State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1129

State of Minnesota,
Respondent,

vs.

John Edward Juneau,
Appellant.

Filed June 27, 2022
Affirmed
Johnson, Judge

Anoka County District Court
File No. 02-CR-17-2371

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

Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, J udge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
An Anoka County jury found John Edward Juneau guilty of a third-degree
controlled substance crime based on evidence that he possessed methamphetamine in his
vehicle. We conclude that the district court did not err by denying Juneau’s motion to
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suppress the evidence of the methamphetamine. We also conclude that the prosecutor did
not engage in misconduct during closing argument. And we further conclude that the
district court did not err by denying Juneau’s motion for a downward durational departure
from the presumptive sentencing range. Therefore, we affirm.
FACTS
Juneau’s conviction arises from a police officer’s stop of his vehicle and subsequent
discovery of methamphetamine during a search of the vehicle. On April 11, 2017, at
approximately 1:30 a.m., Sergeant Blair of the Coon Rapids Police Department responded
to a report that an unknown person was running through the backyards of local residences.
After concluding his investigation into that report, Sergeant Blair saw an SUV drive slowly
past a particular home. Sergeant Blair became suspicious because he recently had spent a
considerable amount of time investigating that home for narcotics-related activity.
Sergeant Blair checked the registration of the SUV. His squad-car computer indicated that
the vehicle’s owner was not a resident of Coon Rapids and also indicated (incorrectly) that
the vehicle’s registration had expired.
Sergeant Blair followed the SUV. As he did so, he noticed that the driver was
speeding up, as if to increase the space between the SUV and the squad car. Sergeant Blair
eventually caught up to the SUV and stopped it for an equipment violation. The driver of
the SUV came to a rolling stop. Sergeant Blair shined a spotlight through the SUV’s rear
window and saw the driver make furtive movements toward the center console. Sergeant
Blair approached the vehicle and ordered the driver to exit the vehicle. After his third or
fourth command, the driver complied. Sergeant Blair immediately recognized Juneau
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based on past interactions. Juneau told Sergeant Blair that he had been in the area visiting
a friend. Sergeant Blair did not believe Juneau and ordered a drug-detecti on dog to sniff
the SUV. The dog reacted positively to the presence of narcotics. Sergeant Blair searched
the vehicle and found two small baggies containing a substance that later was determined
to be methamphetamine.
The state charged Juneau with one count of third-degree possession of a controlled
substance, in violation of Minn. Stat. § 152.023, subd. 2(a)(1) (2016). In July 2017, Juneau
moved to suppress the evidence seized during the search of his vehicle. In November 2017,
the district court held an evidentiary hearing at which Sergeant Blair and Juneau testified.
In August 2018, the district court filed an order denying Juneau’s motion. The district
court determined that the dog sniff of Juneau’s vehicle was justified by a reasonable
suspicion of drug-related activity and that Sergeant Blair’s search of Juneau’s vehicle was
supported by probable cause.
The case was tried to a jury over two days in August 2019. The state called two
witnesses: Sergeant Blair and a forensic scientist who had tested and weighed the substance
found in Juneau’s vehicle. Juneau called one witness, J.I. , who testified that he —not
Juneau—was responsible for the methamphetamine found in Juneau’s vehicle. Juneau did
not testify.
The jury found Juneau guilty. At sentencing, Juneau moved for a downward
durational departure from the presumptive guidelines range. The district court denied
Juneau’s motion and imposed a sentence of 49 months of imprisonment. Juneau appeals.

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DECISION
I. Motion to Suppress
Juneau first argues that, for two reasons, the district court erred by denying his
motion to suppress evidence. First, Juneau contends that the dog sniff of his vehicle was
not supported by a reasonable suspicion of criminal activity. Second, he contends that,
even if there was reasonable suspicion for a dog sniff, the dog sniff is invalid because the
dog alerted to the presence of narcotics only after entering the vehicle, which he contends
is a search that was not supported by probable cause.1 This court applies a clear- error
standard of review to a district court’s findings of fact concerning an investigatory
stop. State v. Britton , 604 N.W.2d 84, 87 (Minn. 2000). If the relevant facts are
undisputed, this court applies a de novo standard of review to a district court’s ruling that
an investigatory stop is valid. State v. Yang, 774 N.W.2d 539, 551 (Minn. 2009).
A. Dog Sniff
Juneau first contends that the dog sniff of his vehicle was not supported by a
reasonable suspicion of criminal activity.
The United States Constitution and the Minnesota Constitution guarantee the right
of the people to be secure against unreasonable searches and seizures. U.S. Const. amend.
IV; Minn. Const. art. I, § 10. Under the Fourth Amendment to the United States

