State of Minnesota v. Marquin Lamont Craig

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A12-2217

State of Minnesota,
Respondent,

vs.

Marquin Lamont Craig,
Appellant.

Filed July 21, 2014
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-12-2368

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

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget K. Sabo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Willis,

Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

LARKIN, Judge

Appellant was convicted of first-degree possession of a controlled substance and

possession of a firearm by an ineligible person based on evidence found during a search

of his apartment. He argues that the evidence should have been suppressed because the

search-warrant application was based, in part, on an unconstitutional dog sniff that was

conducted outside of his apartment door and that without the dog-sniff evidence, the

warrant was not supported by probable cause. Because we conclude that the dog sniff did

not violate appellant’s rights under the United States or Minnesota Constitutions, we

affirm.

FACTS

In March 2012, police officers searched appellant Marquin Lamont Craig’s

apartment pursuant to a warrant and found a .357 Magnum revolver, a .45-caliber

handgun, and more than 25 grams of cocaine. Respondent State of Minnesota charged

Craig with first-degree possession of a controlled substance and possession of a firearm

by an ineligible person.

Craig moved the district court to suppress the evidence obtained during the search.

Craig argued that the warrant was based, in part, on information gathered during an

unconstitutional dog sniff outside of his apartment door. Craig further argued that

without the unlawfully obtained dog-sniff evidence, the search warrant was not supported

by probable cause. After holding a hearing, at which the state presented testimony from

the search-warrant affiant, Deputy Erik Fleck, the district court denied Craig’s motion to

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suppress. Craig preserved the right to appeal his challenge to the search of his apartment

by entering a “Lothenbach plea.”1 The district court found Craig guilty of both offenses,

and sentenced him to serve 135 months in prison for the drug offense and a concurrent

60-month term for the firearm offense.

Craig appealed his conviction to this court. Craig also petitioned the district court

for postconviction relief, arguing that “[t]he warrantless dog sniff conducted outside [his]

apartment unit was unlawful under [Florida v. Jardines, 133 S. Ct. 1409 (2013)], which

the United States Supreme Court issued after entry of [his] convictions while his case was

pending on appeal.” This court stayed Craig’s appeal pending completion of

postconviction proceedings. The district court denied Craig’s petition for postconviction

relief, and this court reinstated his appeal.

DECISION

“When a defendant initially files a direct appeal and then moves for a stay to

pursue postconviction relief, we review the postconviction court’s decisions using the

same standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836

(Minn. 2012); State v. Petersen, 799 N.W.2d 653, 656 (Minn. App. 2011), review denied

(Minn. Sept. 28, 2011) (same). “When reviewing a district court’s pretrial order on a

motion to suppress evidence, ‘we review the district court’s factual findings under a

1
A “Lothenbach proceeding” is a proceeding in which a defendant submits to a court
trial on stipulated facts without waiving the right to appeal pretrial issues. See State v.
Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980) (approving this procedure). “Minn.
R. Crim. P. 26.01, subd. 4, effective April 1, 2007, implements and supersedes the
procedure authorized by [Lothenbach].” State v. Antrim, 764 N.W.2d 67, 69 (Minn. App.
2009).
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clearly erroneous standard and the district court’s legal determinations de novo.’” State

v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quoting State v. Jordan, 742 N.W.2d

149, 152 (Minn. 2007)).

Craig requests reversal based on three arguments. First, he argues that the

warrantless dog sniff violated his Fourth Amendment right to be free from unreasonable

searches under Jardines, because the area immediately surrounding his apartment door is

the curtilage of his home and the police must have a warrant to conduct a dog sniff in

curtilage. Second, Craig argues that even if the entryway to his apartment is not

curtilage, the Minnesota Constitution requires law-enforcement officers to have a

reasonable, articulable suspicion of illegal activity before conducting a dog sniff and that

the dog sniff here was unlawful because the officer did not have an objective basis to

believe Craig had drugs in his residence. Third, without the evidence obtained through

the unconstitutional dog sniff, the search warrant was not supported by probable cause.

We address each argument in turn.

I.

