State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0786

State of Minnesota,
Appellant,

vs.

Cabbott James Weyker,
Respondent.

Filed October 22, 2018
Affirmed
Ross, Judge

Dakota County District Court
File No. 19HA-CR-17-2569

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

James C. Backstrom, Dakota County Attorney, G. Paul Beaumaster, Assistant County
Attorney, Hastings, Minnesota (for appellant)

Matthew J. Mankey, Mankey Law Office, Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
A police officer’s drug-detection dog alerted at the threshold of Cabbott Weyker’s
apartment door, and police then obtained a warrant to search the apartment. The search
revealed two bullets and a scale that tested positive for a trace amount of
methamphetamine. After the state charged Weyker with fifth-degree controlled substance
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crime and possession of ammunition as an ineligible person, Weyker successfully moved
the district court to suppress the evidence, arguing that the dog sniff leading to the warrant
violated his constitutional rights. We affirm the district court’s decision to suppress the
evidence because police lacked reasonable suspicion to believe Weyker’s apartment
contained methamphetamine.
FACTS
Police officer Peter Meyer brought a drug-detecting dog to Cabbott Weyker’s Eagan
apartment door after he heard from a St. Paul investigator that Weyker “is a
methamphetamine dealer” who “has been seen” in possession of eight to ten pounds of
methamphetamine. The dog alerted at the threshold of Weyker’s apartment, and Officer
Meyer relied on the alert to obtain a search warrant. Police executing the warrant found
two rounds of rifle ammunition and three digital scales, one of which was powdered with
a crystalline substance that tested positive for methamphetamine. The state charged
Weyker with fifth-degree controlled substance crime and possession of ammunition by an
ineligible person.
Weyker moved to suppress the evidence. The only evidence submitted for the
district court’s decision was the search-warrant application, the warrant, and the receipt of
the items recovered.
The warra nt application included the following facts. Officer Meyer had been
contacted by a St. Paul Police Department investigator about Cabbott Weyker. Weyker
lived in a specified Eagan apartment with his mother. Officer Meyer had “learned that
Weyker is a methamphetamine dealer and has been seen in possession of between 8 to 10
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LBS of methamphetamine with[in] the past month.” The officer saw police reports
indicating that Weyker was previously arrested for violating a no-contact order, possession
of a controlled substance, and possession of a pistol as an ineligible person. The officer
stated also that Weyker was a convicted felon, but he did not indicate any particular felony.
Based on this information, Officer Meyer took his drug-detecti ng dog to Weyker’s
apartment door, where the dog alerted to a narcotic odor at the threshold.
The district court granted Weyker’s suppression motion by relying on a holding of
this court —which has since been reversed by the supreme court —that police need a
warrant to conduct a dog sniff in the hallway of an apartment building. State v. Edstrom,
901 N.W.2d 455 (Minn. App. 2017), aff’d in part and rev’d in part, 916 N.W.2d 512
(Minn. 2018). The state appeals.
D E C I S I O N
The state seeks reversal on two theories. It argues first that the district court
erroneously suppressed the evidence by relying on this court’s holding in Edstrom that a
dog sniff at an apartment door is unlawful if it is conducted with out a warrant or an
exception to the warrant requirement. It argues second that the district court erred when it
failed to apply a good-faith exception to the exclusionary rule based on the officers’
reliance on a facially valid warrant. Although the state accurately identifies the flaws in
Edstrom and that case has been reversed, the state fails to establish that the officer had
reasonable suspicion to justify the dog sniff or that any good-faith exception applies.
Weyker’s suppression motion implicates the provisions of the United States and
Minnesota Constitutions that prohibit unreasonable searches and seizures. U.S. Const.
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amend. IV; Minn. Const. art. 1, § 10. Evidence unconstitutionally seized generally must be
suppressed. State v. Jackson, 742 N.W.2d 163, 177–78 (Minn. 2007). We review a district
court’s factual findings in a pretrial suppression order for clear error, and we review its
legal conclusions de novo. State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008). Our de
novo review supports the state’s position in part and undermines it in part.
The state rightly contests the district court’s reliance on our decision in Edstrom.
The supreme court rejected our holding that a dog sniff in the hallway at an apartment door
is a search under the Fourth Amendment and requires a warrant supported by probable
cause. State v. Edstrom, 916 N.W.2d 512, 521–24 (Minn. 2018). But it also reaffirmed its
holding in State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007), that a dog sniff at an
apartment door is a search under article 1, section 10 of the Minnesota Constitution, and
that the sniff is constitutional only if it is supported by reasonable suspicion of criminal
activity. Edstrom, 916 N.W.2d at 523–24; see also Davis, 732 N.W.2d at 177, 180–82. We
will therefore affirm the holding that the dog sniff was unconstitutional unless it was
supported by reasonable suspicion of criminal activity.
The stipulated facts in the record demonstrate that the dog sniff did not arise from
reasonable suspicion of criminal activity. We review de novo whether stipulated facts
establish reasonable suspicion. State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011).
Reasonable suspicion cannot exist without specific and articulable facts that reasonably
