Warrantless Dog Sniff From Common Hallway Of Apartment Door Violated Both Fourth Amendment And State Constitution

State v. Edstrom, Minn.Ct.App., 9/5/2017.  Police got a tip that Mr. Edstrom was selling methamphetamine our of an apartment in Brooklyn Park.  An investigator did some due diligence on the tip - he apparently did not establish whether the informant had provided reliable information in the past - and then invited another officer to bring over his narcotics sniffing dog to the common hallway of the third floor of the apartment building that the informant had specified.  The dog came over and commenced sniffing the apartment doors. 

This apartment building is secured but management graciously provides a key to the local constabulary so that they can get into the building.  The dog got a hit on one and only one of the third floor apartment doors. The officers then sought and obtained a search warrant for this apartment and found inside a bunch of methamphetamine, multiple firearms, etc. The state charged Mr. Edstrom, who was inside the apartment at the time of the execution of the search warrant with a host of drug and firearms charges.  He moved to suppress all that evidence, saying two things:  first, that the search warrant was the product of an unconstitutional dog sniff of the outside of the apartment door; and second, that the door to the apartment was "curtilage" for which he had a reasonable expectation of privacy.  The trial court denied the motion, concluding that the officer had a legitimate reason to be in the common hallway on the third floor and that the area immediately outside an apartment door in a common hallway is not "curtilage".

Mr. Edstrom did not complain about the use of management's key to get into the apartment building.  Rather, his complaint was about the dog sniffing outside his apartment door.  He pointed out that SCOTUS has said that a home's front porch fit the definition of a "curtilage" and that this is no different. Florida v. Jardines, 569 U.S. 1 (2013). The court of appeals reminded Mr. Edstrom that it had concluded in State v. Luhm, 880 N.W.2d 606 (Minn.Ct.App., 2016), that the area immediately outside a resident's door in a secured, multi-unit condominium was not "curtilage."  That being the case, the court rejected Mr. Edstrom's property rights argument and turned to his expectation of privacy argument.

Jardines did not address the privacy argument, but Justice Kagan did in her concurrence, concluding that the warrantless use of a narcotics dog did violate privacy rights.  The court keyed off this concurrence to conclude that the warrantless "intrusion" as it were by the dog sniff violated Mr. Edstrom's legitimate expectation of privacy.  The court also relied upon a Seventh Circuit case that came to the same conclusion, United States v. Whitaker, 820 F.3d 849 (7th Cir. 2016).  The court also determined that the state's comparable Fourth Amendment constitutional provision was also violated.

Use of Multi-County Grand Jury Procedure Survives State Constitutional Challenge

State v. Fitch, Minn.S.Ct., 8/24/2016.  Mr. Fitch shot and killed a police officer in Dakota County, then shortly thereafter got into a shoot out with officers in Ramsey County, injuring three of those officers before being shot himself.  The state convened a multi-county grand jury under the provisions of Minn.Stat. 628.41, subd. 2.  That grand jury then returned an indictment which charged Mr. Fitch with the homicide in Dakota County, and with multiple offenses in Ramsey County:  three counts of attempted murder in Ramsey County and possession of a firearm by an ineligible person.  

The statute authorized either a Dakota or Ramsey judge to convene this multi-county grand jury.  Whether by coin flip or otherwise, a Dakota judge convened one of these multi-county grand juries and designated the Dakota County Attorney's Office to attend to the care and feeding of this grand jury.   The order that impaneled the grand jury also designated Dakota County as the venue for any proceedings in the event of an indictment.  This venue designation put Mr. Fitch's prosecution on a collision course with a provision of the state constitution, Article 1, Section 6, which says that Mr. Fitch "enjoys" the right to a "public trial by an impartial jury of the county or district wherein the crime shall have been committed..."

Mr. Fitch invited this collision by attacking the indictment in two ways.  He moved to dismiss the indictment, saying that regardless of what the statute said the district court was constitutionally required to sever the Ramsey County offenses from the Dakota homicide offense because of the jury locale requirement of the aforementioned Article 1, Section 6 of the state constitution . This was an apparent if not explicit reference to the offenses that happened in Ramsey County.  Mr. Fitch also moved to sever the Dakota homicide from the Ramsey County offenses under Rule 17.03, subd 3; he relied upon two provisions of that rule:  that the Ramsey County offenses were not related to the Dakota homicide, or even if related joining the offenses for trial was too prejudicial.  