The Fourth Amendment to the United States Constitution provides, “The right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. This

guarantee establishes the right to privacy “as one of the unique values of our

civilization,” and “with few exceptions, stays the hands of the police unless they have a

search warrant.” McDonald v. United States, 335 U.S. 451, 453, 69 S. Ct. 191 (1948).
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 Although the Fourth Amendment protects various places and things, “when it

comes to the Fourth Amendment, the home is first among equals.” Jardines, 133 S. Ct.

at 1414. And the area “immediately surrounding and associated with the home,” which is

referred to as curtilage, is regarded as “part of the home itself for Fourth Amendment

purposes.” Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742 (1984).

At common law, the curtilage is the area to which extends the
intimate activity associated with the sanctity of a man’s home
and the privacies of life, and therefore has been considered
part of home itself for Fourth Amendment purposes. Thus,
courts have extended Fourth Amendment protection to the
curtilage; and they have defined the curtilage, as did the
common law, by reference to the factors that determine
whether an individual reasonably may expect that an area
immediately adjacent to the home will remain private.

Id. (emphasis added) (quotation and citation omitted).

Craig argues that the “front door to [his] apartment and the immediate surrounding

area are his home’s curtilage” and that “a dog sniff conducted in the curtilage of a

person’s home is a Fourth Amendment search . . . requir[ing] a warrant.” Craig further

argues that because the police lacked a warrant, the dog sniff outside of his apartment

door was unconstitutional. Craig relies on Jardines, in which the United States Supreme

Court recently considered “whether using a drug-sniffing dog on a homeowner’s porch to

investigate the contents of the home is a ‘search’ within the meaning of the Fourth

Amendment.” 133 S. Ct. at 1413. In holding that the dog sniff was a search governed by

the Fourth Amendment, the Supreme Court reasoned, in part, that the front porch was

curtilage and therefore a constitutionally protected area. Id. at 1415.

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 Craig contends that “[i]f the front door and surrounding area of a single family

home is curtilage into which an officer must not bring a drug detection dog without a

warrant, the same must be true for the front door and surrounding area of an apartment.”

Craig reasons that “[t]he activity of home life extends to the front door and its immediate

area because it is here that residents come and go, welcome and say farewell to guests,

receive packages, hang seasonal decorations, [and] leave shoes and other personal items.”

Under Craig’s theory, the curtilage of an apartment extends to the boundaries of any door

mat the resident places outside of the apartment door.

Craig also contends that “[u]nder Jardines, even if [he] had no reasonable

expectation of privacy in his front door or threshold, the area was still the curtilage of his

home” and that “the public nature of an apartment’s common hallway should be

irrelevant based on Jardines’ property-based reasoning.” Craig argues that “[t]he

distinction the Jardines court made between Fourth Amendment protection borne of

basic property rights and Fourth Amendment protection grounded in a reasonable

expectation of privacy is critical to understanding and correctly applying the law.” As

explained next, Craig’s reliance on the distinction between the two approaches is

unavailing.

Under the traditional property-based analysis, “the Fourth Amendment was

understood to embody a particular concern for government trespass upon the areas

(“persons, houses, papers, and effects”) it enumerates.” United States v. Jones, 132 S. Ct.

945, 950 (2012). “[T]he principle” behind the traditional property-based analysis is

simply “that, when the Government . . . engage[s] in physical intrusion of a

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constitutionally protected area in order to obtain information, that intrusion may

constitute a violation of the Fourth Amendment.” Id. at 951 (quotation omitted).

In Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507 (1967), the Supreme

Court expanded Fourth Amendment protection. Since Katz, the Supreme Court has often

applied the principle “that a violation occurs when government officers violate a person’s

reasonable expectation of privacy.” Jones, 132 S. Ct. at 950 (quotation omitted). But

“the Katz reasonable-expectation-of-privacy test has been added to, not substituted for,

the common-law trespassory test.” Id. at 952. Under the Katz test, the Supreme Court

has applied Fourth Amendment analysis to areas beyond those specifically enumerated in

the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 741, 99 S. Ct. 2577, 2581

(1979) (considering whether the government’s “installing and using a pen register [to

record telephone numbers dialed] . . . on telephone company property at the telephone

company’s central offices . . . infringed a ‘legitimate expectation of privacy’”

“notwithstanding the absence of a trespass”); Katz, 389 U.S. at 348-49, 88 S. Ct. at 509

(considering whether the FBI violated the Fourth Amendment when they “attached an

electronic listening and recording device to the outside of the public telephone booth”).

