

to conduct a dog sniff in the common hallway outside an apartment door). The court in

Whitaker observed that, according to the Census’s American Housing Survey for 2013,

67.8 percent of households composed solely of whites live in one-unit, detached houses,

while for households solely composed of blacks, that number is 47.2 percent, and for

Hispanic households, that number is 52.1 percent. Whitaker, 820 F.3d at 854. “The

percentage of households that live in single-unit, detached houses consistently rises with

income.” Id. (explaining that 40.9 percent of households that earned less than $10,000 live

in single-unit, detached houses, while 84 percent of households earning more than

$120,000 did so). Using the same data in the Twin Cities metropolitan area, 67.6 percent

of households composed solely of whites live in one-unit, detached houses, while 29.9

percent of black households and 42.2 percent of Hispanic households live in such houses.


                                             D-5
U.S. Census Bureau, American Housing Survey, Table Creator, http://sasweb.ssd.

census.gov/ahs/ahstablecreator.html (last visited Dec. 15, 2016). As for income, 34.9

percent of those in the Twin Cities metropolitan area earning less than $30,000 a year live

in single-unit, detached houses, while 84.2 percent of those earning $80,000 or more a year

live in such houses. Id.

       Citizens living in apartments under the jurisdiction of the Seventh Circuit enjoy

greater protections under the Fourth Amendment than Minnesota citizens do under their

state constitution. The Minnesota Constitution should offer greater protection to residents

of the state, never less than the protection provided by the Fourth Amendment to the U.S.

Constitution.

       To avoid the inevitable and inequitable result that comes from applying a watered-

down constitutional standard for searching multi-unit housing, leaving minorities and

persons who earn lower incomes to bear the brunt of warrantless dog-sniff searches of their

residences, I would reverse and hold that the Fourth Amendment to the U.S. Constitution

provides that a dog sniff of a person’s apartment door is an invasion of that person’s

reasonable privacy expectations, requiring a warrant.




                                           D-6
