author: ANDERSON, RUSSELL A., Justice.

text:
    STATE of Minnesota, Respondent, v. Raymond Cortez STEWARD, Appellant.
    No. C3-01-444.
    Supreme Court of Minnesota.
    June 13, 2002.

      Rochelle R. Winn, Assistant State Public Defender, Minneapolis, MN, Petitioner’s Attorney.
    Michael Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, St Paul, MN, Respondent’s Attorney.
   OPINION

ANDERSON, RUSSELL A., Justice.

We review appellant Raymond Cortez Steward’s conviction for premeditated first-degree murder for killing Talvous McKinney on July 4, 2000. Appellant argues that the district court abused its discretion by permitting the state to introduce into evidence appellant’s gun-shaped jewelry, and further, that he was denied a fair trial because the prosecutor committed misconduct during cross-examination of appellant and during closing argument, using evidence as proof of appellant’s bad character. We affirm.

On the evening of July 4, 2000, appellant, Marcus Bradley and Steven Thomas arrived at 711 Sherburne Avenue in St. Paul to visit friends, but upon discovering the friends were not home began talking with neighbors outside celebrating the holiday. Down the street at 715 Sher-burne Talvous McKinney was outside his home shooting off fireworks with his brother Frederick and their friend Fern-ice Olive. Bradley cautioned the group to stop lighting fireworks, explaining that they made appellant nervous because he had been shot two days earlier. Several witnesses testified that Bradley threatened to shoot anyone that lit another firecracker. Appellant confirmed he had been shot by showing his bandages. Refusing to stop shooting the fireworks, Talvous went to his vehicle, took a firecracker out of the trunk, lit it and asked what Bradley was going to do.

An altercation ensued and Talvous struck Bradley. Appellant asked Talvous why he hit Bradley and Talvous told appellant that he (appellant) had nothing to do with it. Thomas returned to appellant’s car, and appellant followed with Talvous close behind. Frederick warned Talvous that appellant was going to get a gun, but Talvous said that the situation was not that serious. Appellant leaned in the back door of the car and told Thomas, “We gonna get ‘em,” and asked for a gun wrapped in a yellow work glove and stuffed in the backseat. Talvous, standing in the street near the car, told appellant he had no beef with him, and held his hands up in the air. Appellant pointed the gun at Talvous and fired from 5 or 6 feet away, hitting Talvous in the chest. Talvous buckled and turned and ran away, and appellant fired several more times in the direction of Talvous and others. A bullet struck Talvous in the back of his right leg and he collapsed. Appellant and Bradley ran away, and Thomas drove away in appellant’s vehicle, but was stopped almost immediately by police. The gunshot to Talvous’s chest severed his abdominal aorta and he died from the resulting blood loss.

To police on the scene witnesses identified the shooter as “Ooze,” appellant’s nickname. Police began searching for him, based in part on the description provided by an officer who had stopped appellant, Bradley, Thomas and appellant’s girlfriend Tessa Samson in the early morning hours of July 4 for shooting off fireworks on the same block of Sherburne where Talvous was shot. During that encounter a police officer noted that appellant was wearing earrings that resembled Uzi sub-machine guns. A picture of appellant taken by police that night was introduced into evidence at appellant’s trial. In the picture, appellant was wearing the earrings. The jewelry itself was also admitted into evidence.

After the shooting appellant fled to Bradley’s girlfriend’s apartment. He spoke with Samson and asked her to tell police they had been at a barbecue all day. When appellant told Samson he had not shot anyone she heard people in the background laugh. Appellant’s “associate” Cedric Benjamin received a call about appellant and drove to see him. Appellant told Benjamin that he needed a place to stay because he did not want the police to catch him. Benjamin suggested he leave town, but allowed appellant to stay with him that night at a hotel. Later police found one of appellant’s Uzi-shaped earrings in the hotel room. The next day appellant took a cab from the hotel to the home of his associate Albert Hill. Appellant asked Hill to cut his hair because he had a distinctive word (“MOB”) shaved in the hair on the back of his head. Police found appellant hiding in Hill’s kitchen behind the refrigerator and arrested him. They found another of appellant’s Uzi-shaped earrings and an Uzi-shaped ring on a table in Hill’s home.

