author: TERNUS, Chief Justice.

text:
    STATE of Iowa, Appellee, v. Benjamin Thomas GORDON, Appellant.
    No. 04-1474.
    Supreme Court of Iowa.
    May 18, 2007.

      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, R. Steven Johnson, County Attorney, and Michael K. Jacobsen, Assistant County Attorney, for appellee.
   TERNUS, Chief Justice.

The appellant, Benjamin Gordon, challenges his sentence as a habitual offender on the charge of criminal mischief in the second degree. He claims the prior felony convictions proven by the State are insufficient to warrant application of the habitual-offender statute. We agree and remand for resentencing on the conviction of second-degree criminal mischief.

I. Background Facts and Proceedings.

Gordon was charged by trial information with one count of criminal mischief in the second degree, a class “D” felony. See Iowa Code § 716.4 (2003) (defining offense of criminal mischief). In the same pleading, he was accused of being a habitual offender based on two prior convictions for third-degree burglary. Id. § 902.8 (providing for enhanced sentences for habitual offenders). On July 21, 2004, Gordon waived his right to counsel and pled guilty to the criminal-mischief charge. He also admitted that he was a habitual offender under section 902.8. The district court accepted the defendant’s guilty plea and admission of habitual-offender status.

On August 11, 2004, the court sentenced the defendant to fifteen years in prison pursuant to the habitual-offender statute. Compare id. § 902.9(3) (“An habitual offender shall be confined for no more than fifteen years.”), with id. § 902.9(5) (“A class ‘D’ felon, not a habitual offender, shall be confined for no more than five years .... ”). The defendant filed a notice of appeal, and counsel was appointed to represent him.

In his appeal, the defendant contends he does not qualify as a habitual offender, and therefore, his sentence is illegal and void. The State claims the defendant did not preserve error because he admitted to being a habitual offender at the guilty plea proceeding. The appeal was transferred to the court of appeals, which held error was not preserved. This court granted further review.

II. Issues on Appeal.

The underlying claim made by the defendant — that his sentence is illegal and void — is based on the fact that his prior convictions for burglary both occurred on January 17, 1995. The habitual-offender statute defines a habitual offender as “any person convicted of a class ‘C’ or a class ‘D’ felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States ....” Id. § 902.8. The State does not challenge the defendant’s claim that under our case law, “each offense must be complete as to a conviction and sentencing before commission of the next in order to qualify for the enhancement of penalty under a habitual offender statute.” State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005). Clearly, the defendant’s prior burglary convictions do not qualify as two prior convictions undei; this rule.

The issue in this appeal, then, is not whether the defendant is a habitual offender. Based on the record before us, he is not. The issue we must address on appeal is whether the defendant can challenge his habitual-offender status for the first time on appeal. If he can, we must then decide whether, upon remand, the prosecution can introduce evidence of other prior felony convictions in support of its allegation the defendant is a habitual offender.

III. Error Preservation.

“An illegal sentence is one that is not permitted by statute.” State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). It “is void and ‘not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation.’ Because an illegal sentence is void, it can be corrected at any time.” Id. (quoting State v. Ohnmacht, 342 N.W.2d 838, 843 (Iowa 1983)). This court has applied these principles to an enhanced sentence entered under an erroneous conclusion that the defendant was a habitual offender. Id.

In Woody, the defendant was charged with first-degree robbery as a habitual offender. Id. at 216-17. Pursuant to a plea bargain, he pled guilty to second-degree robbery and admitted to being a habitual offender. Id. at 217. On appeal, he challenged his enhanced sentence as a habitual offender, and the State agreed that the enhanced sentence was not appropriate. Id. The State argued the sentence should be vacated and the case remanded so the defendant could withdraw his guilty plea. Id. In the alternative, the State suggested that the defendant’s claim be preserved for a possible postconviction relief action. Id.

We held it was not necessary for the defendant to raise the sentencing error as an ineffective-assistance-of-counsel claim because the sentence was illegal and could be challenged on direct appeal, notwithstanding the defendant’s guilty plea. Id. This court pointed out that habitual-offender status is not a separate offense; it is simply a sentencing enhancement. Id.; accord State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989) (stating “habitual offender statutes do not charge a separate offense,” but simply “provide for enhanced punishment on the current offense”). Consequently, if the habitual-offender statute does not apply, an enhanced sentence based on habitual-offender status is “not permitted by statute” and is, therefore, illegal. Woody, 613 N.W.2d at 217. Accordingly, we held, the defendant “did not plead guilty to an habitual offender status because he could not. Rather, he pled guilty to robbery in the second degree and admitted the previous convictions.” Id. at 218; accord Brady, 442 N.W.2d at 58 (“An admission by a defendant of prior convictions cannot be said to be a plea of guilty to an habitual offender ‘charge’ ....”).

The same analysis is applicable here. The defendant did not plead guilty to being a habitual offender; he pled guilty to second-degree criminal mischief and admitted his previous convictions. Those convictions, however, were not sufficient to classify the defendant as a habitual offender. Consequently, his enhanced sentence based on his purported habitual-offender status was illegal. As an illegal sentence, it is not subject to normal error preservation rules and can be challenged at any time. Consequently, we disagree with the court of appeals’ conclusion that the defendant’s failure to preserve error prevents him from challenging his sentence on appeal. To the contrary, the defendant is permitted to challenge his sentence on appeal, notwithstanding his guilty plea. Therefore, we vacate the court of appeals’ contrary decision.

IV. Remedy.

Because the State does not dispute that the defendant’s prior convictions do not support a finding that the defendant is a habitual offender, we must vacate the defendant’s sentence and remand for re-sentencing. The parties disagree, however, upon the scope of this remand.

The State asks that upon remand it be allowed to amend the trial information to allege other prior felony convictions of the defendant, thus permitting proof of these convictions at a new hearing. Relying on the fact that the habitual-offender charge is not a substantive offense, but merely a sentencing enhancement, it argues that double-jeopardy principles do not apply.

Assuming the State is correct in its assertion that the Double Jeopardy Clause does not apply so as to preclude a new evidentiary hearing on the enhancement issue, we have still found no basis in the record to conclude the initial hearing on this issue was inadequate. The State has pointed to no error in the district court proceeding that would entitle the State to a new hearing, nor does the record reveal any other matter that hindered the prosecution’s ability to amend the trial information prior to that hearing in order to rely on other prior convictions. In sum, the State had a full and fair opportunity to support its accusation that the defendant was a habitual offender, but its evidence was insufficient. In view of these circumstances, the prosecution is not entitled to a second bite of the apple to remedy its failure of proof. Cf. Woody, 613 N.W.2d at 218 (holding State was “stuck” with unen-hanced conviction on reduced charge to which defendant pled guilty and prosecution could not reinstate original charge upon remand: “[T]he State should bear the consequences of a decision that was based on the State’s wrong assumption that the habitual-offender statute applied.”); M-Z Enters., Inc. v. Hawkeye-Sec. Ins. Co., 318 N.W.2d 408, 416 (Iowa 1982) (holding party should not rely on court’s power to remand for new trial under Iowa Rule of Appellate Procedure 26 (now rule 6.26) “as a substitute for careful trial preparation and presentation of evidence”). This case is remanded for resen-tencing on the second-degree criminal mischief conviction.

DECISION OF COURT OF APPEALS VACATED. JUDGMENT OF CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING.

All justices concur except HECHT and APPEL, JJ., who take no part.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    William HANNAN, Appellant, v. STATE of Iowa, Appellee.
    No. 05-0146.
    Supreme Court of Iowa.
    May 25, 2007.

      Kent A. Simmons, Davenport, for appellant.
    Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney General, for appellee.
   CADY, Justice.

In this case we must decide whether a defendant’s right to counsel under our state and federal constitutions was violated and if counsel’s failure to vindicate those rights resulted in ineffective assistance of counsel. We agree with the defendant that his right to counsel was violated and that his counsel rendered ineffective assistance in failing to assert his rights.

I. Background Facts and Proceedings.

William Hannan was charged with second-degree sexual abuse in violation of Iowa Code section 709.3 (1995). The charge followed his arrest for an incident involving his live-in girlfriend on December 12, 1996. An assistant public defender was appointed by the district court to represent Hannan. Within a week, Hannan made a request for substitute counsel which was eventually granted.

Hannan then moved to continue his trial to permit substitute counsel additional time to prepare for the trial. The court continued the trial. As the new trial date approached, Hannan again moved for substitution of counsel. He indicated, among other things, he did not have confidence in his attorney’s ability or motivation, and that he had major differences in opinion with his attorney on how to handle his case. The district court granted the motion. It found Hannan established “good cause for withdrawal.” The court appointed a third court-appointed attorney.