But the “Katz reasonable-expectations test . . . is unnecessary to consider when the

government gains evidence by physically intruding on constitutionally protected areas.”

Jardines, 133 S. Ct. at 1417.

In using a traditional property-based analysis in Jardines, the Supreme Court first

determined that “[t]he officers were gathering information in an area belonging to

Jardines and immediately surrounding his house—in the curtilage of the house, which . . .

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enjoys protection as part of the home itself.” Id. at 1414. The Supreme Court recognized

that privacy expectations underlie a curtilage determination in Jardines, stating that

curtilage is the area immediately surrounding and associated with the home, where

“privacy expectations are most heightened.” Id. at 1415 (quoting California v. Ciraolo,

476 U.S. 207, 213, 106 S. Ct. 1809 (1986)). The Supreme Court explained:

While the boundaries of the curtilage are generally clearly
marked, the conception defining the curtilage is at any rate
familiar enough that it is easily understood from our daily
experience. Here there is no doubt that the officers entered it:
The front porch is the classic exemplar of an area adjacent to
the home and to which the activity of home life extends.

Id. (quotations omitted).

Because the Supreme Court determined that the porch was curtilage and curtilage

enjoys the same Fourth Amendment protections as a home, there was no need to use the

Katz reasonable-expectation-of-privacy test. Id. at 1417. Thus, the Supreme Court stated

that it “need not decide whether the officer’s investigation of Jardines’ home violated his

expectation of privacy,” rejecting the state’s argument that Jardines did not have a

reasonable expectation of privacy under the Katz standard. Id. But contrary to Craig’s

contention, that does not mean that privacy expectations were irrelevant. The Supreme

Court’s conclusion that the front porch was curtilage necessarily included a

determination that there was a heightened expectation of privacy on the porch. See

Oliver, 466 U.S. at 180, 104 S. Ct. at 1742.

We therefore reject Craig’s contention that, under Jardines, the area outside his

apartment door is the curtilage of his home, even if he has no expectation of privacy in

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that area. Jardines establishes that a homeowner’s front porch is curtilage as a matter of

law. And when determining whether an area other than a homeowner’s front porch is

curtilage, privacy expectations remain a relevant consideration.

We now turn to the facts of this case. Here, the police did not enter a

homeowner’s front porch. The record indicates that officers entered a multi-unit

apartment building through an unlocked door, and they walked through a hallway past

“multiple apartment doors” to reach Craig’s door. Because Jardines is factually

distinguishable, it does not compel a conclusion, as a matter of law, that the area outside

of Craig’s apartment door is constitutionally protected curtilage.

Nor does Jardines suggest, by analogy, that the area outside Craig’s apartment

door is curtilage. Our caselaw holds that residents of a multi-occupancy building do not

have a reasonable expectation of privacy in common areas of the building. In State v.

Milton, the Minnesota Supreme Court stated that “a resident of a multifamily residence

has a diminished expectation of privacy in the common areas surrounding the residence”

because common areas are “‘not subject to the exclusive control of one tenant and [are]

utilized by tenants generally and the numerous visitors attracted to a multiple-occupancy

building.” 821 N.W.2d 789, 799 (Minn. 2012) (quotations omitted). Because there is a

diminished expectation of privacy in common areas of multi-occupancy buildings, such

areas are not curtilage. Id. at 799-800 (concluding that a shared stairway and platform at

a duplex was a common area and therefore are not curtilage).

This court has similarly held that “[a] dog sniff in a common hallway of an

apartment complex is not a search under the Fourth Amendment . . . because a reasonable

9
expectation of privacy in the hallway does not exist.” State v. Davis, 711 N.W.2d 841,

843 (Minn. App 2006), aff’d, 732 N.W.2d 173, 176 n.5, 179 n.10 (Minn. 2007)

(affirming on other grounds without considering whether the dog sniff was a search for

purposes of the Fourth Amendment and noting that Davis made no argument that the

police intruded upon the curtilage of his home).