Appellant claimed that he acted in self-defense. He testified that he was shot on July 2 and left the hospital against medical advice with both wounds bandaged. According to appellant the fireworks that Talvous and his friends shot on July 4 made him nervous because they sounded like gunshots, and when Bradley announced that the firecrackers were making appellant nervous, Talvous responded that nobody tells him what to do on his own block. Appellant testified that Talvous and Bradley began to argue. Talvous said “let’s show 'em what we’s about” and Frederick said “We could bang or we could pistol slang.” Talvous went to the trunk of his car, and from experience in the neighborhood appellant worried that Tal-vous was retrieving a gun. Talvous returned with a firecracker and lit it in front of Bradley before punching him. Appellant testified that he backed up to his car with his hands out in front of him and felt outnumbered, scared and intimidated, and that Talvous and two others followed to the car and Talvous told appellant “It’s our mother f_ing block. You all cornin’ up here startin’ that bulls_” Appellant testified that Thomas handed him a gun and he shot at Talvous and then shot aimlessly, but denied wearing a work glove during the shooting. Appellant testified that was ■scared and reacted the way he did because Talvous had gone to his trunk earlier and appellant believed it was to get a gun because of Frederick’s “pistol slang” comment, because he had seen Talvous in a gun battle where a young girl was shot and at a dice game where Talvous robbed two other players at gunpoint.

Appellant was found guilty of premeditated first-degree murder, intentional second-degree murder and second-degree felony-murder. He contends that he was denied a fair trial, and on appeal his argument focuses on prosecutorial misconduct, but embedded within that argument is an evidentiary issue, which we address first.

I.

We first examine whether appellant’s right to a fair trial was violated because the district court admitted into evidence appellant’s Uzi-shaped jewelry. Appellant argues that the jewelry was unconnected to the shooting, that the jewelry was not necessary to identify him as the shooter because most of the witnesses knew appellant prior to the shooting, and that if the purpose of admitting the jewelry was to show that he fled by placing him in the hotel room he stayed in the night of the shooting, simply informing the jury that his jewelry was found would have accomplished that without the prejudicial effect of admitting the gun-shaped jewelry. Appellant cites State v. Grayson, 546 N.W.2d 731, 737 (Minn.1996), in which we held that it was an abuse of discretion to admit into evidence defendant’s “Malcolm X” hat when the hat had no connection with and played no role in the crime charged. However, we held that the error was not so prejudicial that it required a new trial. Id. at 737-38. Appellant contends that here the true purpose of offering the jewelry as evidence was to characterize him as a gun-loving criminal with an affinity for deadly weapons.

The state argues that the jewelry was properly admitted because it connected appellant to the crime, since appellant was known in the neighborhood for wearing the jewelry. The state argues that it was relevant to prove the identity of the shooter, and further argues that the jewelry’s probative value is enhanced because the earrings left at the hotel and at appellant’s associate’s house show that appellant was trying to avoid identification and apprehension by changing his appearance.

The district court has broad discretion in ruling on evidentiary matters and we will not overturn a district court’s evidentiary rulings unless appellant shows a clear abuse of discretion and that this abuse resulted in prejudice to him. State v. Willis, 559 N.W.2d 693, 698 (Minn.1997). At a minimum, evidence must be relevant to be admissible. See State v. Harris, 521 N.W.2d 348, 351 (Minn.1994). Under Minnesota Rule of Evidence 401, relevant evidence is anything that tends to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Physical evidence is generally admissible if it connects the defendant to the crime. See State v. Johnson, 324 N.W.2d 199, 201 (Minn.1982). However, relevant evidence may be ex-eluded if its probative value is substantially outweighed by its likelihood of creating unfair prejudice. Minn. R. Evid. 403.

Here the circumstantial evidence indicates that appellant was wearing the jewelry at the time of the shooting and direct evidence indicates that he discarded it during flight in an effort to conceal his identity. Thus the jewelry helps to identify appellant as the shooter and suggests his consciousness of guilt. The probative value of the jewelry was not substantially outweighed by the likelihood of prejudice, particularly in light of the fact that appellant was known as “Ooze” and known for wearing the jewelry. We hold that the district court did not abuse its discretion by admitting the jewelry.