1In his principal brief, Juneau also argued that probable cause is lacking because the
state did not introduce evidence of the drug-sniffing dog’s reliability. See Florida v.
Harris, 568 U.S. 237, 246-48 (2013). Juneau did not make such an argument to the district
court, and the issue was not considered by the district court. In his reply brief, Juneau
admitted that additional fact-finding is necessary on that issue. At oral argument, Juneau
expressly waived the argument. Thus, we need not consider it.
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Constitution, the use of a drug-sniffing dog is not a “search ” and, thus, does not require
probable cause. Illinois v. Caballes, 543 U.S. 405, 408-10 (2005). Under the Minnesota
Constitution, a law-enforcement officer may not use a drug-sniffing dog on a motor vehicle
that is stopped for a routine equipment violation unless the officer has a reasonable,
articulable suspicion of drug-related criminal activity. State v. Wiegand, 645 N.W.2d 125,
135, 137 (Minn. 2002). The reasonable-suspicion standard is satisfied if “an officer
observes unusual conduct that leads the officer to reasonably conclude in light of his or her
experience that criminal activity may be afoot.” State v. Timberlake, 744 N.W.2d 390, 393
(Minn. 2008) (quotation omitted). The reasonable-suspicion standard is not high, but the
suspicion must be more than a “mere hunch” and must be based on “specific and articulable
facts.” State v. Taylor, 965 N.W.2d 747, 751 -52, 758 (Minn. 2021) (quotation omitted).
A court must consider the totality of the circumstances in determining whether reasonable
suspicion exists. Id. at 752.
In this case, the district court concluded that Sergeant Blair’s expansion of the
investigatory stop with a dog sniff was justified by a reasonable, articulable suspicion of
drug-related activity. The district court determined that three facts provided the requisite
reasonable suspicion: (1) Juneau had been in a high-crime area, (2) he had come to a
“rolling” stop, and (3) he had made “furtive movements” towards the center console after
stopping.
Juneau contends that the first fact on which the district court relied —that he had
been in a high-crime area—is clearly erroneous because Sergeant Blair testified that the
area in which Juneau was arrested is a “relatively quiet neighborhood.” But Sergeant Blair
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also testified that, in the months preceding Juneau’s arrest, he had spent “endless hours”
conducting narcotics-related surveillance at the home past which Juneau was driving
slowly. Sergeant Blair also testified that he had been involved in narcotics-related arrests
in the area and was aware of additional criminal incidents occurring in that area. Thus, the
district court’s finding that Juneau had been in a high-crime area is not clearly erroneous.
Juneau also contends that the district court’s three findings do not indicate drug-
related activity so as to justify a dog sniff. See Wiegand, 645 N.W.2d at 137. In evaluating
an officer’s assertion of a reasonable, articulable suspicion, courts must be “deferential to
police officer training and experience and recognize that a trained officer can properly act
on suspicion that would elude an untrained eye.” Britton, 604 N.W.2d at 88-89; Taylor,
965 N.W.2d at 752. Sergeant Blair testified that, in his experience, a rolling stop is “very
typical” in narcotics-related cases. Sergeant Blair also testified that if a car’s occupant
makes movements toward the center console, the person may be trying to hide something.
Sergeant Blair’s testimony, which is based on his training and experience, specifically
connects his observations of Juneau’s behavior to drug-related activity. In this way, this
case is similar to State v. Lugo, 887 N.W.2d 476 (Minn. 2016), in which the appellant was
seen leaving a drug house, took an unusually long time to stop, and had recently been
arrested for a drug crime. Id. at 487. Accordingly, the district court in this case did not err
by concluding that Sergeant Blair had “specific and articulable facts” of drug-related
activity that are sufficient to satisfy the reasonable-suspicion standard for a dog sniff.