Because the trial date was just over a month away, substitute counsel moved to continue the trial so he could prepare Han-nan’s defense. The court set the matter for a hearing. Before the hearing, Han-nan moved for another substitution of counsel and the matter was set for hearing.

At the conclusion of the hearing, the following exchange took place:

THE COURT I’m going to move the case once more. I’m going to appoint Denis Faber. If you can’t keep Mr. Faber, you represent yourself. It is that simple. If you want to be your own attorney, come in and tell us so. It is like a doctor. If you want a doctor to do surgery on your lungs and he won’t go in through your feet, so you want another doctor. It is probable you won’t find an attorney to do the things you want to do, so odds are you will have to do them yourself from that table, representing yourself. This is your last opportunity to have an attorney to represent you. You better stick with him. If you don’t, if you try to get rid of him or push him where he has to get out on ethical grounds, you will be here all by yourself and have to be your own lawyer, Mr. Hannan. That’s it.
(To the Court Reporter) “Order, State versus Hannan. Three attorneys have now withdrawn from representation of Mr. Hannan. Because Mr. Harmon’s withdrawal is based on an ethical ground, the Court grants it.
The Court has advised Mr. Hannan in court that the Court will appoint one more attorney for him and this is the last attorney. He must either get along with this attorney and not seek to have him do anything the attorney claims will violate the code of ethics or he will end up trying this case pro se and represent himself.
It is now ordered that Attorney Denis Faber is appointed to represent the Defendant at public expense.... ”
Now, you have gotten Denis Faber. He is your attorney.
He is it. From now on, you keep him or you represent yourself.
THE DEFENDANT: Well, I’m just trying to defend myself, Your Honor.
THE COURT: I know it and that is how you will do it. You will defend yourself if you don’t keep this lawyer.

The trial was continued for another month.

Five days before this new trial date, Faber filed a motion to continue the trial to a later date. In his motion, Faber admitted that he was only appointed over a month earlier and that he had not had time to review the file or even meet with the defendant. The district court held a hearing on Faber’s motion, granted the motion, and continued trial to February 1998.

Prior to trial, Hannan learned that Fa-ber had never tried a criminal case, and never tried any case before a jury. Because Faber was “concerned that Defendant’s right to a fair trial is compromised by this circumstance,” Faber made a motion to appoint co-counsel. Before the motion was ruled on, Hannan told Faber he no longer wanted his representation and would prefer to represent himself. As a result, Faber filed a motion for leave to withdraw on December 30, 1997. The district court held a hearing on these motions in January. At this hearing, the following exchange took place:

THE COURT: The motion [for leave to withdraw] provides that the Defendant advised Mr. Faber that he, the Defendant, no longer wishes Mr. Faber to represent him and would prefer to represent himself. Is that true, Mr. Hannan?
THE DEFENDANT: Yes, sir.
THE COURT: And that’s yet your feeling today?
THE DEFENDANT: Yeah, I don’t have the money to afford the 6, 7, $8000 the attorneys want.
THE COURT: This is your fourth attorney.
THE DEFENDANT: Right.
THE COURT: And we had a long discussion, and my last order said that four was all we had for you, that was all we’d give you, that would prove to us satisfactorily there isn’t any attorney here that is going to be able to do what you want them to do.
THE DEFENDANT: I’m not happy with court-appointed attorneys.
THE COURT: Huh?
THE DEFENDANT: I’m not satisfied with court-appointed attorneys.
THE COURT: So you’re either going to hire one or represent yourself?
THE DEFENDANT: That’s correct.
THE COURT: Okay. That being the case, Mr. Faber, I’m going to grant your motion for leave to withdraw as counsel in the case.

After this exchange the court explained to Faber that it was going to reappoint him to “sit at counsel table during the trial.” The court then further explained what it expected of Faber as stand-by counsel.

Hannan then asked several questions of the court concerning his self-representation. He inquired about filing documents, jury selection, lesser included offenses, motions and witnesses, expenses, plea bargaining, and the possible verdicts that could be rendered. In response, the court also gave Hannan a brief overview of the trial procedures.

Following the hearing, the court sustained the motion to withdraw and overruled the motion to appoint co-counsel. The order made it clear that Hannan was proceeding pro se, and that Faber was “to serve strictly as a resource to the Defendant in terms of answering Defendant’s questions.”

Trial commenced with Hannan representing himself. Faber was present as stand-by counsel. At Hannan’s request, Faber conducted jury selection and freely participated in arguing Hannan’s pretrial motions. Hannan gave the opening and closing statements, and examined all witnesses.

The jury found Hannan guilty of second-degree sexual abuse. He was sentenced to serve a term of imprisonment not to exceed twenty-five years. Pursuant to section 902.12, Hannan was required to serve at least eighty-five percent of his sentence.

Hannan filed a pro se motion for new trial and a pro se motion in arrest of judgment. Both motions were based on a typographical error in the verdict form and evidence excluded at trial. These motions were denied, and Hannan appealed. The same claims in support of the posttrial motions were raised as error on appeal.

Faber continued to represent Hannan on appeal. The court of appeals affirmed the judgment and sentence. It held the district court did not abuse its discretion in excluding certain items of evidence, and the error in the verdict form did not prejudice the defendant.

Hannan filed a pro se application for postconviction relief (PCR). One of the reasons advanced in his application was an “Improper waiver of right to counsel,” in which Hannan stated there was “no record of where the defendant had knowingly, intelligently, and voluntarily waived his rights, to proceed pro se.” The PCR court appointed an attorney to represent Han-nan. The attorney filed an amended application in April of 2003. The amended application did not assert an improper waiver of counsel due to procedural errors, although it did assert claims of ineffective assistance of trial and appellate counsel. The claims of ineffective assistance of counsel, however, did not assert counsel was ineffective for failing to argue that an improper waiver of counsel occurred. The PCR court eventually denied Hannan relief, finding he had not shown how Faber had failed in performing an essential duty.

Hannan appealed the decision of the PCR court and retained Kent Simmons to represent him. Simmons included the improper waiver of counsel as a ground for his ineffective-assistance-of-counsel claim, and moved for a limited remand to develop the issue. We denied the motion, but granted his request to expand the record on appeal to include the original trial proceedings. The court of appeals affirmed the decision of the PCR court -without a decision under Iowa Rule of Appellate Procedure 6.24(1), (4). Hannan then petitioned this court for rehearing. We granted Hannan’s petition for further review.

II. Issues.

“On further review, we can review any or all of the issues raised on appeal or limit our review to just those issues brought to our attention by the application for further review.” Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005). In his application for further review, Hannan argues his trial, appellate, and postconviction counsel were ineffective in failing to challenge the adequacy of the defendant’s waiver of counsel. He also argues his trial, appellate, and postconviction counsel were ineffective in failing to challenge the denial of his request to reinstate counsel. Finally, Hannan argues his trial, appellate, and postconviction counsel were ineffective in failing to challenge the ineffective assistance of the defendant’s stand-by counsel at his original criminal trial. We choose to address Hannan’s first argument.

III. Standard of Review and Applicable Law.

We review claims of ineffective assistance of counsel de novo. State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998). “To prove ineffective assistance of counsel, the appellant must show that (1) counsel failed to perform an essential duty, and (2) prejudice resulted.” State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007). There is a presumption the attorney acted competently, and prejudice will not be found unless there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998).

IV.Preservation of Error.

The State argues Hannan failed to preserve error because Iowa Code section 814.7 (2005) does not apply in this ease, and Hannan failed to meet the requirements to preserve error in existence prior to the enactment of section 814.7. Section 814.7 allows a defendant to raise ineffective-assistance-of-counsel claims for the first time in PCR proceedings. Iowa Code § 814.7 (“The [ineffective assistance of counsel] claim need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconvietion relief purposes.”); see State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (explaining section 814.7); State v. Tate, 710 N.W.2d 237, 239-40 (Iowa 2006) (same). The section went into effect on July 1, 2004.

The State claims section 814.7 does not apply because of our rule that “statutes controlling appeals are those that were in effect at the time the judgment or order appealed from was rendered,” and the criminal judgment against Hannan which he is ultimately appealing occurred long before the effective date of the statute. Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003) (quoting Ontjes v. McNider, 224 Iowa 115, 118, 275 N.W. 328, 330 (1937)). Hannan argues the statute applies because the PCR judgment (that he is now appealing) took place months after the effective date of the statute.

We are not convinced, however, the rule the State relies upon is even applicable to section 814.7. Section 814.7 is not a “statute! ] controlling [an] appeal! ]” so much as it is a statute describing the procedure to bring a claim of ineffective assistance of counsel. Thus, we are not required to determine what “time the judgment or order appealed from was rendered” because we do not believe this rule applies to section 814.7.

