This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-391

 

State of Minnesota,

Respondent,

 

vs.

 

Rafael Curtis Cervantes,

Appellant.

 

Filed November 26, 2002

Reversed

Lansing, Judge

 

Martin County District Court

File No. K501511

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN† 55103; and

 

Terry W. Viesselman, Martin County Attorney, Suite 130, 923 North State Street, Fairmont, MN† 56031 (for respondent)

 

John M. Stuart, State Public Defender, Suite 600, 2829 University Avenue SE, Minneapolis, MN† 55414; and

 

Lisa Agrimonti, Special Assistant Public Defender, W2200 First National Bank Building, 332 Minnesota Street, St. Paul, MN† 55101 (for appellant)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Minge, Judge.

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† On appeal from conviction, Rafael Cervantes challenges the district courtís denial of his pretrial motion to suppress evidence obtained as a result of a drug-sniff of his car by a narcotics-detecting dog.† Because the officer conducted the drug-sniff without a reasonable, articulable suspicion of drug-related criminal activity, we reverse.

F A C T S

††††††††††† The district court found Rafael Cervantes guilty of fifth-degree possession of a controlled substance.† The evidence supporting the conviction consisted of 243 grams of marijuana, seized following a drug-sniff of the exterior of Cervantesís car by a narcotics-detecting dog.† Cervantes waived his right to a jury trial and submitted the case to the court under Minn. R. Crim. P. 26.01, subd. 3 (describing procedure by which defendant can submit case on stipulated facts while preserving right to appeal the judgment and raise issues the same as from any trial to court).

††††††††††† The search of Cervantesís car stemmed from a routine traffic stop.† A Fairmont police officer on patrol noticed a passing car with expired registration tabs.† The officer stopped the car and spoke with Cervantes, the driver.† After Cervantes produced his driverís license, the officer returned to his squad car and ran a license check.† Records indicated that Cervantesís driverís license was also expired.†

††††††††††† The officer returned to Cervantesís car and gave him an oral warning on the traffic violations.† Cervantes said that his friend lived down the street and that he would leave his car there until he renewed his tabs.† The officer indicated that he would follow Cervantes to his friendís residence because of the expired licenses.† Before proceeding to the friendís residence, the officer asked for consent to search the car.† The officer testified at the omnibus hearing that he asked for consent to search because he had previously cited Cervantes for possession of marijuana.† After Cervantes declined to consent, the officer informed Cervantes that he had a narcotics-detecting dog in his squad car and that he was going to walk the dog around the car twice.† He advised Cervantes to roll up his window ďso there [would be] no safety issueĒ and then got the dog from his squad car.

††††††††††† On the first lap around the car, the dog indicated the presence of drugs.† Cervantes stepped out of his car and showed the officer the location of a small amount of marijuana and a pipe in the backseat area.† Further searching of the car yielded a black bag containing six smaller bags of marijuana.† Cervantes was arrested and charged with three drug-related offenses and with driving without a valid driverís license.

††††††††††† In this appeal, Cervantes argues that the evidence should have been suppressed because the police officer detained him longer than necessary to complete the traffic stop and because the officer conducted the drug-sniff without sufficient suspicion of criminal behavior.† In a letter to the court, the state concedes that the decision to admit the marijuana into evidence should be reversed because the officer conducted the drug-sniff without a reasonable, articulable suspicion of drug-related criminal activity.

D E C I S I O N

††††††††††† In reviewing a district courtís ruling on search and seizure issues based on undisputed facts, we independently determine whether the evidence must be suppressed.† State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

††††††††††† In a case decided after Cervantesís omnibus hearing and trial, the Minnesota Supreme Court held that under both the Fourth Amendment to the U.S. Constitution and Article I, Section 10, of the Minnesota Constitution, a law-enforcement officer must have a reasonable, articulable suspicion of drug-related criminal activity before conducting a drug-sniff of a car stopped for a routine traffic violation.† State v. Wiegand, 645 N.W.2d 125, 137 (Minn. 2002).† We must therefore determine whether the officer had a reasonable, articulable suspicion of drug-related criminal activity before conducting the drug-sniff of Cervantesís car with a narcotics-detecting dog.

A reasonable, articulable suspicion may be demonstrated by a totality of circumstances.† State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).† But it may not be the product of ďmere whim, caprice, or idle curiosity.Ē† Marben v. Depít of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (quotation omitted).† The arresting officer testified that he asked Cervantes to consent to a search of his car and conducted a drug-sniff inspection of the car solely because of ďprior knowledge of [Cervantes] carrying marijuana and controlled substances.Ē† Prior conduct is by itself insufficient to provide reasonable, articulable suspicion.† See United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994) (stating that no case found suggesting contrary); State v. Baumann, 616 N.W.2d 771, 776 (Minn. App. 2000) (Randall, J., concurring) (citing ďsettledĒ principle that personís prior record is not by itself sufficient to provide reasonable suspicion for investigatory stop).

Because deployment of a narcotics-detecting dog at the conclusion of a routine traffic stop requires a reasonable, articulable suspicion of drug-related criminal activity, and because the drug-sniff in this case was based solely on Cervantesís prior record, we reverse the conviction.

††††††††††† Reversed.