                           This opinion will be unpublished and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
                                      A15-1615

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Kurt Matthew Baker,
                                        Appellant.

                                  Filed October 11, 2016
                                         Affirmed
                                      Bratvold, Judge

                               Dakota County District Court
                               File No. 19HA-CR-15-1013

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

James C. Backstrom, Dakota County Attorney, Amy A. Schaffer, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Jane E. Maschka, Eva B. Stensvad, Faegre Baker Daniels LLP, Special Assistant Public
Defenders, Minneapolis, Minnesota (for appellant)


         Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and Bratvold,

Judge.
                          UNPUBLISHED OPINION

BRATVOLD, Judge

       Appellant Kurt Matthew Baker appeals from his conviction of second-degree

possession of a controlled substance, arguing that the district court erred in denying his

pretrial motion to suppress evidence of an illegal search. Because Baker’s issues are either

based on a misreading of the district court’s findings of fact or forfeited due to failure to

raise the issue at the district court, we affirm.

                                            FACTS

       On March 31, 2015, at approximately 4:30 p.m., an off-duty deputy with the Dakota

County Sheriff’s Office was driving home after work in his personal vehicle; he was not in

uniform. The deputy saw a red pickup truck in a parking lot “driving at a high rate of

speed”; a gray sedan was following the pickup. The deputy assumed the drivers were “high

school kids,” continued along, and moved into the left turn lane. The deputy then heard a

car honk, and saw the pickup and sedan make illegal left turns in front of his vehicle. He

decided to follow. Shortly thereafter, he saw the pickup, driven by appellant Kurt Baker,

enter a hotel parking lot; the pickup “jumped a curb,” and parked.

       The deputy stopped his vehicle, and saw Baker get out of his truck and run toward

the sedan. The deputy, while still in his vehicle, told Baker to return to his truck, which

Baker did. The deputy radioed police about a “possible altercation,” and several officers

responded within minutes.

       After talking to the occupants of the sedan, the deputy went over to talk with Baker,

who was sitting in his truck. The deputy testified that he was familiar with Baker and knew
that he sold drugs in the past. The deputy also testified that, while he was speaking to

Baker at the driver’s open window, he noticed a closed pocket knife in the cup holder. He

clarified on cross-examination that he “wasn’t worried about the knife.”

       The deputy testified that Baker said “he had a note he found on his truck, that the

people that were in the [gray] car left the note on his truck,” that he “wanted to get away

from them,” and that “they were chasing him.” When Baker reached over to grab the note,

the deputy testified that he “stuck [his] nose in there [and] got an odor of marijuana.” On

cross examination, the deputy agreed that he “kind of stuck [his] head in” when he was

standing outside the truck. The district court found that the deputy “stood next to the open

window, leaned in, and smelled the odor of fresh marijuana.”

       The deputy arrested Baker for misdemeanor reckless driving, and then searched his

truck, eventually finding a baggie of 1.95 grams of marijuana inside a cloth bag, under a

plastic liner, inside a closed center console. The deputy also found a second baggie, a

digital scale, a glass bubble pipe, and a third baggie containing smaller baggies. Police

tested the substance in the second baggie, which was determined to be 9.548 grams of

methamphetamine.

       Baker was charged with second-degree controlled-substance crime. See Minn. Stat.

§ 152.022, subd. 2(a)(l) (2014) (possession of methamphetamine more than six grams).

Because Baker had prior controlled-substance convictions, he was subject to a mandatory

three-year sentence. Minn. Stat. § 152.022, subd. 3(a) (2014). Baker was never charged

with reckless driving.
       Baker filed a motion to suppress evidence and to dismiss the charges, arguing that

the drugs were obtained as a result of an illegal stop, seizure, and search. At a contested

omnibus hearing, Baker’s counsel identified the issues challenged as “the basis for the

search and basis of jurisdiction” because the deputy was not on duty. The state presented

the testimony of two witnesses: the deputy who performed the search and an evidence

technician for the Dakota County Drug Task Force. The parties stipulated to the admission

of the squad car video of Baker’s arrest, but neither party offered any testimony explaining

the video.