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B. Search of Vehicle
Juneau also contends that, even if the use of a drug-sniffing dog was justified, the
dog sniff is invalid because the dog alerted to the presence of narcotics only after entering
the vehicle, which, Juneau asserts, must be deemed a search that is not supported by
probable cause.
Juneau did not make this argument to the district court. He is making the argument
for the first time on appeal. In his reply brief, he urges the court to consider the argument
based on an exception to the general rule that an argument is forfeited if it was not presented
to the district court. He relies primarily on Watson v. United Services Automobile
Association, 566 N.W.2d 683 (Minn. 1997), which sets forth a four-factor test for
determining whether an exception applies. Id. at 688. The state urges the court to follow
State v. Sorenson, 441 N.W.2d 455 (Minn. 1989), in which the supreme court declined to
consider an argument for suppression based on the Minnesota Constitution because th at
theory had not been presented to the district court. Id. at 457.
We believe that the applicable law is found in State ex rel. Rasmussen v. Tahash,
141 N.W.2d 3 (Minn. 1965), in which the supreme court stated:
If the defendant, having been advised before trial that
evidence obtained as the result of search and seizure will be
offered against him . . . , and having been told that he may have
a test of the admissibility of this evidence upon constitutional
grounds before the trial, fails or refuses to request such a
hearing, any objection which he may otherwise make based
upon this ground may be deemed waived.

Id. at 14; see also State v. Merrill, 274 N.W.2d 99, 109 (Minn. 1978) (refusing to consider
argument concerning search of apartment because appellant did not raise that issue at
8
omnibus hearing or trial). This rule applies with special force if the state did not have an
opportunity to present relevant evidence on the issue at the omnibus hearing. State v.
Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996). In this case, t he record of the omnibus
hearing2 does not contain evidence with respect to whether the dog actually entered
Juneau’s vehicle, how the dog might have entered, and when the dog might have entered
relative to when the dog alerted to methamphetamine. Accordingly, we will not consider
Juneau’s second argument.
Thus, the district court did not err by denying Juneau’s motion to suppress evidence.
II. Prosecutorial Misconduct
Juneau next argues that he is entitled to a new trial on the ground that the prosecutor
engaged in two types of misconduct.
The right to due process of law includes the right to a fair trial. Spann v. State, 704
N.W.2d 486, 493 (Minn. 2005); State v. Ferguson, 729 N.W.2d 604, 616 (Minn. App.
2007), rev. denied (Minn. June 19, 2007). “Prosecutors have an affirmative obligation to
ensure that a defendant receives a fair trial.” State v. Jones, 753 N.W.2d 677, 686 (Minn.
2008) (quotation omitted). Consequently, prosecutorial misconduct may result in the
denial of the right to a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006).

2Both parties cite to a video-recording of the dog sniff. But the video-recording was
not admitted into evidence at the omnibus hearing. The district court instructed the state
to submit the video-recording after the omnibus hearing, but it appears that the state did
not do so. Juneau has not argued to this court that the district court erred by not ensuring
that the video-recording was made part of the record of the omnibus hearing. Thus, we do
not consider the video -recording, which later was introduced at trial, to be part of the
evidentiary record of the omnibus hearing.
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The parties agree that Juneau did not object at trial to the prosecutorial conduct that
he challenges on appeal. Accordingly, we apply the modified plain-error test. State v.
Carridine, 812 N.W.2d 130, 146 (Minn. 2012). To prevail under the modified plain-error
test, an appellant initially must establish that t here is prosecutorial misconduct and that it
is plain. Ramey, 721 N.W.2d at 302. If the appellant establishes plain misconduct, the
burden shifts to the state to show that the plain misconduct did not affect the appellant’ s
substantial rights, i.e., “that there is no reasonable likelihood that the absence of the
misconduct in question would have had a significant effect on the verdict of the jury.” Id.
(quotation omitted). “ If these three prongs are satisfied, the court then assesses whether
the error should be addressed to ensure fairness and the integrity of the judicial
proceedings.” State v. Matthews, 779 N.W.2d 543, 551 (Minn. 2010).
A. Alleged Personal Opinion on Credibility
Juneau first contends that the prosecutor engaged in misconduct during closing
argument by making the following two statements with respect to Juneau’s defense
witness, J.I.: “[Y]ou have a story that is fanciful, told by someone who is not credible. . . .
What is not speculative is that [J.I.] was not telling you the truth.” Juneau contends that
these statements constitute impermissible commentary on the credibility of a witness.
It is inappropriate for a prosecutor to give his or her own opinion about the
credibility of a witness in closing argument. State v. Porter, 526 N.W.2d 359, 364 (Minn.
1995). “However, the state is free to argue that particular witnesses were or were not
credible.” State v. Fields, 730 N.W.2d 777, 785 (Minn. 2007). In this case, the prosecutor
did not offer his personal opinion about J.I.’s credibility. Instead, the prosecutor identified
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inconsistencies in J.I.’s testimony and, based on that evidence, urged the jury to draw an
inference that J.I. was not credible. A prosecutor is permitted “to present to the jury all
legitimate arguments on the evidence” and “to present all proper inferences to be drawn
therefrom.” State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996); see also State v. Rucker,
752 N.W.2d 538, 552- 53 (Minn. App. 2008), rev. denied (Minn. Sept. 23, 2008). The
prosecutor did not commit misconduct by arguing to the jury about the credibility of a
witness.
B. “We” Statements
Juneau also contends that the prosecutor engaged in misconduct during his closing
argument by repeatedly using the word “we” to align himself with the jury.
Juneau identifies five statements of the prosecutor during closing argument that he
believes constitute misconduct:
And then at some point there was a conversation, we’re led to
believe, about seeing some girls later, strippers, somewhere in
Coon Rapids for a party. . . .