Instead, we are convinced a different rule applies to section 814.7 that makes the statute applicable in this case. While most statutes are presumed to be prospective in application, remedial or procedural statutes may be applied retroactively. See Iowa Code § 4.5; Schuler v. Rodberg, 516 N.W.2d 902, 904 (Iowa 1994) (recognizing “that remedial and procedural statutes are exceptions to the general rule and may be applied retroactively”). Section 814.7 governs the methods by which a defendant may assert a claim of ineffective assistance of counsel. See Iowa Code § 814.7. As such, it “prescribes a method of enforcing rights or obtaining redress for their invasion.” Dolezal v. Bockes, 602 N.W.2d 348, 351 (Iowa 1999). Moreover, section 814.7 does not affect the substantive rights of parties, but rather “governs the practice, method, procedure, or legal machinery by which the substantive law is enforced or made effective.” Bd. of Trs. v. City of W. Des Moines, 587 N.W.2d 227, 231 (Iowa 1998). This indicates section 814.7 is procedural and may be applied retroactively.

Ultimately, however, we look to legislative intent to determine whether a statute applies retroactively or prospectively. Id. This can be determined by employing a three-part test. See id. Such a test requires that we look at the language of the statute, the evil to be remedied, and whether there was an existing statute that governed the evil to be remedied. Id.

There is nothing in the language of section 814.7 to indicate the legislature wanted the statute to apply retroactively. Nevertheless, the second and third factors indicate it should apply retroactively. Section 814.7 remedies the evil that occurs when litigants must raise ineffective assistance of counsel claims without an adequate record. Thus, the statute attempts to conserve judicial resources and place the defendant’s claim in the court that is most informed to handle it. See Straw, 709 N.W.2d at 133. There was no previous statute that adequately dealt with this concern. See Iowa Code chapter 822. As a result, we think the legislature’s attempt to fix a procedural wrong evinces an intent to make the statute retroactive. See Bd. of Trs., 587 N.W.2d at 231-32. Accordingly, Hannan’s claim is properly before us under section 814.7.

V. Discussion.

To prevail on his ineffective-assistance-of-counsel claims Hannan must prove by a preponderance of the evidence that his counsel failed to perform an essential duty and that such failure prejudiced him. See, e.g., Lane, 726 N.W.2d at 393. First we must decide if there was a constitutional violation as Hannan alleges. See, e.g., State v. Ceron, 573 N.W.2d 587, 590-92 (Iowa 1997) (first determining whether the defendant’s basis for ineffective assistance of counsel had merit, and determining that because it did not, counsel did not breach an essential duty). Hannan has alleged his constitutional right to counsel was violated under article I, section 10 of the Iowa Constitution and the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (applying the Sixth Amendment right to counsel upon the states through the Fourteenth Amendment). If a constitutional violation occurred then we can proceed to determine whether counsel failed to perform an essential duty by not vindicating those rights and whether prejudice resulted.

A defendant’s constitutional right to counsel is effective until waived. State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997). Unless Hannan properly waived his right to counsel, Hannan still had his constitutionally protected right to counsel “[a]t all critical stages of the criminal process.” Majeres, 722 N.W.2d at 182. Because Hannan’s stand-by counsel at trial is not equivalent to representation and does not cure an improper waiver, Hannan’s right to counsel was violated unless he properly waived it. Rater, 568 N.W.2d at 661 (“[T]he appointment of stand-by counsel is insufficient to satisfy the Sixth Amendment right to counsel when the court has failed to conduct an inquiry to ensure the defendant’s waiver of that right was knowing and intelligent.”). Therefore, the question we must decide is whether Han-nan properly waived his right to counsel.

A proper waiver must be voluntary, knowing, and intelligent. Stephenson, 608 N.W.2d at 782 (“[B]efore a trial court honors an accused’s request to waive the right to counsel, it must satisfy itself the defendant’s election is voluntary, knowing, and intelligent.”); Rater, 568 N.W.2d at 658 (“Before a trial court accepts the request, the court must make the defendant aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” (quoting Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942))). In order for the defendant to properly waive his right to counsel we have required courts “to engage the accused in a colloquy sufficient to apprise a defendant of the dangers and disadvantages inherent in self-representation.” Stephenson, 608 N.W.2d at 782; see State v. Cooley, 608 N.W.2d 9, 15 (Iowa 2000) (“A searching or formal inquiry is among the procedures required before an accused’s waiver of counsel may be accepted.”). Moreover, it is up to the State to prove that a valid waiver exists. Rater, 568 N.W.2d at 660 (“The State has the burden to prove the waiver was valid.”).

The surrounding circumstances will determine the sufficiency of a colloquy. See Stephenson, 608 N.W.2d at 782 (“The degree of inquiry necessary to assure a valid waiver varies with the nature of the offense and the ability of the accused to understand the process.”); Cooley, 608 N.W.2d at 15 (noting “ ‘a judge must investigate as long and as thoroughly as the circumstances of the case before him demand’ ” (citation omitted)). However, a “ ‘mere routine inquiry’ ”is insufficient, and a “ ‘penetrating and comprehensive examination’ ” is necessary. Cooley, 608 N.W.2d at 15 (citation omitted). A sufficient colloquy will necessarily look into

“the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.”

Id. (quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948)). In addition, the defendant must be “admonished as to the usefulness of an attorney at that particular proceeding, and made cognizant of the danger in continuing without counsel.” Id. In previous cases we have even suggested that district court judges use the model inquiries found in our state and federal bench books to obtain a proper waiver of counsel. See State v. Martin, 608 N.W.2d 445, 450 (Iowa 2000) (recommending the model inquiry found in Iowa Bench Book, 5-37 to 5-41 (1999)); State v. Spencer, 519 N.W.2d 357, 360 n. 1 (Iowa 1994) (recommending the model inquiry found in 1 Bench Book for United States District Judges 1.02-2 (3d ed.1986)); see also Spencer, 941 F.Supp. at 843-44 (discussing and quoting the Bench Book for United States District Judges).

In this case the trial court did not conduct the all important colloquy to make sure Hannan properly waived his right to counsel. The State argues the judge’s brief explanation of trial procedures and answers to Hannan’s questions during the hearing on Faber’s motion to withdraw were sufficient to comport with our constitutional requirements. We disagree. First, as Hannan correctly points out, these explanations and answers occurred after the judge essentially forced Hannan to represent himself. Second, even if there was a cognizable colloquy, it fell far short of discussing the necessary constitutional concerns. Nowhere did the court address the dangers of self-representation or make any kind of finding that his waiver was voluntary.

It is perhaps axiomatic to say that at all stages in these proceedings Hannan’s counsel had an essential duty to protect his constitutional rights. While we presume his counsel acted competently and the representation fell “within the wide range of reasonable, professional assistance,” under these facts Hannan met his burden to prove by a preponderance of the evidence that his counsel failed to perform an essential duty. State v. Dible, 538 N.W.2d 267, 272 (Iowa 1995). Our laws regarding a defendant’s right to counsel were well established and recently emphasized at the time of the violation. See Gideon, 372 U.S. at 335, 83 S.Ct. at 792, 9 L.Ed.2d at 799 (making the Sixth Amendment right to counsel binding upon the states); Rater, 568 N.W.2d at 658 (emphasizing the Sixth Amendment constitutional requirements months before Hannan’s trial). Such circumstances should have instructed competent counsel to object to Hannan’s deficient waiver and vindicate his rights. Cf. State v. Hepperle, 530 N.W.2d 735, 740 (Iowa 1995) (finding counsel did not fail to perform an essential duty when the law at the time was less than clear). Hannan’s initial PCR application indicated his belief that the waiver was insufficient. Moreover, the waiver was clearly defective. Counsel should have raised this argument for Hannan. Hannan has proved that his counsel failed to perform an essential duty.

Hannan has also met his burden of proving prejudice. Whether a defendant “was actually prejudiced by the court’s failure to conduct a sufficient inquiry or by its decision to require him to proceed pro se is immaterial. Harmless error analysis is not applicable to Sixth Amendment right to self-representation questions.” Rater, 568 N.W.2d at 661; Cooley, 608 N.W.2d at 18 (“The denial of an attorney during the critical stages of a trial can never be construed as harmless error.”). Thus, when a violation of a defendant’s right to counsel occurs, prejudice is presumed. See McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122, 133 n. 8 (1984) (“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis.”).

As a result, we hold Hannan’s Sixth Amendment right to counsel was violated, and he has proven his claim of ineffective assistance of counsel. Therefore, Hannan must be given a new trial. See Stephenson, 608 N.W.2d at 783 (“[T]he failure of the trial court to conduct an adequate inquiry ... results in reversible error.”).

