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This opinion is nonprecedential except as provided by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
A21-0444

State of Minnesota,
Respondent,

vs.

Joshua John Keil,
Appellant.

Filed March 21, 2022
Affirmed
Reilly, Judge

Stearns County District Court
File No. 73-CR-19-8098

Keith Ellison, Attorney Genera l, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle P. Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Pres iding Judge; Reilly, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
On appeal from his conviction of first-degree possession of a controlled substance,
appellant argues that the district court (1) erred by denying his motion to suppress evidence
seized during a search of his vehicle, and (2 ) violated his constitutional right to present a
2
complete defense by sustaining the state’s objection to his testimony about his past injuries
at trial. We affirm.
FACTS
In the evening of September 21, 2019, an officer of the Avon police department
conducted a traffic stop and identified the driver as appellant Joshua John Keil. The officer
approached the vehicle and observed that Ke il had “sunken facial features” and “rapid
movements,” which the officer believed to be common with current or past substance use.
The officer also observed that various parts of the vehicle’s panels were pulled out or
removed and that the radio was partially re moved from the dashboard , which he thought
could be signs of concealing c ontrolled substances. The officer asked Keil to step out of
the vehicle to question him ab out his use of alcohol and co ntrolled substances. Keil
complied and the officer noticed that Keil had “bloodshot or red eyes.”
The officer questioned Keil about any drug use; Keil responded that he had used
methamphetamine about a month earlier. Th e officer then asked Keil to perform field
sobriety and drug recognition tests which included shining a light on Keil’s pupils. Keil’s
pupils had a minimal reaction to the direct light, and he exhi bited rapid eye flutter. The
officer also took Keil’s pulse which registered high at 130 beats pe r minute. The officer
asked Keil to walk nine steps and balance on one leg. Keil informed the officer that he had
a traumatic brain injury (TBI) which caused him to have balance issues. The officer asked
Keil to “just do the best he could,” but Keil could not complete the test.
The officer again asked about Keil’s drug use and Keil admitted to using
methamphetamine within the last 36 hours. Keil consented to a search of his person and
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the officer found no drugs or drug parapherna lia on him. The officer then requested to
search Keil’s vehicle, but Keil denied consent. The officer called for backup and told Keil
he would be running his dog trained in narcotics detection around the outside of the vehicle.
When asked whether the dog would alert to the presence of drugs, Keil responded, “I hope
not.” The officer ran the dog around the exte rior of the vehicle, and it alerted to the
presence of narcotics. The o fficer searched the interior of the vehicle where the dog had
alerted and found methamphetamine. Keil wa s arrested for possession of a controlled
substance. While waiting for a tow truck to remove the vehicle from the highway ramp,
the officer ran the dog around the vehicle once more, and the dog again alerted to the
presence of drugs. The officer searched the vehicle a second time but found no additional
controlled substances.
Keil moved to suppress the controlled-substa nce evidence. The district court held
a contested omnibus hearing and the arresting officer testifie d about the search of Keil’s
vehicle and his dog’s narcotics detection training. The officer testified that before stopping
Keil, he had deployed the dog about five to ten times since becoming certified in narcotics
detection in May 2019. When asked by counsel how many times the dog falsely alerted to
the presence of narcotics, the officer testified: “None. I don’t know. I mean, none that I’m
aware of.”
The district court denied Keil’s motion to suppress evidence, finding that the
arresting officer had reasonable suspicion to conduct a dog-sniff search of the vehicle and
that the dog used was reliable.
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The district court conducted a jury trial. Keil chose to testify in his own defense
and his counsel asked him about his TBI in the following exchange:
Counsel: Okay. Mr. Keil, during your roadside testing,
you advised [the arresting officer] that you had a
traumatic brain injury, and that was going to
affect how you did on those roadside tests. How
did that happen?
Keil: I was in a motorcycle accident in April of 2015.
Counsel: And during this accid ent, did you suffer from any
injuries?
Prosecutor: Objection. Relevance, Your Honor.
An off-the-record sidebar occu rred on the objection and the district court sustained the
state’s objection. Keil then testified about his experience with homelessness. He testified
that he had been staying with a friend in Fa rgo, North Dakota, and that the friend asked
him to drive to Hastings, Minnesota, to “compensate him for sleeping on his couch.” Keil
testified that when he arrive d in Hastings, “[a] gentleman approached the back of [his]
truck, threw something in the back, waved to [him]; and then he left.” He testified that he
did not know what the item was. After the trial, the jury found Keil guilty as charged. This
appeal follows.
DECISION
Keil challenges the district court’s order denying his motion to suppress evidence.
He also argues that the district court violated his constitutional right to present a complete
defense when it prohibited him from testifying about the circumstances which caused him
to sustain a TBI. We address each argument in turn.
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I. The district court did not err in denying Keil’s motion to suppress evidence.
Keil first challenges the district court’s de nial of his motion to suppress evidence.
He argues that the evidence was discovered illegally because the officer lacked reasonable
suspicion to conduct a dog-snif f search of his vehicle. He also contends that the drug
detecting dog was unreliable and thus did not provide probable cause to search the vehicle.
The United States and Minnesota Constitutions prohibit “unreasonable searches and
seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. Evidence obtained during an
unconstitutional search or seiz ure must be suppressed. State v. Diede, 795 N.W.2d 836,
842 (Minn. 2011). “When reviewing pretrial orders on motions to suppress evidence,
[appellate courts] may independen tly review the facts and determine, as a matter of law,
whether the district court erred in suppressing—or not suppressing—the evidence.” State
v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We review the district court’s factual findings
for clear error and its legal determinations de novo. State v. Ortega, 770 N.W.2d 145, 149
(Minn. 2009).
A. Reasonable suspicion