So we’re led to believe that [J.I.] saw law enforcement, got
spooked, and actually got out of the car right where the officers
were in the area responding to a call. . . .

So we’re to believe that that’s what [J.I.] did the next
day. . . .

We don’t know why [J.I.] would step forward. . . .

We are supposed to believe, based on the testimony of
[J.I.], that the alternative theory here is that [J.I.] had somehow
put his bag with the methamphetamine into the center console
and, for whatever odd reason, the defendant had placed his bag
either in the passenger’s side seat or behind [J.I.].”

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Juneau relies on State v. Mayhorn, 720 N.W.2d 776 (Minn. 2006), in which the
supreme court stated that “a prosecutor is not a member of the jury, so to use ‘we’ and ‘us’
is inappropriate and may be an effort to appeal to the jury’s passions.” Id. at 790. Likewise,
a prosecutor may not “describe herself and the jury as a group of which the defendant is
not a part.” Id. Juneau contends that by using these “we” statements, in conjunction with
statements about what “to believe,” the prosecutor aligned himself with the jury but not his
sole witness, J.I. See id. at 790. In response, the state cites Nunn v. State, 753 N.W.2d 657
(Minn. 2008), in which the supreme court concluded that a prosecutor did not engage in
misconduct by using the word “we” when summarizing the evidence that had been
presented at trial. Id. at 663. The supreme court reasoned that a “we” statement “does not
necessarily exclude the defendant because the ‘we’ could reasonably be interpreted . . . to
refer to everybody who was in court when the evidence was presented.” Id.
The state is correct that the circumstances of this case are like those in Nunn and
unlike those in Mayhorn. As in Nunn, the prosecutor was summarizing evidence presented
to the jury and all other persons in the courtroom, including Juneau, during J.I.’s testimony.
See id. This case is very different from Mayhorn, in which the prosecutor used the word
“we” in the context of what the supreme court described as a possible “attempt[] to
highlight cultural differences between the predominantly white jury and the [African
American] defendant.” See 720 N.W.2d at 789. In this case, the prosecutor did not commit
misconduct by sometimes using the word “we.”
Thus, Juneau is not entitled to a new trial on the ground of prosecutorial misconduct.