VI. Conclusion.

District court judges are often called upon to navigate the “thin line” presented in cases such as this, where they must refrain from “improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.” Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir.1995); see Spencer, 941 F.Supp. at 834, 840 n. 7, 844 n. 9 (discussing this predicament). We are sympathetic to judges in this perilous position. See Spencer, 941 F.Supp. at 844 n. 9. We emphasize, however, that a motion for substitute counsel should not be granted without cause and that proper rulings on such motions can help to avoid violations of constitutional rights. See Martin, 608 N.W.2d at 449 (“A defendant must show sufficient cause to justify the appointment of substitute counsel. Sufficient cause includes ‘a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.’ In addition, the court must balance ‘the defendant’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice.’ ” (Citations omitted.)). But we also recognize the proper granting or denying of such a motion may inevitably lead to the same result: the defendant proceeding pro se. Compare Martin, 608 N.W.2d at 448 (trial court rejected defendant’s request for substitute counsel and continuance and defendant proceeded pro se with stand-by counsel), ivith Rater, 568 N.W.2d at 656-57 (trial court granted four substitutions of counsel and multiple continuances and defendant proceeded pro se with stand-by counsel).

Thus, in the end, the trial court must ensure a defendant has made a voluntary, knowing, and intelligent waiver of his right to counsel before he or she proceeds pro se, even if the court appoints stand-by counsel. This should always be done with a comprehensive colloquy between the court and the defendant. As we have said before, it is an “absolute duty” upon the trial court. See Stephenson, 608 N.W.2d at 782.

We conclude Hannan’s Sixth Amendment rights were violated. His counsel’s failure to vindicate those rights resulted in ineffective assistance of counsel. Hannan must be given a new trial. We recognize our decision continues the already long and laborious proceedings in this case. The result also postpones the finality expected by the State and the public. Constitutional violations, however, are not subject to these concerns. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for new trial.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.

      . The State does not challenge preservation of error based on the failure of Hannan to submit the waiver of counsel issue to the district court at the postconviction relief hearing as a ground for his claim of ineffective assistance of counsel. The issue was raised for the first time on PCR appeal, but we took a pragmatic approach by permitting the original trial record to be considered as part of this appeal. This allows us to consider the issue raised on appeal instead of requiring Hannan to file a new postconviction relief action based on ineffective assistance of postconviction relief counsel for failure to raise the issue in the original postconviction relief proceeding.

      . Moreover, even if we had to, we think Han-nan has the better argument. Our only concern is whether Hannan preserved error in this PCR proceeding, not whether he preserved error on direct appeal. Thus, if section 814.7 is a statute controlling an appeal as the State suggests it is, then as applied to this action it can only be a statute controlling Hannan’s instant appeal — that is, Hannan’s appeal from the PCR court’s decision. The PCR court's judgment was entered after the effective date of the statute, and therefore even under the State’s position Hannan is able to bring his claim. At the time Hannan appealed the PCR court’s decision section 814.7 was in effect and allowed Hannan to bring his claim of ineffective assistance of counsel without raising it on direct appeal.

      . Hannan has not alleged any reason for treating the right to counsel under our state and federal constitutions differently, and thus we address the merits of Hannan's constitutional argument without differentiating between the two. See State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006) (addressing questions concerning our state and federal constitution's right to counsel under a federal analysis).

      . Whether Hannan properly invoked his right to self-representation is not before us, although its analysis closely parallels that of whether Hannan properly waived his right to counsel. See Spencer v. Ault, 941 F.Supp. 832, 851 (N.D.Iowa 1996) (calling the right to self-representation a "sister right” under the Sixth Amendment). Determining whether a defendant invoked his or her right to self-representation necessarily requires a determination of whether the defendant waived his or her right to counsel, but it also requires additional determinations not present in a waiver-of-counsel inquiry. Compare Spencer, 941 F.Supp. at 834 (determining whether defendant invoked his right to self-representation by analyzing whether defendant "clearly and unequivocally asserted his [or her] right to self-representation” (which includes an analysis of whether the defendant knowingly, voluntarily, and intelligently waived his or her right to counsel), and whether the court “appointed only standby counsel to assist the [defendant] with his [or her] defense,” and "whether the [defendant] then waived his [or her] right to self-representation by acquiescing in the actions of his standby counsel”), with State v. Stephenson, 608 N.W.2d 778, 782 (Iowa 2000) (determining whether the defendant waived his right to counsel by deciding whether "the defendant’s election [wa]s voluntary, knowing, and intelligent”).


author: GILDEA, Justice. ANDERSON, PAUL H., PAGE, Justice MEYER, J.

text:
    STATE of Minnesota, Respondent, v. Scott Evan DAVIS, Appellant.
    No. A05-857.
    Supreme Court of Minnesota.
    May 24, 2007.

      Derek A. Patrin, Meaney & Patrin, P.A., Hopkins, MN, for Appellant.
    Mike Hatch, Minnesota Attorney General, State of Minnesota, St. Paul, MN, James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Hastings, MN, for Respondent.
   OPINION

GILDEA, Justice.

Based on evidence the police discovered during a search of his apartment, appellant Scott Evan Davis was found guilty of possession of controlled substances and drug paraphernalia. Davis contends that the search violated his rights under the Minnesota Constitution. He argues that the evidence seized from his apartment should have been suppressed because the search warrant was supported in part by a dog sniff conducted outside his apartment door, and the police did not have either probable cause or reasonable suspicion to conduct the dog sniff. The district court denied Davis’s motion to suppress the evidence, and the court of appeals affirmed. We granted Davis’s petition for review and now affirm.

On August 27, 2004, an officer with the Burnsville Police Department obtained a search warrant for Davis’s apartment. The officer included the following facts in the search warrant application: (1) an apartment complex employee told the officer that she or he had received information from maintenance employees at the complex that they believed they had observed marijuana-growing lights inside Davis’s apartment and that Davis would not let them come into his apartment to investigate or repair a possible water leak; (2) a dog, certified by the United States Police K-9 Association to detect the smell of drugs, alerted to the presence of a narcotic odor in the first floor hallway of the apartment building at the threshold of Davis’s apartment door; and (3) a background check revealed that Davis had a history of criminal activity. The district court issued the warrant, and police officers executed the warrant on August 31, 2004. The officers gained access to Davis’s apartment with a key provided by apartment-complex management. In Davis’s apartment, the officers discovered various items of contraband.

Davis was charged with two counts of controlled substance crimes in the fifth degree and one count of possession of drug paraphernalia. On February 25, 2005, Davis filed a motion to suppress the evidence seized from his apartment and to dismiss the charges against him, arguing that the search violated his rights under the Fourth Amendment and the Minnesota Constitution. No testimony was offered in connection with Davis’s motion. The parties agreed instead to submit the question to the court based on the application for search warrant and supporting affidavit, the police report prepared following execution of the search warrant, and legal mem-oranda. Following oral argument, the district court denied Davis’s motion. The court concluded that the police needed reasonable, articulable suspicion to use the narcotics-detection dog and that the standard was met based on the information provided to police by the apartment complex employees. The court of appeals affirmed.

I.

The Minnesota Constitution prohibits “unreasonable searches and seizures.” Minn. Const, art. I, § 10. The first step in an analysis under section 10 usually involves a determination of whether the police activity at issue constitutes a search or a seizure for purposes of the Minnesota Constitution. State v. Carter, 697 N.W.2d 199, 210-11 (Minn.2005). That analysis is unnecessary in this case. In Carter we decided that the use of a narcotics-detection dog outside a storage unit is a search for purposes of the Minnesota Constitution. Carter, 697 N.W.2d at 211. The state has not asked us to reconsider our analysis in Carter and it has not argued that the expectation of privacy at issue in this case requires a different conclusion. Indeed, the state does not even argue that the dog sniff in this case was not a search. We therefore turn to the next step in the analysis, which requires us to examine the level of suspicion (probable cause or reasonable, articulable suspicion) necessary to sustain as constitutional the use of a narcotics-deteetion dog in the common hallway of an apartment building. See id. The district court and the court of appeals concluded that a reasonable, articulable suspicion was necessary and that probable cause was not required in this circumstance. We review this constitutional question de novo. See State v. Burbach, 706 N.W.2d 484, 487 (Minn.2005).

We have addressed the level of suspicion necessary to sustain the use of a narcotics-detection dog in two recent cases. See Carter, 697 N.W.2d at 211-12; State v. Wiegand, 645 N.W.2d 125, 133-35 (Minn.2002). Because the parties’ arguments are premised on the holdings of Carter and Wiegand, we turn first to a discussion of these cases.