Under the principles es tablished by the United States Supreme Court in Terry v.
Ohio, 392 U.S. 1 (1968), a police officer may “stop and temporarily seize a person to
investigate that person for cr iminal wrongdoing if the offi cer reasonably suspects that
person of criminal activity.” Diede, 795 N.W.2d at 842 (quotation omitted). “Reasonable
suspicion must be based on specific, articulable facts that allow the o fficer to be able to
articulate . . . that he or she had a particularized and objective basis for suspecting the seized
person of criminal activity.” Id. at 842-43 (quotations omitted). These principles set out
6
in Terry apply to motor vehicle stops for minor traffic violations and the expansion of such
stops to “conduct a narcotics-detection dog sn iff around the exterior of a motor vehicle.”
State v. Wiegand, 645 N.W.2d 125, 137 (Minn. 2002).
The reasonable-suspicion standard is met “when 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 standard is not high, but it requires more than an unparticularized
hunch. Id. When determining whether an office r reasonably suspected criminal activity,
courts consider the totality of the circumstances. State v. Martinson, 581 N.W.2d 846, 852
(Minn. 1998).
Keil does not challenge the initial stop as unl awful but contends that police lacked
reasonable suspicion to expand the scope of the initial stop to conduct a dog-sniff search
of his vehicle. “[E]ach incremental intrusi on during a stop must be strictly tied to and
justified by the circumstances which rendered the initiation of the stop permissible.” State
v. Askerooth , 681 N.W.2d 353, 364 (Minn. 2004) (quotations omitted). Under the
Minnesota Constitution, an intrusion not stric tly tied to the circumstances that made the
initial stop permissible must be supported by “at least a reasonable suspicion of additional
illegal activity.” State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).
Here, the district court determined that the officer had reasonable, articulable
suspicion of criminal activity to warrant the use of a narcotics detecting dog-sniff search
around the vehicle based on the officer’s tes timony about the following circumstances.
The officer observed Keil’s sunken facial fe atures and rapid jerky movements which he
7
testified could suggest the use of a controlled substance. Th e officer also observed that
various parts of the vehicle’s panels were removed from the dashboard and that the radio
was partially protruding. From the officer’s training and experience, he noted that the
removal of panels could suggest the concealing and transporting of controlled substances.
And the officer testified that Keil had bloodshot eyes, his pupils had a minimal reaction to
light, his pulse rate was high, an d he could not complete the fi eld sobriety tests. Finally,
Keil admitted to the officer that he used methamphetamine just 36 hours before the traffic
stop.
Keil argues that some circumstances on which the state relies cannot establish
reasonable suspicion of criminal activity. Citing State v. Lugo, he argues that the removal
of panels in a vehicle does not suggest drug-related activity. 887 N.W.2d 476, 487 (Minn.
2016). In Lugo, the supreme court determined that the lack of any signs of drugs or drug
trafficking in a car that appeared “lived-in” could not, alone, establish reasonable suspicion.
Id. at 480, 487. While we agree that the missing panels in the vehicle would not
independently establish reasonable suspicion, the missing panels were just one factor in the
totality of the circumstances. And even if we subtract this factor from our analysis, the
remaining circumstances adequa tely establish reasonable susp icion of criminal activity.
See id. at 487 (determining that even without considering the removal of the vehicle’s
center console, the remaining facts established reasonable suspicion).
The totality of the circumstances show that Keil exhibited several signs of
impairment, he failed routine field sobriety tests, his vehicle had missing and removed
interior panels, and he admitted to using controlled substances just 36 hours earlier. Thus,
8
we conclude that the officer had reasonable, articulable suspicion to expand the scope of
the traffic stop to conduct a dog-sniff search of Keil’s vehicle.
B. Probable cause
Keil contends that, even if reasonable su spicion supported the expansion of the
traffic stop, the search of the inside of his vehicle was unconstitutional. Generally, a search
is unreasonable when it is conducted without a warrant issued upon probable cause. State
v. Flowers , 734 N.W.2d 239, 248 (Mi nn. 2007). But th e automobile exception to the
warrant requirement allows the police to search a vehicle without a warrant when they have
probable cause that the vehicle contains contraband. Id. “Probable cause exists when there
are facts and circumstances sufficient to wa rrant a reasonably prude nt person to believe
that the vehicle contains contraband.” State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016)
(quotation omitted).
The United States Supreme Court has held that a narcotics dog alert to the presence
of controlled substances provides probable cau se to search if the dog has successfully
completed a certification or training program. Florida v. Harris , 568 U.S. 237, 246-47
(2013). Under the totality of the circumstan ces, the question is whether “all the facts
surrounding a dog’s alert” would make a reasona ble person suspect evidence of a crime.
Id. at 248. The totality of the circumstances includes the dog’s training, certification, field
history, and the circumstances of the sniff in question. Id. at 247.
Keil argues that the state did not establis h probable cause to search his vehicle
because the particular dog used in the search was unreliable and the finding that the dog
had “zero false positives” was clearly erroneous. He asserts that the dog was only recently
9
certified before conducting the sniff of his ve hicle and that the st ate failed to provide
sufficient evidence or any detail of the dog’s training. We disagree.
While the state did not offer into evidence any activity logs or training certifications
detailing the dog’s deployments, the officer testified in some depth about the dog’s training,
certification, and field history in the following testimony:
Q: What does that certification process look like?
A: I think it was about 13 week s of training with me and
my dog Monday through Frid ay working on—I have a
dual purpose K9 partner so patrol aspect related to
tracking and so on, and then narcotics.
Q: So you said you’re certifie d. Is your K9 certified as
well?
A: Yes. We are certified narcotics detection.
Q: And what training did your dog have to go through to
become certified?
A: We do all that together. Going through narcotics
detection training, I guess, training how to locate and
indicate the presence of narcotics.
Q: And to become certified, do es a K9 have to pass certain
tasks before it’s given a certification?
A: Yes. I’m certified by the NPCA, so certification
includes indicating which room s and/or vehicles that
contain narcotics.