justify the sniff. Davis, 732 N.W.2d at 182. The warrant application indicates only that
police obtained information that connected Weyker to drug possession and activity. It says
nothing of the source of this information. It hides the source behi nd the passive voice,
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declaring unrevealingly that Weyker “has been seen” in possession of eight to ten pounds
of methamphetamine. This foggy declaration gives no off icer reason to suppose that
St. Paul police are the original source since, presumably, the St. Paul police investigator
would have arrested Weyker on the spot if the investigator had seen Weyker with the
methamphetamine. A reasonable officer would therefore infer that the information
originated from someone else’s report to the investigator.
We are not suggesting that the information had to originate with police to be
reasonably relied upon. But reasonable suspicion may stand on an informant’s tip only if
the tip has sufficient indicia of reliability. Matter of Welfare of G.M., 560 N.W.2d 687, 691
(Minn. 1997). And again, the record contains no such indicia, which must, at a minimum,
include “information suggesting the informant is credible and obtained the information in
a reliable way.” Id. An anonymous tip is constitutionall y unreliable unless it contains at
least some specific and articulable facts, rather than conclusory assertions, to justify a
constitutionally significant intrusion. Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552,
556 (Minn. 1985). Construing the warrant a pplication in the best light possible on this
record, a tipster told the St. Paul investigator, who in turn told Officer Meyer, that “Weyker
is a methamphetamine dealer.” So construed, the tip was conclusory and not sufficiently
reliable to create reasonable suspicion of criminal activity inside Weyker’s apartment.
The remaining information in the warrant application also falls short of creating
reasonable suspicion. This other information describes Weyker’s criminal history. Federal
appellate courts discussing the issue have consistently agreed that a suspect’s criminal
history alone cannot establish reasonable suspicion. See United States v. Mathurin, 561
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F.3d 170, 177 (3d Cir. 2009); Burrell v. McIlroy, 464 F.3d 853, 858 n.3 (9th Cir. 2006);
United States v. Jerez , 108 F.3d 684, 693 (7th Cir. 1997); United States v. Sandoval , 29
F.3d 537, 542 (10th Cir. 1994). Because the only apparently reliable information
considered by Officer Meyer was Weyker’s criminal history, the officer lacked reasonable
suspicion to conduct the dog sniff. The dog sniff therefore violated Weyker’s rights under
the Minnesota Constitution.
Our conclusion that the dog sniff violated Weyker’s constitutional rights informs
our consideration as to whether the warrant was properly issued. It was not. A warrant must
rest on probable cause. U.S. Const. amend. IV. We pay great deference to the district
court’s decision to issue a warrant, reversing only if the issuing judge did not have a
substantial basis to conclude that probable cause existed. State v. Rochefort, 631 N.W.2d
802, 804 (Minn. 2001). Probable cause requires particularized suspicion that criminal
activity is afoot based on facts observed firsthand or from reliable sources. See Illinois v.
Gates, 462 U.S. 213, 230–35, 103 S. Ct. 2317, 2328–30 (1983). Because a constitutional
violation led to the dog’s alert, the alert cannot supply the probable cause to justify the
warrant. See State v. Carter, 697 N.W.2d 199, 206, 212 (Minn. 2005). The facts described
in the warrant application apart from the dog sniff —the same facts we have already held
to be insufficient to establish even reasonable suspicion —cannot establish probable cause
for the same reasons. The warrant should not have been issued, and the evidence discovered
under the invalid warrant presumably must be suppressed.
The state argues against that presumption, contending that, even if the apartment
search was unconstitutional because of the infirm warrant, the consequent evidence should
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nevertheless be admitted under the good-faith exception to the exclusionary rule as
established in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984). Leon establishes
a good-faith exception to the exclusionary rule, allowing a trial court to admit unlawfully
obtained evidence if t he officers who obtained it did so executing a warrant that they
reasonably believed to be valid. 468 U.S. at 922–23, 104 S. Ct. at 3420–21. But Minnesota
has never adopted the Leon exception. The Minnesota Supreme Court has adopted only the
federally announced exception for officers who act in objectively reasonable reliance on
binding appellate precedent, and it has instructed Minnesota courts not to construe that
exception to encompass any others. See State v. Lindquist, 869 N.W.2d 863, 876–77 (Minn.
2015) (noting the “narrowness” of the binding-appellate-precedent exception and declining
to decide whether Leon should apply in Minnesota courts). We will not reverse based on
the alleged Leon exception. (We say alleged exception because a Leon exception applies
only to evidence collected by an officer who acted in objectively reasonable reliance on a
facially valid warrant, 468 U.S. at 922, 104 S. Ct. at 3420, and requires an assessment of
the reasonableness of the conduct of the officer “who originally obtained [the warrant] or
who provided information material to the probable-cause determination,” id. at 923 n.24,
104 S. Ct. at 3420 n.24. And we have established that the officer did not act on reasonable
suspicion when he conducted the dog sniff based on conclusory information.)
Because the officer conducted the dog sniff without reasonable suspicion and
obtained a warrant without probable cause, and because we will not apply the Leon good-
faith exception, we affirm the district court’s decision to suppress the evidence.
Affirmed.