In Wiegand, the police walked a narcotics-detection dog around the exterior of a motor vehicle that had been stopped because of a burned-out headlight. 645 N.W.2d at 128-29. Because there was “some expectation of privacy in an automobile,” and a dog sniff intrudes upon this privacy interest “to some degree,” we held that the police “cannot conduct a narcotics-detection dog sniff around a motor vehicle stopped for a routine equipment violation without some level of suspicion of illegal activity.” Id. at 134. We concluded that principles from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), were appropriately applied to the context of a motor vehicle stop, and we said that the Terry principles authorized the balancing of the level of intrusiveness of the use of the dog “against the importance of the governmental interest at stake.” Wiegand, 645 N.W.2d at 133-34. Based on this balancing, we adopted the reasonable, articulable suspicion standard as necessary to sustain the use of the dog sniff in Wiegand. Id. at 137.

We also employed the reasonable, artic-ulable suspicion standard in Carter. 697 N.W.2d at 211. That case involved the use of a narcotics-detection dog around the exterior of a private storage unit located within a fenced self-storage facility. Id. at 202-03. We concluded that the dog sniff was a search for purposes of the Minnesota Constitution, even though we had concluded it was not a search for purposes of the United States Constitution. Carter, 697 N.W.2d at 209, 211. We reached this conclusion because we found that the expectation of privacy at issue was greater under our constitution than it had been determined to be under the Fourth Amendment. Id. at 210. Having concluded that the use of the dog was a search under the Minnesota Constitution, we then examined what level of suspicion was necessary to sustain the search under our constitution. Id. at 211-12. We concluded that the reasonable, articulable suspicion standard struck the appropriate “middle ground” between the individual’s privacy interest and the government’s interest in using effective law enforcement tools. Id. (internal quotation marks omitted).

On the basis of Wiegand and Carter, Davis asks us to find that the Minnesota Constitution requires probable cause to sustain the use of the narcotics-detection dog in the hallway outside his apartment. Davis contends that the dog sniff was a search “inside” his private residence and that his expectation of privacy in his residence is greater than the expectation of privacy found to exist in either Wiegand or Carter. Accordingly, Davis contends the dog sniff in this case must be supported by probable cause to survive a constitutional challenge.

The Supreme Court has cautioned against using a “mechanical interpretation” of the prohibition against unreasonable searches. Kyllo v. United States, 533 U.S. 27, 35, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). We have also recognized that what constitutes an unreasonable search must be assessed based on the facts of each particular case. State v. Olson, 271 Minn. 50, 57, 135 N.W.2d 181, 186 (1965). As part of this particularized inquiry, Minnesota courts have balanced “the nature and significance of the intrusion on the individual’s privacy interests * * * against the gravity of the public concerns it serves and the degree to which the conduct at issue advances the public interest.” State v. Larsen, 650 N.W.2d 144, 148, 150 (Minn. 2002) (ruling that the warrantless search of a fish house that was not supported by probable cause was unreasonable). We turn now to that individualized analysis.

II.

The Minnesota Constitution protects citizens against unreasonable government intrusions upon areas where there is a legitimate expectation of privacy. See Carter, 697 N.W.2d at 214. Davis has the burden of showing that the dog sniff intruded upon an area in which he had a legitimate expectation of privacy. See State v. Gail, 713 N.W.2d 851, 859-60 (Minn.2006) (concluding that the defendant “has the burden of establishing that his rights under Article I, Section 10 of the Minnesota Constitution were violated”). There is no question that a person has a legitimate expectation of privacy inside her or his residence. See Carter, 697 N.W.2d at 208 (noting that a person’s expectations of privacy in a home “are most heightened”). The issue in this case is whether the level of intrusion upon Davis’s privacy interest — through the police walking a narcotics-detection dog outside his residence in the common hallway — is sufficiently great that it can be said to render the search “unreasonable” under the Minnesota Constitution unless it is supported by probable cause.

If the police enter a place where a person has a legitimate expectation of privacy there is of course a great intrusion upon that privacy interest. But in this case the police did not enter the area in which Davis has the greatest expectation of privacy, his residence. Rather, the police were outside his residence in the common hallway. Davis presented no evidence in this case indicating that the police were not lawfully in the hallway or in the apartment building itself. See Carter, 697 N.W.2d at 212 (noting that police need to be lawfully present for a dog sniff to be constitutional). And Davis presented no evidence that he controlled access to the hallway, or that access to the hallway or to the apartment building itself was limited via a locked door or some other mechanism. In short, Davis has not shown that he had an expectation of privacy in the common hallway in addition to that expectation of privacy he had inside his residence.

Rather than argue that he has a legitimate expectation of privacy in the hallway, Davis contends that his privacy interest inside his residence was intruded upon because the police conducted the dog sniff to detect something inside his residence. Davis relies on Kyllo, where the Supreme Court concluded that police use of a thermal-imaging device outside a home, but directed into the home, was a search for purposes of the Fourth Amendment. 533 U.S. at 29-30, 34-35, 121 S.Ct. 2038. Davis argues that just as the investigative tool in Kyllo was aimed at gathering information (heat-emitting lamps) about the inside of a residence, so too was the use of the narcotics-detection dog. Consistent with the rationale of Kyllo, Davis contends that the focus of our examination of the privacy interest should be on the inside of his residence.

As we noted in Carter, the homeowner’s interest in the inside of his residence was intruded upon in Kyllo because the device at issue there was “capable of detecting lawful as well as unlawful activity” going on inside the residence. Carter, 697 N.W.2d at 208 (discussing Illinois v. Caballes, 543 U.S. 405, 409-10, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), as having “clarified that the relevant inquiry is whether the investigative device used is capable of detecting lawful as well as unlawful activity inside a place that otherwise carries a legitimate expectation of privacy”). By contrast, Davis makes no claim that the dog used outside his apartment was capable of detecting more than simply the odor of illegal narcotics emanating from the inside of his residence. As the Supreme Court noted in United States v. Place, a dog sniff “does not expose noncontraband items that otherwise would remain hidden from public view” but “discloses only the presence or absence of narcotics.” 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (noting that the “limited disclosure” of a dog sniff “ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods”). Indeed, the Court has described a dog sniff as sui generis because there is “no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.” Id.; see also Wiegand, 645 N.W.2d at 134 (noting that “a dog trained only in narcotics detection would alert only to narcotics and would not alert to lawful items or even to a weapon or stolen goods”). As noted in Carter, the only intrusion on the privacy interest that occurs through use of the dog occurs because the dog can sniff what the public cannot. See Carter, 697 N.W.2d at 211; see also Wiegand, 645 N.W.2d at 134. This intrusion, however, is minimal.

Davis argues that the level of intrusion must be greater in this case than that recognized in Carter because here the police walked the dog down the hallway of an apartment building, not outside a storage unit. But the record contains no evidence justifying a conclusion that the intrusion in this case is any greater than the intrusion at issue in Carter.

In Carter, we noted that the defendant’s storage unit was “large enough to contain a significant number of personal items and even to conduct some personal activities.” 697 N.W.2d at 210-11. We concluded that although a person has an expectation of privacy in a storage unit, “a renter of [a storage] unit must expect that other people will lawfully be in the area outside the unit and will be able to smell plain odors emanating from the unit.” Id. at 211. The same can be said of an apartment hallway. A tenant must expect that other people will lawfully be in the hallway and be able to smell odors emanating into the public space. Just as in Carter, the police walked the dog in an area that on this record we must treat as accessible to the public. We conclude that while Davis’s expectation of privacy inside his apartment may be greater than the expectation of privacy inside a storage unit, the level of intrusion upon that interest cannot be characterized as any greater than the minimal intrusion we found to exist in Carter.

Because the intrusion upon Davis’s expectation of privacy was minimal, it is appropriate to consider, as we did in Carter, the government’s interest in order to ascertain the level of suspicion necessary to sustain the use of a dog sniff. 697 N.W.2d at 211-12. Our reliance on the government’s interest is supported by Place. 462 U.S. at 703,103 S.Ct. 2637. In Place, the Court found that the government’s interest was appropriately considered within the context of the seizure of luggage which was then subjected to a dog sniff. Id. The Court recognized that where the “nature and quality” of the government action is “minimally intrusive” upon the individual’s interests, the interests of effective law enforcement can support finding that a seizure is reasonable under the Fourth Amendment even though it was not premised on probable cause. See Place, 462 U.S. at 703, 103 S.Ct. 2637.

Other states have also noted that it is appropriate to examine the government’s interest when examining the reasonableness of the use of narcotics-detection dogs under their state constitutions. See People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054, 1058 (1990) (noting that the use of narcotics-detection dogs provides “significant utility to law enforcement authorities”); Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74, 79 (1987) (noting that “much of the law enforcement utility of such dogs would be lost if full blown warrant procedures were required before a canine sniff could be used”). We likewise believe that it is appropriate to consider the government interest in this case of minimal intrusion in determining the level of suspicion necessary to sustain the warrantless use of a narcotics-detection dog under the Minnesota Constitution.