       In his written submission after the hearing, Baker argued that the court must

suppress the evidence because the “claimed smell of fresh marijuana is not credible and

was a pretext for a search without a warrant.” Baker stated that it “strains credulity” that

the officer could smell “less than two grams of marijuana” inside a “closed plastic baggie

inside a zippered canvas bag under a hard plastic liner inside a closed hard plastic center

console.” Baker’s written submission did not mention jurisdiction, the stop, that the deputy

leaned into the vehicle, or the deputy’s off-duty status. The state’s written submission

pointed out that the defense had dropped the jurisdictional argument and argued that

probable cause supported the search of the pickup under the automobile exception.

       The district court denied Baker’s suppression motion, concluding that (1) the stop

was legal because the deputy saw Baker commit a misdemeanor traffic offense, and (2) the

search was legal under the automobile exception to the warrant requirement because the

deputy stood outside the pickup, spoke with Baker, and “observed the odor of fresh

marijuana emanating from inside [Baker’s] truck.” The district court also denied Baker’s
motion to dismiss for lack of jurisdiction, although it was not briefed, reasoning that an

off-duty police officer may make an arrest in his own jurisdiction, which was what

happened in Baker’s case.

       Baker was found guilty following a stipulation to the prosecution’s case to obtain

appellate review of the pretrial ruling pursuant to Minnesota Rule of Criminal Procedure

26.01, subdivision 4. Baker appeals the district court’s denial of his pretrial suppression

motion. Id., see also State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).

       This appeal follows. Baker argues the search of his vehicle was unconstitutional

and that an off-duty officer is not permitted to conduct a warrantless search. Baker does

not challenge the legality of the stop, the officer’s ability to smell the marijuana, or

jurisdiction.

                                     DECISION

I.     Sniff Search

       Both the United States and Minnesota constitutions prohibit “unreasonable searches

 and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “A search occurs

 whenever governmental agents intrude upon an area where a person has a reasonable

 expectation of privacy.” In re Welfare of B.R.K., 658 N.W.2d 565, 578 (Minn. 2003)

 (quotation omitted). “Generally, a search conducted without a warrant issued upon

 probable cause is per se unreasonable.” State v. Burbach, 706 N.W.2d 484, 488 (Minn.

 2005) (quotation omitted). This rule is subject to “a few specifically established and well

 delineated exceptions.” Id. (quotation omitted). For example, the automobile exception

 permits police to search a vehicle without a warrant if “probable cause exists to believe
that a vehicle contains contraband.” State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007).

The burden is on the state to demonstrate that an exception applies. State v. Licari, 659

N.W.2d 243, 250 (Minn. 2003).

       Under the exclusionary rule, evidence seized in violation of the constitution

generally must be suppressed. State v. Jackson, 742 N.W.2d 163, 178 (Minn. 2007).

Whether the exclusionary rule prohibits the admission of evidence in a particular case is a

question of law, which we review de novo. State v. Askerooth, 681 N.W.2d 353, 359

(Minn. 2004). We review the district court’s factual findings for clear error. State v.

Gauster, 752 N.W.2d 496, 502 (Minn. 2008). When reviewing a pretrial order denying a

motion to suppress evidence, we may independently review the facts not in dispute and

determine whether as a matter of law the district court erred by not suppressing the

evidence. Id.

       The odor of marijuana emanating from a vehicle is sufficient to provide probable

cause for a search pursuant to the automobile exception to the warrant requirement. See

State v. Schultz, 271 N.W.2d 836, 837 (Minn. 1978) (noting that officer properly conducted

warrantless search of vehicle for marijuana where officer smelled marijuana emanating

from the passenger compartment before the search); State v. Wicklund, 295 Minn. 403,

405, 205 N.W.2d 509, 511 (1973) (upholding warrantless search of vehicle after officer

smelled odor of burnt marijuana and holding Fourth Amendment “does not require law-

enforcement officers . . . to close their eyes lest they see, in plain sight, evidence of criminal

conduct, . . . neither does it require them to avoid using their other senses”); superseded by

statute, Minn. Stat. § 152.15, subd. 2(5) (1976), as recognized in State v. Ortega, 770
N.W.2d 145, 149 n.2 (Minn. 2009) (clarifying Minnesota caselaw regarding “criminal

amount of marijuana” for search incident to arrest exception).