At the same time, Mr. Fitch moved to change venue because, he said, all the pretrial publicity prevented him from getting a fair trial. The trial judge took up the venue change motion first and granted it, packing everyone off to Stearns County for trial.  The trial court then took up Mr. Fitch's constitutional challenges and denied them. Then the trial court then denied the motion to sever the Ramsey County charges.  A Stearns County jury convicted Mr. Fitch of all of the charges.

Mr. Fitch appealed the rulings on his constitutional challenge and on his Rule 17.03 severance request.  The court first took up the constitutional challenge.

Justice G. Barry Anderson acknowledges that Mr. Fitch had a right to be tried by a jury from a particular county or district; the constitutional provision is about the jury pool and not about the location of trial.  With that understanding it's easy to reject any claim that Mr. Fitch had a right to either a judge or prosecuting authority from a particular county or district.  Rather, Mr. Fitch's rights under Article 1, Section 6 cannot be violated until a judge impanels a jury from a county other than the one in which the offense occurred to adjudicate the case against him.  

Addressing the right to be tried by a jury from a particular county or district, Justice Anderson says that past opinions establish that even this right is subject to at least two exceptions:  this right can be overcome where it would be difficult to identify the county or district in which the offense occurred, and where an impartial jury cannot be drawn from the county or district in which the alleged crime occurred.  The court does say that in most cases in which a multi-county grand jury returns an indictment, the district court should designate venue based on where the alleged offense occurred.  So, although the statute gives the trial judge discretion in designating the venue of charges returned by a multi-county grand jury the state constitution does impose restraints on that discretion.

So, the court is creeping perilously closer and closer to having to answer the constitutional question:  did keeping the Ramsey County charges in Dakota County violate Mr. Fitch's right to be tried by a jury of the county or district in which the crimes occurred?  The state said no, for two reasons:  because it avoids serial prosecutions, and because it would be just too traumatic and, frankly, inconvenient, for all of its witnesses to have to testify at two different trials.  Justice Anderson found these justifications for trampling on Mr. Fitch's state constitutional rights just a bit too easy and more problematic, amorphous.  The court said that under the state's rule there would be "no limiting principle for when witness convenience outweighs a defendant's rights under Article 1, Section 6 to trial by a jury of the county or district in which the crime was committed."  

By rejecting the state's only reasons to try both sets of charges in Dakota County Justice Anderson is left with no justification to deny Mr. Fitch his state constitutional right to a trial by a jury of the county or district in which the crime was committed.  Now finally face to face with the state constitutional question the court does what it is wont to do and punts it.

To do that things get a little fuzzy.  This is because, remember, at the same time that Mr. Fitch moved to dismiss the indictment on state constitutional grounds he also moved to change venue because of publicity.  This was just the out that the court was looking for.  If Mr. Fitch could not get a fair trial in "the greater Twin Cities metropolitan area" - which is what he said - then what did it matter whether he was entitled to trial in Ramsey County before a Ramsey County jury on the Ramsey County charges?  

Justice Anderson takes a breath at this point and rather sheepishly concedes in a lengthy footnote that Mr. Fitch had been asking the Dakota County court only that the homicide venue, which was initially and properly located in Dakota County, be moved out of Dakota County; while at the same time he was asking that the Ramsey charges be sent packing back to St. Paul, not as a venue change because of pretrial publicity from a properly venued action but as a recognition that under the state constitution Dakota County had no business trying the Ramsey charges in the first place.  The court also accepted Mr. Fitch's assertions to them that he had not intended to waive his right to have the Ramsey County charges tried by a Ramsey County jury.