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III. Downward Durational Departure
Juneau last argues that the district court erred by denying his motion for a downward
durational departure from the presumptive sentencing range.
The Minnesota Sentencing Guidelines generally provide for presumptive sentences
for felony offenses. Minn. Sent. Guidelines 2.C (2016). For any particular offense, the
presumptive sentence is “presumed to be appropriate for all typical cases sharing criminal
history and offense severity characteristics.” Minn. Sent. Guidelines 1.B.13 (2016); State
v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). A district court shall utilize the presumptive
sentencing range provided in the sentencing guidelines “unless there exist identifiable,
substantial, and compelling circumstances to support a departure.” Minn. Sent. Guidelines
2.D.1 (2016). For purposes of a request for a downward durational departure,“[s]ubstantial
and compelling circumstances are those demonstrating that the defendant’s conduct in the
offense of conviction was significantly more or less serious than that typically involved in
the commission of the crime in question. ” State v. Hicks, 864 N.W.2d 153, 157 (Minn.
2015) (quotations omitted).
In reviewing a decision on a motion to depart from the applicable sentencing range,
this court applies an abuse-of-discretion standard of review. Soto, 855 N.W.2d at 307-08.
A district court “ has broad discretion to depart” from the sentencing guidelines “only if
aggravating or mitigating circumstances are present.” State v. Best, 449 N.W.2d 426, 427
(Minn. 1989) (emphasis omitted). But “if aggravating or mitigating circumstances are not
present, the trial court has no discretion to depart.” Id. One way in which a district court
may abuse its discretion is by basing its decision “on an erroneous view of the law.” Soto,
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855 N.W.2d at 308 n.1 (quotation omitted). Whether an aggravating or mitigating
circumstance is present is, in essence, a question of law. See Best, 449 N.W.2d at 427.
“[T]o the extent a decision to depart turns on a question of law, reviewing the decision for
an abuse of discretion . . . calls for resolving the legal question de novo.” Soto, 855 N.W.2d
at 308 n.1; accord State v. Jackson, 749 N.W.2d 353, 357 (Minn. 2008); State v. Dentz,
919 N.W.2d 97, 101 (Minn. App. 2018); Dillon v. State, 781 N.W.2d 588, 595 (Minn. App.
2010), rev. denied (Minn. July 20, 2010); State v. Grampre, 766 N.W.2d 347, 350 (Minn.
App. 2009), rev. denied (Minn. Aug. 26, 2009).
In this case, the district court acknowledged the standard for a downward durational
departure but rejected Juneau’s arguments. Juneau contends that, for two reasons, his
offense was significantly less serious than a typical third-degree possession offense.
First, Juneau contends that a downward departure is warranted on the ground that
he possessed an amount of methamphetamine that is only slightly ( 0.3 grams) above the
minimum 10-gram amount required for a third-degree methamphetamine possession
offense. The amount of methamphetamine that Juneau possessed is within the weight
range identified by the legislature. See Minn. Stat. § 152.023, subd. 2(a)(1). It is
questionable whether possession of such an amount could be deemed “significantly . . .
less serious than that typically involved in the commission of the crime in question.” See
Hicks, 864 N.W.2d at 157 (quotation omitted). Even if that were so, reversal is not required
because the district court determined that the evidence in this case does not warrant a
departure. The district court expressly stated, “There was nothing extraordinary in the
testimony of this case that would indicate that the possession in this situation . . . was less
14
onerous than somebody else in a similar offense . . . of third degree possession of a
controlled substance.” The district court did not abuse its discretion in making that
determination.
Second, Juneau contends that the jury may have found him “not wholly responsible”
for possession of the methamphetamine if it relied on the jury instruction concerning joint
possession. Juneau does not cite any caselaw for the proposition that joint possession of a
controlled substance is “significantly . . . less serious than that typically involved in the
commission of the crime in question.” S ee id. Also, we do not know whether the jury
believed J.I.’s testimony that the methamphetamine belonged to him, not to Juneau. In any
event, the district court described Juneau’s offense as “a very straightforward case of third
degree possession of a controlled substance.” The district court did not abuse its discretion
in rejecting Juneau’s argument concerning mitigation due to joint possession.
Juneau also argues, in the alternative, that the district court erred by not exercising
discretion when ruling on his motion for a downward durational departure. A district court
is not required to state reasons for imposing a presumptive sentence. State v. Johnson, 831
N.W.2d 917, 925 (Minn. App. 2013), rev. denied (Minn. Sept. 17, 2013); State v. Van
Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985). The transcript shows that the district court
considered both of Juneau’s arguments for departure and rejected them. It appears that the
district court did not fail to exercise discretion when it imposed its sentence on Juneau.
Thus, the district court did not err by denying Juneau’s motion for a downward
durational departure.
Affirmed.