II.

We next turn to appellant’s argument that the state committed prosecutorial misconduct during appellant’s trial. Even if established, prosecutorial misconduct does not in and of itself require a new trial. State v. Scruggs, 421 N.W.2d 707, 715-16 (Minn.1988). A conviction should be reversed if the misconduct appears to be inexcusable and so serious and prejudicial that the defendant’s right to a fair trial is denied. State v. Smith, 541 N.W.2d 584, 588 (Minn.1996). Therefore, we generally will not grant a new trial if the misconduct was harmless beyond a reasonable doubt. State v. Atkins, 548 N.W.2d 642, 648 (Minn.1996).

We determine whether prosecu-torial misconduct is harmless based in part on the type of misconduct. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). In cases involving unusually serious prosecutorial misconduct, that misconduct will not be characterized as harmless unless there is certainty beyond a reasonable doubt that the misconduct was harmless. Id. at 127-28, 218 N.W.2d at 200. In cases involving less serious misconduct, the misconduct will not be characterized as prejudicial unless it is likely that the misconduct played a substantial part in influencing the jury to convict. Id., 218 N.W.2d at 200. Whether a new trial should be granted because of prosecutorial misconduct is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect. Scruggs, 421 N.W.2d at 716. As a general rule, the right to raise an issue concerning the prosecutor’s closing argument is forfeited if the defendant fails to object or seek a cautionary instruction at trial. State v. Parker, 353 N.W.2d 122, 127 (Minn.1984).

Appellant argues that the record discloses a pattern of misconduct by the prosecutor that includes the introduction of other bad acts committed by appellant, inadmissible character evidence, and suggestions that the jury draw inferences from facts not in evidence. The state responds that the prosecutor did not commit misconduct and that any overzealousness fell short of the level of conduct that requires a new trial. We analyze each allegation of misconduct in turn.

Appellant’s first contention is that during cross-examination the prosecutor improperly introduced evidence of appellant’s prior bad acts and bad character. During appellant’s direct examination he admitted having two prior convictions for controlled substance offenses. On cross-examination the prosecutor asked several questions regarding the terms of appellant’s probation, to which defense counsel objected. The court sustained objections to questions asking whether appellant was prohibited from owning a gun or driving a car, but overruled an objection to a question asking whether appellant was ordered to stay out of the neighborhood where the shooting occurred. While deliberating the jury asked the district court whether appellant was “currently being restrained from the neighborhood.” Appellant argues that this line of questioning effectively introduced evidence of his prior bad acts — crimes that had no material relevance to this case and served to suggest his propensity to commit crimes. The state responds that the questions were proper because they challenged appellant’s credibility, at issue because he testified to his mental state at the time of the shooting and his justification for shooting Talvous.

It is unprofessional conduct for the prosecutor to knowingly offer inadmissible evidence in order to bring that evidence to the attention of the judge or jury, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the jury. State v. White, 295 Minn. 217, 223, 203 N.W.2d 852, 857 (1973). However asking a question to which an objection is sustained is not by itself evidence of prosecutorial misconduct. Furthermore the jury must be presumed to have followed the court’s instructions and to have disregarded any question to which an objection was sustained. See State v. James, 520 N.W.2d 399, 405 (Minn.1994). Even if the questions amount to misconduct, it is at most nonserious misconduct, to which we apply the harmless error analysis applicable to less serious prosecutorial misconduct. See Caron, 300 Minn, at 128, 218 N.W.2d at 200. We hold that because it is unlikely the questions played a substantial part in influencing the jury to convict, the questions were harmless, appellant’s right to a fair trial was not violated, and a new trial is not warranted.