The officer also testified that he was trained to determine whether the dog alerted to false
positives. The officer testified that the dogs learn to imprin t on the specific odor of
something, and “not just nothing.” The officer testified that when the dog begins training
there often is not a “change of behavior,” but once trained, the dog will respond when it
detects a specific odor. The o fficer testified that he had wo rked with his dog since May
2019, about four months before the stop, and he had deployed the dog on about five to ten
stops.
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In this case, Keil had a chance to cross-examine the officer about the dog’s training
and certifications and the opportunity to presen t his own witnesses in his defense. Thus,
he had a chance to challenge the dog’s reliability at the district court. Here, the dog made
a positive alert to the bed of the truck where narcotics were found. Caselaw does not
require a certain number of dog deployments in the field before a narcotics detecting dog
can be considered reliable. And there ar e no circumstances surrounding the dog-sniff
search here that suggest unreliability. Based on the totality of the circumstances, the dog-
sniff search was reliable and therefore provided the officer with sufficient probable cause
to search the vehicle.
For these reasons, we conclude that the di strict court did not err in denying Keil’s
motion to suppress evidence.1
II. The district court did not err in its evidentiary decision.
Keil argues that he was denied his constitutional right to present a complete defense
when the district court sustained an objec tion to his testimony a bout the circumstances
surrounding his TBI.
Due process requires affording defendants a meaningful opportunity to present a
complete defense. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7. And defendants
have a due process right to explain their conduct to a jury, even if their motive is not a valid