Other jurisdictions have also held that residents of multi-occupancy buildings do

not have a reasonable expectation of privacy in common areas of the buildings. See

United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993) (stating that “[m]ost [federal

circuit courts] agree a tenant does not have a reasonable expectation of privacy in an

apartment building hallway or other common area”); United States v. McGrane, 746 F.2d

632, 634 (8th Cir. 1984) (holding that a person had no expectation of privacy in a

“common area . . . accessible to all tenants and the landlord” of an apartment building);

United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977) (concluding that a person did

not have a “reasonable expectation of privacy in the hallway of [an] apartment building”

where “[t]he common hallways of [the] apartment building were available for the use of

residents and their guests, the landlord and his agents, and others having legitimate

reasons to be on the premises”).

Craig nonetheless argues that this court should adopt the reasoning of the Texas

Court of Appeals in McClintock v. State, which concluded that a stairway landing in front

of an apartment door “is part of the apartment’s curtilage.” 405 S.W.3d 277, 284 (Tex.

App. 2013), review granted (Tex. Nov. 20, 2013). But the Texas Court of Appeals

acknowledged that “curtilage does not include public spaces such as the common areas or

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hallways of an apartment complex” and reasoned that “[t]he stairway was not a

‘common’ area; it led only and directly to McClintock’s door.” Id. at 283-84.

McClintock therefore is not apposite.

Having taken the position that privacy expectations are irrelevant under Jardines,

Craig does not argue that he had a reasonable expectation of privacy in the area outside of

his apartment door, and he does not dispute that his door opened to a common hallway.

Based on the precedent and persuasive authorities cited above, and because a curtilage

determination requires consideration of reasonable privacy expectations, we conclude

that Craig could not have reasonably expected the common area outside of his apartment

door to remain private and that the area therefore is not curtilage protected by the Fourth

Amendment. See Oliver, 466 U.S. at 180, 104 S. Ct. at 1742.

In sum, because the police did not intrude upon constitutionally protected curtilage

when they conducted the warrantless dog sniff in this case, Craig’s rights under the

Fourth Amendment were not violated.

II.

The Minnesota Constitution prohibits “unreasonable searches and seizures.”

Minn. Const. art. I, § 10. A narcotics-detection dog sniff in a common hallway of an

apartment building is a search under the Minnesota constitution. See State v. Davis, 732

N.W.2d 173, 181-82 (Minn. 2007) (concluding that the police needed reasonable,

articulable suspicion to walk a narcotics-detection dog down the common hallway of an

apartment building). To justify a warrantless dog sniff, a reasonable, articulable

suspicion that a suspect is engaged in illegal drug activity is required. Id. at 182. The

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reasonable-suspicion standard is “less demanding than probable cause,” but requires

more than an unarticulated “hunch.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn.

2008). “Reasonable suspicion must be based on specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant that

intrusion.” Davis, 732 N.W.2d at 182 (quotation omitted). But “[t]he requisite showing

is not high.” Id. (quotation omitted). Considering the totality of the circumstances, we

review whether a reasonable suspicion exists de novo. Id.; State v. Britton, 604 N.W.2d

84, 87 (Minn. 2000). Even if one factor alone is not “independently suspicious,” several

“innocent factors in their totality” may amount to reasonable suspicion of criminal

activity. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998) (quotation omitted).

Craig argues that “use of a drug detection dog violated [his] [state] constitutional

rights because [the police] lacked reasonable articulable suspicion that [he] possessed,

used or sold drugs in his residence.” In this case, Deputy Fleck met with a confidential

informant (CI). The CI told Deputy Fleck that a person named Marquin and known as

“Loony” was using marijuana, selling large amounts of crack cocaine and marijuana in

the Twin Cities, and had handguns in his possession. The CI provided Loony’s address,

explained the layout of Loony’s apartment building, and stated that Loony’s apartment

was the first door on the right from the front door. The CI reported that Loony’s vehicle,

a blue Chevrolet minivan, was usually parked outside the apartment. The CI told Deputy

Fleck that he had recently seen three handguns in Loony’s apartment, described as a 9mm

with a laser sight, a .357 Magnum, and a .38 caliber. The CI provided a physical

12
description of Loony and his phone number, and the CI told Deputy Fleck that Loony is a

convicted felon and gang member.