We recognized in Carter that “the government has a significant interest” in using narcotics-detection dogs in combating drug crimes and that the “public’s interest in effective criminal investigations” was served through the use of this investigative tool. See 697 N.W.2d at 211-12. Davis offers no argument that the government interest at stake here is not just as significant.

We held in Carter that reasonable, artic-ulable suspicion struck the appropriate balance between the privacy right of individuals and the government (and society’s) interest in effective law enforcement. 697 N.W.2d at 211-12. We conclude that the same result is warranted here. When we balance the minimal intrusion on Davis’s privacy interests inside his residence against the governmental interest in the use of narcotics-detection dogs as an investigative tool to combat drug crime, we conclude that the police needed a reasonable, articulable suspicion to walk a narcotics-detection dog down the common hallway outside Davis’s apartment. Use of the reasonable suspicion standard is consistent with this court’s goals of preserving the “law enforcement utility” of narcotics-detection dogs and ensuring that the police are not allowed to use narcotics-detection dogs “at random and without reason.” Id. at 211 (internal quotation marks omitted).

Based on the record before us, we cannot conclude that the balance we struck in Carter tips differently in this case. Accordingly, we hold that the police needed only reasonable, articulable suspicion that Davis was engaged in illegal drug activity, rather than probable cause, to conduct the dog sniff in the common hallway outside Davis’s apartment door.

III.

Having concluded that reasonable suspicion is the appropriate standard in this case, we next examine whether the police had reasonable, articulable suspicion before using the narcotics-detection dog outside Davis’s apartment. The district court found that the police had a reasonable, articulable suspicion. We review the court’s determination de novo. See State v. Britton, 604 N.W.2d 84, 87 (Minn.2000).

Reasonable suspicion must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. 1868. The requisite showing is “not high.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). We have said that reasonable suspicion requires “something more than an unarticulated hunch, [and] that the officer must be able to point to something that objectively supports the suspicion at issue.” State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000). We consider the totality of the circumstances when determining whether reasonable suspicion exists, and seemingly innocent factors may weigh into the analysis. State v. Martinson, 581 N.W.2d 846, 852 (Minn.1998).

The state relies on two pieces of information from a private citizen informant in order to support a finding that the police had a reasonable, articulable suspicion in this case. First, the informant told the police that maintenance employees believed they had observed “marijuana-growing lights” that “were activated while they were inside” Davis’s apartment. Second, the informant told police that there was a water leak at Davis’s apartment but that Davis would not “let the maintenance employees come inside of his apartment to repair or investigate the possible water leak.”

We presume that tips from private citizen informants are reliable. Marben v. State Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980); see also State v. Jones, 678 N.W.2d 1, 11 (Minn.2004). This is particularly the case when informants give information about their identity so that the police can locate them if necessary. See City of Minnetonka v. Shepherd, 420 N.W.2d 887, 888, 890 (Minn.1988) (holding that a tip from an informant identifying himself as “a station attendant at the Q Petroleum Station in Minnetonka” that he had “observed an intoxicated driver leave the gas station” in a vehicle he identified by color and license plate was sufficient to give police reasonable suspicion that the driver was intoxicated); see also State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (“[A]n informant’s actual name need not be known so long as her identity is readily discoverable.” (internal quotation marks omitted)); cf. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (noting that tips from informants whose reputation can be assessed and who can be held responsible if the allegations are fabricated are more reliable than tips from an anonymous informant). Just as in Shepherd, the informant here reported to the police where she or he worked (at the apartment complex) and gave the police specific information. In particular, the police were told that maintenance employees “believed they had observed marijuana-growing lights” that were “activated” in Davis’s apartment. Davis stipulated to the contents of the search warrant application, and did not contest the characterization of the lights as “marijuana-growing lights.” Also, Davis would not permit the employees to come inside his apartment to repair or investigate a water leak.

The two facts reported by the apartment complex employee gave police something more than an unarticulated hunch. It was reasonable for police to infer from these facts that Davis might be growing marijuana in his apartment. Cf. United States v. Williams, 3 F.3d 69, 70-71 (3d Cir.1993) (finding probable cause to search hotel room where a private-citizen “anonymous” informant who worked as a housekeeper at a hotel told police that she had seen small plastic baggies and cigarette rolling papers in a hotel room, and she was refused admittance to clean the room until the defendant had removed a box of unknown content). We hold that the police had a reasonable suspicion that there was illegal drug activity inside Davis’s apartment.

Our decision in Carter supports our conclusion. In CaHer, the manager of the storage unit facility reported only that the defendant rented two units at the facility and sometimes visited several times a day. 697 N.W.2d at 203. There was no indication in Carter that management believed the defendant was using drugs, or doing anything illegal. By contrast, it is reasonable to infer from the apartment complex employees’ description of the lights that they suspected that Davis was growing marijuana, as the district court found in this case.

Because the police had a reasonable suspicion that Davis had illegal drugs inside his apartment, Davis’s rights under the Minnesota Constitution were not violated when the police conducted a dog sniff outside his apartment door.

Affirmed.

ANDERSON, PAUL H.,

Justice (concurring).

I agree with the result reached by the majority, but I write separately to highlight my underlying concerns and reservations with respect to the extent to which dogs are used as an investigative tool.

As the majority opinion demonstrates, this case is all about the dog sniff and Davis’s expectation of privacy inside his residence. The majority correctly notes that Davis has not demonstrated, and indeed makes no claim, that the dog used outside his apartment would alert to anything other than the odor of illegal narcotics emanating from the inside of his residence. In essence, all we have before us is that the dog used in this search was only capable of disclosing the presence or absence of illegal narcotics based upon odors in the hall that emanated from Davis’s residence. Therefore, I find nothing improper about this search.

But, if faced with evidence that a dog can and will alert to legal activity in a residence based on odors emanating from that residence, I might well reach a different result. See Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L,Ed.2d 94 (2001) (holding that use of thermal-imaging devices to gather information about heat in a home’s interior is not removed from the scope of the Fourth Amendment and does constitute a search). Further, at this point, I am not prepared to adopt, either explicitly or implicitly, the Supreme Court’s conclusion in United States v. Place that a dog sniff is “sui generis” because this investigative procedure is so limited that the only information obtained as a direct result of a dog sniff will be that of illegal activity. 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). I will wait to decide this issue until we are presented with a case that includes a more comprehensive record on the reliability of a particular dog sniff.

PAGE, Justice

(dissenting).

I respectfully dissent. The court concludes that only a reasonable articulable suspicion was necessary before police used a canine to detect the odor of narcotics coming from Davis’s apartment. Because I conclude that the dog sniff was a search of Davis’s apartment, not the hallway outside of the apartment, I would require that police have probable cause, rather than merely reasonable suspicion, to conduct the dog sniff. I would therefore exclude the results of the dog sniff as a basis for the warrant used to enter Davis’s apartment. Without the results of the dog sniff, police lacked probable cause to obtain the warrant to enter Davis’s apartment. I would therefore reverse the court of appeals and remand to the district court with instructions to suppress the evidence discovered when police entered the apartment.

Davis argues that the use of the dog constituted a search. I agree. A search occurs whenever government agents intrude upon an area where a person has a reasonable expectation of privacy. California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). Whether the dog sniff was a search therefore requires us to determine what it was that the dog sniffed: if it was an area in which Davis had a reasonable expectation of privacy, then it was indeed a search.

Davis argues that the dog sniff was a search of the inside of his apartment. In contrast, the state characterizes the dog as sniffing merely the “apartment hallway” or “the door of the apartment unit” or “the threshold of [Davis’s] apartment,” and emphasizes that the dog “is not smelling inside the apartment itself.” The Supreme Court, first in Katz, and again in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), has made it clear that the definition of a “search” does not depend on such a “mechanical interpretation of the Fourth Amendment.” Kyllo, 533 U.S. at 35, 121 S.Ct. 2038. In Katz, the government argued that the electronic listening device it had placed on the outside of a public telephone booth did not constitute a warrantless search because it “involved no physical penetration of the telephone booth.” 389 U.S. at 352, 88 S.Ct. 507. The Court dismissed the government’s argument with the observation that “the reach of [the Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” Id. at 353, 88 S.Ct. 507. Similarly, in Kyllo the Court dismissed the government’s argument that its use of thermal imaging did not constitute a search because it detected “only heat radiating from the external surface of the house.” 533 U.S. at 35, 121 S.Ct. 2038 (internal quotation marks omitted). To the contrary, the Court noted, the thermal imager used in Kyllo “reveals the relative heat of various rooms in the house,” and “there is no basis for saying it is not information regarding the interior of the home.” Id. at 35 n. 2, 121 S.Ct. 2038. And, the Court announced that the definition of a “search” under the Fourth Amendment therefore included “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’ ” at least where the technology in question is not in general public use. Kyllo, 533 U.S. at 34, 121 S.Ct. 2038.