       Baker argues that the dispositive issue is whether the deputy’s “sniff search” was

itself a separate search requiring probable cause. Baker contends that the deputy’s “search

began the moment he ‘leaned in’ and ‘stuck [his] nose’ into Mr. Baker’s truck.” Baker

relies on a string of cases, published and unpublished, from federal appellate and trial

courts, as well as state appellate courts of other jurisdictions, for the proposition that

“‘leaning into [a] car’ constitutes a search.” 1 See, e.g., United States v. Montes-Ramos,

347 F. App’x 383, 389–90 (10th Cir. 2009) (“a police officer’s intentional act of intruding

a vehicle’s air space, even if by only a few inches, constitutes a search within the meaning

of the Fourth Amendment); Allen v. Thompson, 14 F. Supp. 3d 885, 894 (W.D. Ky. 2014)

(“Leaning in through a car window may constitute a search.”); United States v. Harris, No.

2:10-cr-123-PPS, 2013 WL 1703576, at *3 (N.D. Ind. Apr. 18, 2013), (“[I]f a police officer

intrudes on the interior airspace of a vehicle, that generally will be a ‘search’ for Fourth

Amendment purposes.”), aff’d, 791 F. 3d 772 (7th Cir. 2015); State v. Dickens, 633 So. 2d

329, 332 (La. Ct. App. 1993) (“[I]f an officer sticks his head into a vehicle for the purpose

of seeing and/or smelling things he could not see or smell from the exterior of the vehicle,



1
   Minnesota courts have not ruled on this question of law. Baker cites an unpublished
decision of this court. See State v. Jacox, No. A09-668, 2010 WL 2035618, at *5 (Minn.
App. May 25, 2010) (stating that a trooper’s “leaning into the car during the federal ID
sticker check was a search.”). But an unpublished decision of this court is not precedent.
Minn. Stat. § 480A.08 (2014); see also Vlahos v. R&I Const. of Bloomington, Inc., 676
N.W.2d 672, 676 n.3 (Minn. 2004) (stating that unpublished opinions are not precedential)
(citing Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993)).
his inspection goes beyond that which may be seen or smelled by a lawfully positioned

inquisitive officer and such actions constitute a search.”); cf. United States v. Collins, 321

F. 3d 691, 695 (8th Cir. 2003) (assuming without deciding that an officer’s “act of leaning

into the vehicle constituted a search”). See also 1 Wayne LaFave, Search & Seizure

§ 2.5(c) (5th ed. 2012) (stating when an “officer leans into an open window to detect the

odor, then there has been a search”).

       The state responds that this court should not consider Baker’s argument regarding

the sniff search because it was raised for the first time on appeal. Generally, this court

“will not decide issues [that] were not raised before the district court, including

constitutional questions of criminal procedure.” Roby v. State, 547 N.W.2d 354, 357

(Minn. 1996). “At the court’s discretion, it may deviate from this rule when the interests

of justice require consideration of such issues and doing so would not unfairly surprise a

party to the appeal.” Id.

       Although the state argues that Baker waived this issue, we note that the Minnesota

Supreme Court has recently clarified that forfeiture is the proper framework for addressing

issues raised for the first time on appeal. State v. Beaulieu, 859 N.W.2d 275, 278 n.3

(Minn. 2015) (noting that “waiver is the intentional relinquishment . . . of a known right”

and forfeiture is a “failure to make a timely assertion of a right” (quotation omitted)), cert.

denied, 136 S. Ct. 92 (2015). “[A] constitutional right, or a right of any other sort, may be

forfeited in criminal as well as civil cases by the failure to make timely assertion of the

right before a tribunal having jurisdiction to determine it.” Id. at 278 (quotation omitted).
“The forfeiture doctrine reflects the need to encourage all trial participants to seek a fair

and accurate trial the first time around.” Id. at 279 (quotation omitted).

       The appellate courts have a limited power to correct errors that were forfeited in the

district court “because [a] rigid and undeviating judicial [ ] application of the forfeiture rule

would be out of harmony with . . . the rules of fundamental justice.” Id. (quotation omitted).