1 Together with challenging Keil’s arguments above, the state asserts that this court should
affirm the district court’s denial of Keil’s suppression motion because the
methamphetamine found in Keil’s truck would have inevitably been discovered through
lawful means. Because we determine that th e district court did not err in denying the
motion to suppress, we decline to address this issue.
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defense. State v. Thompson, 617 N.W.2d 609, 612 (Minn. App. 2000). But the right to
present a complete defense is not unlimited; a defendant must still co mply with the rules
of procedure and evidence. State v. Wolf , 605 N.W.2d 381, 384 (Minn. 2000).
“Evidentiary rulings rest within the sound discretion of the di strict court, and we will not
reverse an evidentiary ruling absent a clear abuse of discretion.” State v. Ali, 855 N.W.2d
235, 249 (Minn. 2014). When the district court’s evidentiary ruling results in the erroneous
exclusion of defense evidence in violation of the defendant’s c onstitutional rights, the
verdict must be reversed unless the error was harmless beyond a reasonable doubt. State
v. Post, 512 N.W.2d 99, 102 (Minn. 1994).
Minnesota has a broad definition of relevant evidence. Minn. R. Evid. 401. But the
district court has discretion to exclude othe rwise relevant evidence when its “probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or . . . waste of time[.] ” Minn. R. Evid. 403. Keil chose to testify
in his own defense and his co unsel asked him about how he sustained a TBI. The state
objected to the testimony on the grounds of relevance and an off-the-record sidebar
occurred. The district court sustained the state’s objection and Keil then testified about his
experience with homelessness and the reasons why he was traveling from the Twin Cities.
The state asserts that Keil’s due process argument is not properly before this court.
We agree. To preserve an objection for a ppellate review following the district court’s
exclusion of evidence, the party offering the ev idence must ensure that “the substance of
the evidence was made known to the court by offer or was apparent from the context within
which questions were asked.” Minn. R. Ev id. 103(a)(2). Unless the substance of the
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evidence is apparent from the context, or ther e is an offer of proof, “an appellate court
cannot assess the significance of the excluded testimony.” State v. Harris , 713 N.W.2d
844, 848-849 (Minn. 2006).
In this case, Keil did not make an offer of proof on the record. And we cannot
speculate about what the record might have shown if he had made the offer of proof because
the substance of the testimony is not apparent from the context. See State v. Lee , 494
N.W.2d 475, 479 (Minn. 1992) (determining that the defendant did not preserve the
claimed errors for review when he failed to ma ke an offer of proof showing the nature of
the evidence excluded). Thus, Keil’s failure to make an offe r of proof prevents us from
concluding that the district court erred.
Affirmed.