Despite all this, Justice Anderson fudges these concessions by then noting that by requesting a change of venue Mr. Fitch was admitting that he could not receive an impartial jury trial in either county.  An "impartial" jury is one of the safeguards that Article 1, Second 6 protects.  This lets the court off the hook because it could now pronounce that because of all that publicity about which Mr. Fitch so bitterly complained he simply "did not have a right to a trial by a Ramsey County jury on the Ramsey County charges..." because that trial would not be an impartial one. As a result the court offers no guidance on how to address these thorny issues the next time up. Whew, that was close.

The court then addresses the severance motion under traditional severance jurisprudence.  The resolution of that question turns on the existence of prejudice, which in this case Mr. Fitch could not show.  Joinder is not prejudicial, the court said, if "evidence of each offense would have been admissible Spreigl evidence in the trial of the other."  State v. Conaway, 319 N.W.2d 35 (Minn. 1982). It was easy enough for the court to say that that was the case for Mr. Fitch, if for no other reason than the two sets of charges occurred roughly five miles and five hours apart.  Finding no prejudice to Mr. Fitch by denying the severance request the court does not have to rule whether the refusal to sever was error.

No Seizure Occurs By Officer's Illumination of Already Stopped Vehicle by Squad Spotlight

Illi v. Commissioner of Public Safety, Minn.Ct.App., 12/21/2015. At around 1:30 in the morning an officer saw a red Jeep drive into the parking lot of a stip mall, then stop along a curb in that lot behind a delivery truck.  The officer pulled in behind the Jeep and to its left, stopping several feet away.  The officer illuminated the area with his spotlight and then walked over to the Jeep.  The officer neither activated his emergency lights nor used the squad's loudspeaker.  

Ms. Illi was the sole occupant in the Jeep.  When the officer got to the driver's side of the Jeep he noticed signs of her intoxication. One thing led to another and the officer arrested Ms. Illi for suspected drunk driving.  At the police station Ms. Illi refused to provide an adequate breath sample to determine her intoxication level.  The Commissioner revoked her license; she challenged that revocation saying that the officer had illegally seized her under the state constitution by blocking her in and by shining the squad's spotlight on her vehicle.

The district court had found that the officer had not parked his squad car so as to have prevented the Jeep from leaving.  The court of appeals accepts that finding and thus rejects Ms. Illi's first assertion that the officer seized her by the positioning of his squad car.

The court also rejects Ms. Illi's other assertion that the officer seized her by illuminating the Jeep with the squad's spotlight. There's a case from 1989, Crawford v. Commissioner of Pubic Safety, 441 N.W.2d 837 (Minn.Ct.App. 1989), where the officer briefly illuminated an already stopped vehicle.  The court had held that this did not constitute a seizure.  The court here concludes that the permanency of the spotlight's illumination is a distinction without difference:

We have no cause to suppose that a reasonable person would feel significantly more or less free to drive away depending simply on whether or not the officer had turned the spotlight off before approaching. These salient circumstances did not constitute a seizure in Crawford, and so they also do not constitute a seizure here. 

Judge Residing Out of District is “de facto” Judge, Authorized to Preside Over Trial.

State v. Irby, Minn.Ct.App., 9/4/2012.  A jury convicted Mr. Irby of second degree assault, first degree burglary and prohibited possession of a firearm.  The trial court permitted the state to impeach Mr. Irby with two prior felony convictions.  During the jury charge, the trial court locked the courtroom doors, first giving those already in attendance the chance to scurry out.  Last, it turned out that during the trial the judge was not actually living in the judicial district, something for which the judicial standards board suspended her.

The state constitution requires that a judge of a district be a resident of that district at the time of selection and during her continuance in office.  The constitution also says that the office “shall become vacant” the minute the judge ceases to be an inhabitant of the district.  Seems straight forward enough, but the court of appeals cuts the judge some slack by concluding that she was a de facto judge.  That is, she was functioning as a judge even though her authority to do so was “procedurally defective.  This seems a likely candidate for review by the supreme court.

As to the impeachment issue, the court of appeals concludes that the trial court did not abuse her discretion is ruling that the impeachment could occur. 

As to locking the court room doors during the jury charge, the supreme court recently addressed this practice and found it okay.  State v. Brown, 815 N.W.2d 609 (Minn. 2012).  See here.