State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1156

State of Minnesota,
Respondent,

vs.

Rian Lynn Thibeau,
Appellant.

Filed May 20, 2019
Affirmed in part, reversed in part, and remanded
Stauber, Judge*

Hennepin County District Court
File No. 27-CR-17-25233

Keith Ellison, Minnesota Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorne y, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Hooten, Judge; and Stauber, Judge.

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

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U N P U B L I S H E D O P I N I O N
STAUBER, Judge
In this direct appeal from final judgments of conviction and sentences for two counts
of first-degree controlled substance crimes, appellant argues that (1) the district court erred
in determining that only reasonable, articulable suspicion is required to conduct a dog-sniff
search in a common hallway of an apartment, and that (2) the district court erred by entering
convictions for first-degree sale and possession when the possession was a lesser-included
offense of sale , and by considering the sentence of the possession conviction “merged”
with the sentence of the sale conviction. We affirm in part, reverse in part, and remand.
FACTS
In July 2017, a detective with the Bloomington Police Department received
information about a tip from an employee of an apartment complex where appellant Rian
Lynn Thibeau lived and worked. The employee stated that he had observed appellant with
sores on her face, constantly twitching and scratching herself, and with large sums of cash.
He stated that he observed several baggies of what appeared to be methamphetamine in
appellant’s apartment and that appellant offered to give him methamphetamine for free but,
if he wanted some in the future, he would have to pay. In August, the detective confirmed
the substance of the tip. Based on this information, the detective and another officer
conducted a dog -sniff search outside of appellant’s apartment, which yielded a positive
alert to the presence of narcotics.

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Shortly after the dog -sniff search, the detective learned that, based on this court’s
decision in State v. Edstrom,1 she needed a warrant prior to conducting the search. 901
N.W.2d 455 (Minn. App. 2017). The detective obtained a w arrant and had her partner
conduct a second dog -sniff search outside of appellant’s apartment. Again, the search
alerted to the presence of narcotics. After the second dog -sniff search, the detective
obtained a search warrant to search inside appellant’s apartment.
Law enforcement executed the search warrant on October 5, 2017 , and found
appellant alone in her apartment. Officers discovered two packages containing a substance
that field-tested positive for methamphetamine. The first package weighed 454.20 grams
and the second package weighed 447.01 grams. Officers located other quantities of
suspected methamphetamine in the apartment, and the total weight of all recovered
methamphetamine was 934.66 grams. 2 Officers also found ledgers indicating var ious
amounts of money with notes of “owed” and “paid,” a digital scale, and approximately
$7,430 in currency. Officers examined appellant’s three cell phones and discovered text
messages indicating that appellant had been delivering quantities of methamph etamine

1 The supreme court later reversed this court’s decision in Edstrom, holding that a dog -
sniff search in the hallway immediately adjacent to a person’s apartment did not intrude on
that person’s reasonable expectation of privacy, and did not constitute a search under the
Fourth Amendment of the United States Constitution. State v. Edstrom, 916 N.W.2d 512,
512 (Minn. 2018), cert. denied, 139 S. Ct. 1262 (2019).
2 Appellant’s brief states that officers found a total of 968 grams of methamphetamine.
The district court’s “Stipulated Facts Findings, Conclusions of Law and Order” states that
officers discovered a total of 968.11 grams. The complaint states that officers discovered
a total of 934.66 grams of methamphetamine.

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throughout the Twin Cities and Wisconsin. Officers also found 3.27 grams of a suspected
THC product.
The state charged appellant with first -degree sale of a controlled substance in
violation of Minn. Stat. § 152.021, subd. 1(1) (2016) (count one), first-degree possession
of a controlled substance in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (count two),
and fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025,
subd. 2(1) (2016) (count three) . Appellant moved to suppress the evidence discovered
during the search, arguing that the information used to obtain the search warrant for the
second dog-sniff search was stale at the time of the application. The district court granted
the motion to suppress. The state filed a motion to reconsider, arguing that the district
court applied the incorrect standard to review a request for a dog-sniff search, and that the
state possessed the required reasonable, articulable suspicion to conduct the search.
The district court held a hearing after which it determined that, because the supreme
court granted review of Edstrom, this essentially removed Edstrom from the law of the
State of Minnesota until the supreme court rendered its decision. The district court stated
that State v. Davis , 732 N.W.2d 173 (Minn. 2007), 3 controlled the matter. The district
court held an evidentiary hearing on the issue of the search warrant. It denied appellant’s
motion to suppress, concluding that reasonable, articulable suspicion supported the dog-
sniff search. At the same hearing, the state dismissed the fifth -degree possession charge

3 Davis held that reasonable, articulable suspicion is the appropriate standard for obtaining
a search warrant for a dog -sniff search in a common hallway outside an apartment door.
732 N.W.2d at 182.