Deputy Fleck verified that the phone number provided by the CI was listed under

the name Marquin Craig; that the physical description provided by the CI matched the

description of Craig on the Department of Motor Vehicles and Driver Services’ website;

and that Craig had a criminal history including a gun-related conviction and six drug-

related convictions. Deputy Fleck learned through police records that Craig’s girlfriend’s

last name was Brown. He conducted surveillance of the address the CI provided,

observed a blue Chevrolet Astro van parked near the building, and noticed the name

“Craig Brown” on the mailbox for the apartment in question.

Deputy Fleck had more than an unarticulated hunch that Craig was involved in

illegal drug activity. The CI told Deputy Fleck that he had been to Craig’s apartment,

and that he knew Craig smoked marijuana and sold crack cocaine. The CI stated that he

had recently seen handguns in Craig’s apartment and described the guns in detail. It was

rational for Deputy Fleck to infer from these facts that the drug use that the CI reported

had been observed at Craig’s apartment and that, therefore, illegal drugs may be found

there. See State v. Baumann, 759 N.W.2d 237, 239, 241 (Minn. App. 2009), review

denied (Minn. Mar. 31, 2009) (acknowledging “the low threshold the courts have set for

reasonable suspicion” and concluding that a dog sniff in a common hallway of an

apartment building was justified by a report that a “high number of people” were

“coming in and out” of an apartment and “staying for a short amount of time”).

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 Craig argues that “Deputy Fleck had no prior knowledge of the CI and no reason

to believe he was trustworthy.” “When evaluating tips, courts are to make a practical,

common-sense decision whether, given all the circumstances . . . including the veracity

and basis of knowledge of persons supplying hearsay information, there is a fair

probability that contraband or evidence of a crime will be found in a particular place.”

Davis, 711 N.W.2d at 848 (quotation omitted). Deputy Fleck verified much of the

information the CI provided, including Craig’s physical appearance, phone number,

address, vehicle, and criminal history. See State v. Holiday, 749 N.W.2d 833, 841 (Minn.

App. 2008) (stating that “the corroboration of even minor details lent credence to the

information provided by the CI and bolstered the CI’s reliability,” and concluding that the

corroboration of the suspects “name, nickname, physical description, gang affiliation, and

vehicle information” bolstered the CI’s reliability under the more demanding probable-

cause standard).

Craig cites State v. Cook, 610 N.W.2d 664 (Minn. App. 2000), review denied

(Minn. July 25, 2000), and argues that the CI in this case “failed to establish any sort of

basis of knowledge for his blanket assertion that [he] sold narcotics in the ‘Twin Cities

Metro area.’” In Cook, this court held that the police lacked probable cause to arrest

Cook because the CRI provided only a “description of Cook’s clothing, physical

appearance, vehicle, and present location,” and “[t]hese details . . . fail[ed] to offer any

explanation for the basis of the CRI’s claim that Cook was selling drugs.” 610 N.W.2d at

668. “The CRI never claimed that he had purchased drugs from Cook or that he had seen

Cook selling drugs.” Id. This court observed that the “police did no independent

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corroboration other than to verify that the vehicle described by the CRI was parked in the

YMCA lot and that the man leaving the YMCA and getting into the driver’s side of the

vehicle matched the description of Cook given to police by the CRI.” Id. But Craig’s

argument is not persuasive because this court stated in Cook that the CRI’s tip likely

satisfied the lesser reasonable-suspicion standard that is at issue in this case. See id. at

669 (stating that the “police may have had ‘reasonable suspicion’ to legally stop and

question Cook to ascertain his identity,” and that “reasonable suspicion [is a] less

demanding standard than probable cause and can be established with information that is

different in quantity, content, or even reliability” (Citation omitted)).

In sum, because the police had a reasonable suspicion that Craig had illegal drugs

in his apartment, his rights under the Minnesota Constitution were not violated.

III.

Craig argues that “without the evidence obtained through the unlawful dog sniff,

the warrant application lacked probable cause and the evidence obtained as a result of the

search must be suppressed.” Because we have concluded that the dog sniff was lawful

under both the United States and Minnesota Constitutions, Craig’s probable-cause

challenge to the search warrant fails.

Affirmed.

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