Applying this definition makes clear that the use of the dog in this case was not only a search, it was a search of the interior of Davis’s apartment. Although the state emphasizes that the dog was merely in the apartment hallway, police were not searching for narcotics in the hallway, and had they found any (tucked beneath the carpet, for example), it would have been nothing more than a happy accident. Rather, the police were there to search for evidence of drugs in the apartments themselves, and particularly in Davis’s apartment. And, because there was no odor of narcotics emanating from Davis’s apartment that officers could themselves detect, they were doing so using “sense-enhancing technology * * * not in general public use,” namely, a specially trained narcotics-sniffing dog. Kyllo, 533 U.S. at 34, 121 S.Ct. 2038. We should acknowledge that fact here, just as we (and I) should have acknowledged in Carter that police were using a dog sniff to search for evidence of drugs in the storage unit itself. State v. Carter, 697 N.W.2d 199, 208-09 (Minn.2005) (describing the dog sniff as “outside of a storage unit”); id. at 212 (Page, J., concurring specially (describing the dog sniff as “outside a storage unit”)).

Because I conclude that this was a search for evidence of narcotics inside Davis’s residence, I also conclude, consistent with the positions I took in Wiegand and in Carter, that probable cause was required. State v. Wiegand, 645 N.W.2d 125, 139 (Minn.2002) (Page, J., concurring and concurring specially); Carter, 697 N.W.2d at 212 (Page, J., concurring specially). The Fourth Amendment and Article I, Section 10, of the Minnesota Constitution provide that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. 4; Minn. Const, art. I § 10. This was not a search of a car during a routine traffic stop, or luggage given to airport baggage handlers. It was a search of a private residence, in which the resident rightfully has the highest expectation of privacy. As the Supreme Court observed in Kyllo,

the Fourth Amendment draws “a firm line at the entrance to the house.” That line, we think, must be not only firm but also bright- — -which requires clear specification of those methods of surveillance that require a warrant. * * * Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

533 U.S. at 40, 121 S.Ct. 2038 (citation omitted).

The court agrees that the use of the dog constituted a search, but sidesteps the issue of what the dog was searching by describing the search in innocuous terms: “the use of the narcotics-detection dog in the common hallway of an apartment building.” The court having agreed that the use of the dog constituted a warrant-less search, one might reasonably expect the court to then ask whether this search fell within one of the recognized exceptions to the requirement that a search be conducted under the authority of a warrant supported by probable cause, such as a search incident to arrest, or “hot pursuit,” or even consent. But instead the court applies a balancing test to determine whether the use of the dog was an unreasonable intrusion into Davis’s privacy. I believe the court’s application of a balancing test in these circumstances is also error.

The balancing test the court applies — a comparison between Davis’s privacy expectations and the degree of intrusiveness of the search — has its roots in the Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Court recognized “a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id. at 27, 88 S.Ct. 1868. The Court did so by weighing “the nature and extent of the governmental interests involved,” id. at 22, 88 S.Ct. 1868, against “the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking.” Id. at 24, 88 S.Ct. 1868.

But, and this is the critical point, in Teiry the Supreme Court applied this balancing test only after acknowledging that, under the circumstances present in Terry, the Warrant Clause of the Fourth Amendment did not apply. The Court emphasized:

If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether “probable cause” existed to justify the search and seizure which took place. However, that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances. But we deal here with an entire rubric of police conduct— necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.

Terry, 392 U.S. at 20, 88 S.Ct. 1868 (citations omitted). That is, the Terry balancing test is to be applied only in a circumstance that “historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” Id.

Terry, in turn, provided the basis for the Supreme Court’s conclusion in United States v. Place that authorities could briefly seize a traveler’s luggage, based only upon a reasonable, articulable suspicion of wrongdoing. 462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The Court’s opinion in Place does not explicitly discuss why the detention of Place’s luggage was analyzed under the general reasonableness clause of the Fourth Amendment, rather than the Warrant Clause; indeed, Justice William Brennan’s concurrence questioned the use of the balancing test at all. Id. at 718, 103 S.Ct. 2637 (Brennan, J., concurring). But one could imagine that a search of a traveler’s luggage “as a practical matter could not be” subjected to the warrant requirement, Terry, 392 U.S. at 20, 88 S.Ct. 1868, particularly as world events have unfolded since Place was decided.

We, in turn, applied the Terry balancing test when we concluded in Carter that police needed nothing more than a reasonable, articulable suspicion of wrongdoing in order to conduct a search by dog sniff of the outside of a storage unit. 697 N.W.2d at 211. But, unfortunately, we failed to consider the threshold question required before applying the Terry balancing test, namely, whether the circumstances presented in Carter required “necessarily swift” actions, “which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” It is clear they did not. Carter was a dog-sniff search of a rented storage unit, which police had kept under surveillance for some four weeks. 697 N.W.2d at 203. Nothing precluded the police from obtaining a warrant to use a dog to search Carter’s rented storage unit for narcotics except a lack of probable cause.

In applying the Terry balancing test in Carter, we also followed the lead of the Alaska Court of Appeals and the Pennsylvania Supreme Court, which have adopted the standard of reasonable, articulable suspicion to dog sniffs. 697 N.W.2d at 211 (citing McGahan v. State, 807 P.2d 506, 510-11 (Alaska Ct.App.1991), and Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74, 79 (1987)). The Alaska and Pennsylvania courts both concluded, as we did, that the dog sniff constituted a search. McGahan, 807 P.2d at 509; Johnston, 530 A.2d at 79 (dog sniff constituted a search under state law). And each employed the Terry balancing test to support the use of the dog sniff in the absence of a warrant or probable cause. McGahan, 807 P.2d at 510; Johnston, 530 A.2d at 79-80. The Pennsylvania court justified its use of the Terry balancing test on the following considerations:

[A] canine sniff-search is inherently less intrusive upon an individuars privacy than other searches such as wiretapping or rummaging through one’s luggage; it is unlikely to intrude except marginally upon innocent persons; and an individual’s interest in being free from police harassment, annoyance, inconvenience and humiliation is reasonably certain of protection if police must have a reason before they may, in the circumstances of this case, utilize a narcotics detection dog.

Johnston, 530 A.2d at 79-80. Similarly, the Alaska court cites “minimally intrusive” searches and seizures as “an exception to the warrant requirement.” McGahan, 807 P.2d at 510 (citing Hayes v. State, 785 P.2d 33, 37 (Alaska Ct.App.1990)).

But the Supreme Court has refused to recognize “minimally intrusive” searches, at least in criminal cases, as an exception to the warrant requirement. In Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the Court held that moving stereo equipment to note its serial numbers constituted a “search” that, in the absence of a warrant, was illegal. Id. at 324, 326, 107 S.Ct. 1149. As the Court observed, “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Id. at 325, 107 S.Ct. 1149. And, as the Court observed in Katz, in the absence of the procedural safeguards inherent in the warrant application process, “this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.” 389 U.S. at 356-57, 88 S.Ct. 507.

Moreover, the Supreme Court’s discussion of dog sniffs in Place raises serious doubt that the Court would approve of our reasonable, articulable suspicion standard for dog sniffs of a private residence. After all, the Court’s observations about dog sniffs in Place were predicated on the Court’s view that a dog sniff is not a search at all:

The purpose for which respondent’s luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent’s luggage for the purpose of subjecting it to the sniff test — no matter how brief — could not be justified on less than probable cause.
⅜ ⅝ ⅜ ⅝
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here— exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.

462 U.S. at 706-07, 103 S.Ct. 2637 (citations omitted). See also City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (“The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search.”).

Nor should we continue to blithely assume that dog sniffs are “minimally intrusive” in the sense we described in Carter: an investigative technique that discloses only the presence or absence of narcotics. 697 N.W.2d at 207. As Justice David Souter observed in his dissent in Illinois v. Caballes, the “infallible dog” is “a creature of legal fiction.” 543 U.S. 405, 411, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (Souter, J., dissenting). In reality, even a “reliable” dog may alert when no narcotics are present (a false positive) between 7% and 38% of the time. See United States v. Limares, 269 F.3d 794, 797-98 (7th Cir.2001).

As a result of all of this, our jurisprudence in this area has become what Justice Harry Blackmun warned of in his dissent in Place: “an emerging tendency on the part of the Court to convert the Terry decision into a general statement that the Fourth Amendment requires only that any seizure be reasonable.” Place, 462 U.S. at 721, 103 S.Ct. 2637 (Blackmun, J., dissenting). To the contrary, Justice Blackmun continued:

While the Fourth Amendment speaks in terms of freedom from unreasonable seizures, the Amendment does not leave the reasonableness of most seizures to the judgment of courts or government officers: the Framers of the Amendment balanced the interests involved and decided that a seizure is reasonable only if supported by a judicial warrant based on probable cause.