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(count three). The parties agreed to proceed under stipulated evidence pursuant to Minn.
R. Crim. P. 26.01, subd. 4, to preserve for appellate review the issue of whether the district
court employed the correct standard to evaluate the constitutionality of the dog-sniff search.
Appellant waived her right to a jury trial.
The district court found appellant guilty of counts one (sale) and two (possession) .
The warrant of commitment indicate d that the district court entered convictions for both
counts. It also indicated that appellant was sentenced to 65 months in prison for count one,
and that the sentence for count two “merged” with count one.4 This appeal follows.
D E C I S I O N
I. The district court did not err in denying appellant’s motion to suppress
evidence obtained pursuant to a dog -sniff search based on reasonable
articulable suspicion.

Appellant challenges the district court’s holding that a dog-sniff search requires
only reasonable, articulable suspicion. While appellant acknowledges the supreme court’s
holdings in Edstrom and Davis, she makes her argument for the sole purpose of preserving
her right to benefit from a possible reversal of Edstrom by the United States Supreme Court,
which, at the time appellant filed her brief, was pending for certiorari. But the Supreme
Court has since denied Edstrom’s petition for writ of certiorari. Edstrom v. Minnesota, 139
S. Ct. 1262, 1262 (2019). Therefore, the supreme court’s holding in Edstrom stands, and

4 Based on the sentencing order in the district court register of actions, it appears that, by
virtue of “merging” the sentencing conditions with count one, the district court effectively
imposed a sentence for count two.

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the district court did not err by holding that, under Davis, reasonable, articulable suspicion
supported the dog-sniff search, and a search warrant was unnecessary.
II. The district court err ed by entering convictions and sentences for both
counts.

Appellant argues, and respondent agrees, that the district court violated Minn.
Stat. § § 609.04, subd. 1(4) and 609. 035, subd. 1 (2016), by entering convictions for
violations of two subdivisions of the same statute when t he record shows that both
convictions are based on appellant’s possession of 934.66 grams , and by entering a
“merged” sentence for count two when only one sentence can be imposed for multiple
offenses arising from the same underlying conduct. Although the parties are in agreement,
it is the responsibility of this court to decide cases in accordance with law. State v.
Hannuksela, 452 N.W.2d 668, 673, n. 7 (Minn. 1990). A fter considering the applicable
law, we agree.
Under Minn. Stat. § 609.04, subd. 1, a person may be convicted of either the
crime charged or an included offense, but not both . An offense is necessarily included in
a greater offense if it is impossible to commit the greater offense without committing the
lesser offense. State v. Roden, 384 N.W.2d 456, 457 (Minn. 1986). This court reviews de
novo a determination of what constitutes a lesser -included offense of a crime charged.
State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012). Under Minn. Stat. § 609.035, subd. 1, if
a person is charged with multiple offenses arising from the same behavioral incident,
punishment may be imposed for only one of the offenses.

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Here, the warrant of commitment reflects that the district court formally
convicted appellant of one count of first -degree sale of a controlled substance and one
count of first-degree possession of a controlled substance. This is conclusive evidence of
the convictions. Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007) (noting that written
judgment of conviction provides “conclusive evidence of whether an offense has been
formally adjudicated”). Because a person must possess something before they can sell it,
it is impossible to commit a sale crime without also committing a possession crime. See
State v. Traxler, 583 N.W.2d 556, 562 (Minn. 1998) (reversing conviction for first-degree
sale and remanding for resentencing on lesser -included offense of fifth-degree possession
of methamphet amine); see also State v. Berstch , 707 N.W.2d 660, 666 (Minn. 2006)
(holding that possession of pornography can be an included offense of dissemination of
pornography). Therefore, the district court violated Minn. Stat. § 609.04, subd. 1, by
entering conv ictions for both offenses when appellant’s possession offense is a lesser -
included offense to her sale offense. Accordingly, we reverse and remand for the district
court to vacate appellant’s conviction for count two. As a result, the sentence for count
two is also vacated. We note that, while t he warrant of commitment indicates that the
sentence for count two is “merged” with count one, the law does not recognize a “merged”
sentence. State v. Walker , 913 N.W.2d 463, 466 (Minn. App. 2018). The warrant of
commitment should reflect a formal adjudication and imposition of sentence on count one
only. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984).
Affirmed in part, reversed in part, and remanded.