This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1448

 

State of Minnesota,

Respondent,

 

vs.

 

Dale Stephen Buchta,

Appellant.

 

Filed April 8, 2003

Reversed

Randall, Judge

 

Crow Wing County District Court

File No. K10199

 

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

 

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

Bradford Colbert, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

 

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant Dale Buchta challenges his conviction for third-degree controlled-substance offense, arguing that the seizure of methamphetamine in the vehicle in which he was riding was the fruit of an illegal canine sniff of the exterior of the vehicle and that the evidence is not sufficient to support the conviction. Because we conclude that the canine sniff was an illegal search, we reverse.

FACTS

Brainerd police stopped a vehicle in which appellant was a passenger on January 14, 2001, because the car had a broken taillight lens. Appellant identified himself as the owner of the car. A backup officer arrived within minutes and had a trained narcotics-detection dog sniff the exterior of the vehicle while it was stopped for the equipment violation. The dog indicated the presence of a controlled substance, and a later search of the vehicle revealed more than three grams of methamphetamine stashed between the driver's seat and front passenger seat and a lesser amount under the driver's seat.

Appellant, who was charged with third-degree controlled-substance offense, filed a motion to suppress the methamphetamine, in part on the ground that the canine sniff was illegal. The district court denied the motion, and at trial, the jury found appellant guilty of the charged offense. The district court sentenced appellant to 33 months in prison.

D E C I S I O N

In reviewing a pretrial order on a motion to suppress evidence, this court independently reviews the facts and determines, 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).

Appellant argues that police illegally conducted the canine sniff of the outside of the vehicle without having articulable suspicion of any illegality other than the equipment violation. Therefore, appellant argues, the methamphetamine must be suppressed as a fruit of that illegal search and his conviction must be reversed. The state, with praiseworthy candor that we appreciate, concedes that under State v. Weigand, 645 N.W.2d 125, 134 (Minn. 2002), the canine sniff was illegal and the methamphetamine, therefore, should have been suppressed. As the state found Weigand controlling, so do we.

In State v. Weigand, the supreme court held that police conducting a traffic stop for an equipment violation cannot conduct a canine sniff of the exterior of the vehicle "without some suspicion of illegal activity" beyond the equipment violation. Id. at 187. The court noted that there was no claim that the canine sniff had improperly extended the duration of the traffic stop. Id. at 136.

Police acquired no additional suspicion in this case beyond the broken taillight. Although the canine sniff, as in Weigand, may not have extended the duration of the traffic stop, it extended the scope of the stop without the additional articulable suspicion required by Weigand. Accordingly, the canine sniff was an unreasonable search proscribed by the Fourth Amendment, and all evidence acquired as a result of it must be suppressed.

The suppression of the methamphetamine requires reversal of appellant's conviction, which was based on that evidence. We decline to address appellant's challenge to the sufficiency of the evidence. Although double jeopardy is only implicated if appellant's conviction were reversed outright on sufficiency of the evidence, it does appear suppression of the methamphetamine leaves the state with no evidence on which to retry appellant. See generally State v. Harris, 533 N.W.2d 35, 36 n.1 (Minn. 1995) (noting that double jeopardy bar applies following reversal for insufficient evidence).

Reversed.