Id. at 722, 103 S.Ct. 2637. We were wrong to apply the Terry balancing test to the search in Carter, and the court is wrong to apply a balancing test in this case as well.

This case marks a significant departure from our constitutional jurisprudence because it is the first time the court has authorized the search of a private residence based on anything less than probable cause in the absence of exigent circumstances. It is a departure that takes us down a road that erodes Fourth Amendment protections in one’s home. That is a road I am unwilling to go down.

I respectfully dissent.

MEYER, J.

(dissenting).

I join in the dissent of Justice Page.

      . The application for the search warrant indicates that the apartment-complex employee wished to remain anonymous for her or his personal safety.

      . There is no indication that apartment complex employees received complaints of odors emanating from Davis's apartment. The court of appeals was apparently mistaken in this regard. State v. Davis, 711 N.W.2d 841, 843 (Minn.App.2006).

      .The record does not include any information about how the police were able to enter the apartment building to conduct the dog sniff (i.e., whether management or another tenant admitted them, or whether they were able to walk in directly without being admitted).

      . A charge of possession of a pistol without a permit was dismissed.

      . At oral argument, Davis made clear that he was no longer arguing that the dog sniff was a search for purposes of the Fourth Amendment. Accordingly, that question is not before us.

      . The full text of the constitutional provision is as follows:
      The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.
      Minn. Const, art. I, § 10.

      .Instead, the state argues that reasonable, articulable suspicion is the standard that should govern the use of the dog in this case.

      . In Wiegand, we said that the reasoning of the Supreme Court in Kyllo “suggests that a dog sniff of a home might lead a court to conclude that a search requiring probable cause took place.” Wiegand, 645 N.W.2d at 130 (discussing Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)). But Wiegand was decided before the Supreme Court clarified the reach of Kyllo in the context of dog sniffs in Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) ("Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment. We have held that any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus, governmental conduct that only reveals the possession of contraband 'compromises no legitimate privacy interest.' " (citation omitted)). See Carter, 697 N.W.2d at 208 (discussing Caballes and Kyl-lo).

      . Davis also points to United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), in support of his probable cause argument. In Thomas, the Second Circuit held that “[bjecause of defendant's] * * * heightened expectation of privacy inside his dwelling, the canine sniff at his [apartment] door constituted a search” under the Fourth Amendment. Id. at 1367. Thomas dealt with Federal constitutional law, and has been roundly criticized. See, e.g., United States v. Hogan, 122 F.Supp.2d 358, 369 (E.D.N.Y.2000) ("Thomas appears never to have been followed by any court outside [the Second] Circuit * * *.”); People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054, 1058 n. 4 (1990) ("[W]e find the Thomas court's holding to be wrong as a matter of Federal constitutional law ⅜ * *.”). State courts have, however, cited Thomas in support of their conclusions that police must have a reasonable, articulable suspicion (not probable cause) to conduct a dog sniff outside the door of an apartment. See, e.g., State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805, 817 (1999) (agreeing with Thomas that "an individual’s Fourth Amendment privacy interests may extend in a limited manner ⅜ * * [into] the hallway outside an apartment,” and concluding that "a canine sniff under these circumstances must be based on no less than reasonable, articulable suspicion”); Dunn, 563 N.Y.S.2d 388, 564 N.E.2d at 1058 & n. 4 (finding Thomas "persuasive in interpreting our State Constitution” and holding that a dog sniff may be conducted "provided that the police have a reasonable suspicion that a residence contains illicit contraband”).

      . Davis has made no argument that in order to conduct the dog sniff, the police intruded upon the curtilage of his home. See Garza v. State, 632 N.W.2d 633, 639 (Minn.2001) (“A dwelling's curtilage is generally the area so immediately and intimately connected to the home that within it, a resident's reasonable expectation of privacy should be respected.”). Accordingly, we express no opinion about what level of suspicion is required to walk a narcotics-detection dog in an area found to be within the curtilage. We also express no opinion about what standard would be required if a defendant met her burden of proving that she has a reasonable expectation of privacy in the apartment building hallway.

      . The dissent apparently would take judicial notice of a claimed fallibility of narcotics-detection dogs. We recently rejected such a categorical rule and concluded that the reliability of narcotics-detection dogs should be assessed on a case-by-case basis. See Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 529 (Minn.2007). If, as the dissent suggests, the dog utilized in this case was not reliable, that is an issue that Davis should have raised in the district court. One of the cases the dissent cites recognizes that this is the correct approach. See United States v. Limares, 269 F.3d 794, 797 (7th Cir.2001) (discussing evidence received by the district court on the issue of reliability of the dog and upholding as not clearly erroneous the court's conclusion that the dog was reliable).

      . The dissent suggests that the fact that the police did not actually enter Davis’s apartment is not dispositive of the issue presented here. We agree that the analysis under Carter does not end with a finding that the police did not take the dog inside the apartment. If that were our rule, the analysis would end with our conclusion that Davis did not prove that he had a legitimate expectation of privacy in the apartment hallway. See Gail, 713 N.W.2d at 860 (concluding that because defendant did not have a legitimate expectation of privacy in cell phone records, his constitutional rights were not violated through the police’s seizure of these records). But Carter requires more. In Carter, we recognized that the dog was sensing for odor "emanating from the unit.” 697 N.W.2d at 211. Similarly here the dog is sniffing for illegal drugs that are located inside Davis's apartment but that emit an odor that the dog is capable of detecting when the dog is walked outside the unit. Our analysis in Carter focused not only on where the police were, but also examined the location from which the police were seeking information and how intrusive the mechanism was that was used to help the police search. See id. Consistent with our precedent, we follow the same analysis here.

      . The Court ultimately held that the seizure of the luggage was not reasonable because, by transporting the luggage to a different airport and holding it for more than 90 minutes before it was subjected to the dog sniff, the police “exceeded the permissible limits of a Terry-type investigative stop.” 462 U.S. at 709-10, 103 S.Ct. 2637.

      . Our holding is not meant to indicate that taking the government's interest into account is appropriate in all cases. But where the level of the intrusion is minimal, as we have found it to be here, we believe it is appropriate to consider the government’s interest.

      .The dissent finds it “unfortunate[ ]” that we applied Terry balancing principles in Carter because the circumstances of that case did not require "necessarily swift” action on the part of the police. We did not cite Terry in our analysis in Carter but we agree with the dissent that the test we adopted in Carter is consistent with Terry principles. Carter, 697 N.W.2d at 211 (applying balancing test). Carter invoked the balancing principles in the specific context at issue here and we are not free to depart from this precedent. See, e.g., State v. Lee, 706 N.W.2d 491, 494 (Minn.2005) (discussing importance of stare decisis).

      . Application of the reasonable suspicion standard is consistent with what other state courts have done when confronting the war-rantless use of narcotics-detection dogs in hallways of apartment buildings. See, e.g., Ortiz, 600 N.W.2d at 817 (concluding that an individual has a "legitimate expectation of some measure of privacy” in an apartment hallway, and therefore a dog sniff outside an apartment door requires reasonable suspicion rather than probable cause); Dunn, 563 N.Y.S.2d 388, 564 N.E.2d at 1058 (discussing a dog sniff at the defendant’s apartment door and concluding that "[g]iven the uniquely discriminate and nonintrusive nature of [a dog sniff as] an investigative device, as well as its significant utility to law enforcement authorities,” a dog sniff "may be used without a warrant or probable cause, provided that the police have a reasonable suspicion that a residence contains illicit contraband”); see also Fitzgerald v. State, 384 Md. 484, 864 A.2d 1006, 1022-23 (2004) (refusing to decide whether the Maryland Constitution "deems a dog sniff a search, because even if it did, it would require only reasonable suspicion,” and noting that this is the conclusion reached by "almost all” of the states that have decided that a dog sniff is a search for purposes of their state constitutions).

      . It is undisputed that growing lights are often used by people to grow marijuana. See, e.g., State v. Loranger, 250 Wis.2d 198, 640 N.W.2d 555, 562 (Ct.App.2001) (acknowledging that the defendant’s above-average use of energy for lights used to grow marijuana was a factor the court could consider to support a finding of probable cause).

      . As part of its justification for a lesser standard, the court notes with approval the argument that to require probable cause and a warrant before using a narcotics-detection dog would significantly reduce the "law enforcement utility" of such animals. It is obvious to me that a dog able to reliably detect the presence of narcotics could be invaluable, once police are properly inside a residence under the authority of a warrant, in narrowing the scope of the search.