More specifically, plain-error review is available for errors that have been forfeited in the

district court. Minn. R. Crim. P. 31.02 (providing that “[p]lain error affecting a substantial

right can be considered by the court on motion for new trial, post-trial motion, or on appeal

even if it was not brought to the trial court’s attention.” 2

       But even assuming that Baker did not forfeit this issue, or that we review for plain

error, Baker cannot prevail on the merits of his claim. Baker’s argument is predicated on

two statements made by the deputy at the omnibus hearing and on one finding of fact made

by the district court. Baker argues that the deputy testified twice that he “stuck his nose in

there” and the district court found that the deputy “stood next to the open window, leaned

in, and smelled the odor of fresh marijuana.” From this, Baker claims the record supports

his contention that the deputy leaned into Baker’s truck before he smelled the marijuana.

       Baker ignores that the district court made an additional finding of fact that is directly

relevant to the issue on appeal: the deputy detected “the odor of fresh marijuana emanating



2
   To prevail on appeal under the plain-error standard of review, the appellant must
demonstrate (1) an error, (2) that is plain, and (3) that affects the [appellant’s] substantial
rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If the appellant satisfies the
plain-error test, appellate courts may correct the error if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Beaulieu, 859 N.W.2d at 279.
from inside Defendant’s truck.” Emanation, a word derived from emission, is “something

that issues from a source.” The American Heritage College Dictionary 457 (4th ed. 2007).

An emission is a “substance discharged into the air.” Id. at 459. Thus the district court

found that the deputy smelled the marijuana from outside the truck, clarifying the earlier

finding that the deputy “leaned in.” The district court appears to have determined the

deputy’s statements mean that he leaned toward the window of the pickup, but not inside

the pickup. The district court considered the deputy’s testimony as well as the squad car

video recording and concluded that the deputy smelled marijuana emanating from the

truck. Based on these factual findings, the district court determined that the marijuana

provided probable cause for the subsequent automobile search.        The district court’s

determination that the odor emanated “from inside” the truck is consistent with our

independent review of the record and is not clearly erroneous.

       Because we conclude that the search of Baker’s truck was supported by probable

cause based on the deputy’s smell of the odor of fresh marijuana emanating from inside

the pickup, the search was constitutional under the automobile exception. We need not

reach the parties’ remaining arguments regarding the expansion of the stop and alternative

bases for the search.

II.    Search by off-duty officer.

       Alternatively, Baker argues that the evidence “should be suppressed for the

additional independent reason that [the deputy] was off-duty when he took it upon himself

to conduct a warrantless investigatory search of Mr. Baker’s truck.” Baker asks this court

to, as a matter of first impression, “hold that a search is unreasonable under the Fourth
Amendment and Minnesota Constitution when an off-duty officer uses his state-granted

authority to conduct a warrantless investigatory search, especially when that investigatory

search is conducted in the presence of on-duty officers.” In response, the state argues that

Baker waived this issue by failing to raise it at the district court.

       The district court upheld the off-duty deputy’s authority to arrest Baker because this

was the issue argued at the omnibus hearing. In doing so, the district court relied on

Minnesota law providing that an off-duty peace officer may make warrantless arrests

“when a public offense has been committed or attempted in the officer’s presence.” Minn.

Stat. § 629.34, subd. 1(c)(1) (2014). Baker argues for the first time on appeal that there is

a “clear distinction between warrantless arrests and warrantless searches.”

       We conclude that Baker forfeited this issue and decline to consider it. Baker did

not raise this issue in his suppression motion, develop it at the omnibus hearing, or brief it

in his memorandum supporting his suppression motion. Determining whether a search is

reasonable under the Fourth Amendment requires a careful balancing of “the nature and

quality of the intrusion . . . against the importance of the governmental interests at stake.”

State v. Wiegand, 645 N.W.2d 125, 134 (Minn. 2002). This record contains no evidence

or analysis by the district court regarding the government’s interest in having the off-duty

deputy perform the search rather than the on-duty officers. Because a Fourth Amendment

reasonableness analysis is fact-specific, and the issue was not raised to or considered by

the district court, we conclude that the off-duty officer issue was forfeited.

       Affirmed.