Appellant next argues that during cross-examination the prosecutor improperly asked him what his nickname Ooze meant. Before trial, the defense moved to prevent the state from speculating about the origins of appellant’s nickname Ooze. The court ruled “I don’t think we need to have the police officers or anyone else defining the nickname” and the prosecutor told the court that she had no need to inquire about the origins of the nickname. During cross-examination of appellant, the prosecutor asked him what his nickname was and what it stood for. The defense objected to the second question and the district court sustained the objection. Appellant argues that the prosecutor sought to associate appellant’s nickname with an Uzi weapon. The state responds that because the objection was sustained, the jury never heard what the nickname meant, and furthermore even without the question, the jury was free to draw its own inference about the origins of his nickname. The court’s ruling that “anyone else” besides police officers should not define the nickname indicates the prosecutor’s question was improper. We hold that in the context of the repeated use of the nickname and the evidence of Uzi-shaped jewelry, the improper question about the nickname’s meaning does not amount to serious misconduct, and thus we apply the harmless error analysis for less serious misconduct. In light of the jury instruction to disregard questions to which an objection was sustained, it is unlikely the question about the nickname played a substantial part in influencing the jury to convict, and thus the error was harmless, appellant’s right to a fair trial was not violated, and a new trial is not warranted.

Appellant next argues that the cumulative effect of irrelevant and inflammatory arguments about the bad character of appellant and his associate during closing argument served to divert the jury’s attention from his guilt or innocence. He argues that during the state’s closing argument the prosecutor sought to discredit appellant and illustrate appellant’s bad character via a guilt-by-association attack on the character of Cedric Benjamin, an associate of appellant’s and a witness for the state prosecutor:

There’s also the father figure, Cedric Benjamin. That’s the defendant, Raymond Steward’s term for Benjamin, a father figure. Now, [defense counsel] made a lot about the fact that Cedric Benjamin is under federal indictment for some big drug deal. Cedric Benjamin told you that he has convictions for things such as possession of a gun in a schoolyard, possession of a gun by an ineligible person, and yet this is the type of father figure that Raymond Steward picked. What kind of father figure is that? * * * Cedric Benjamin was the kind of man who, when you were in trouble, and needed something when you were in trouble from committing a crime, Cedric Benjamin could help you out. He’s not so much a father figure as a godfather.

Appellant also argues that during closing argument the prosecutor established a theme of appellant’s bad character based on appellant’s “Law of Retribution and Retaliation,” his attitude towards women, and his ideas about masculinity. The closing argument began with the following statement:

There’s Ooze’s world and there’s Ooze’s law. And thank God most of us don’t live by Ooze’s law, because Ooze’s law is based on retaliation, it’s based on retribution, and it causes pain and it causes suffering. That’s not the real world and that’s not real justice. I’m going to talk to you first about Ooze’s law and Ooze’s rules, and then I’m going to talk to you about the law that applies in this case.

Subsequently the prosecutor returned to this theme, arguing for instance, “Now, in Ooze’s world there are certain rules, too; in fact Ooze’s world is all one big game of Ooze says. * * * [A]nd if you violate Ooze’s law you find out what happens.” The prosecutor also connected appellant’s gunshot injuries to the theme: “Bloated understood Ooze’s law of retribution, of retaliation, that’s why he shot Raymond Steward.” The prosecutor also argued that because appellant had the word MOB shaved in the back of his hair, that his attitude toward women was negative: “Women apparently are bit players in Ooze’s world. His hairstyle said it all: Money over bitches. That’s what he thinks of women in his world.” The prosecutor also speculated about appellant’s idea of masculinity, arguing for instance:

In Oozes’s world, there’s another rule: Never show weakness. Ooze’s world is a manly man’s kind of place. Best evidence of that, Raymond Steward gets shot on July 2nd, he goes to the hospital, the doctors say, “We want to take the bullet out of you.” But only a sissy would have that done. A manly man would wear that like a badge of honor, and that’s what Raymond Steward did. He’s proud to have that, it shows how tough he is, how strong he is.

Appellant argues that the prosecutor’s closing argument sought to inflame the jury’s prejudice by making allegations outside of the record and influence the jury by using improper character evidence. The state responds that in linking together facts adduced at trial, the prosecutor sought to prove appellant’s version of the facts was not credible, and that his actions failed to satisfy the legal requirements of self-defense in Minnesota.

We are concerned that prosecutors not attempt to bolster evidence by characterizing the accused as a person who would commit the offense charged, thereby violating our rule against using evidence of a person’s character to prove action in conformity therewith. See Minn. R. Evid. 404. However, as a general rule, the right to raise an issue concerning the prosecutor’s closing argument is waived if the defendant fails to object or seek a cautionary instruction at trial. Parker, 358 N.W.2d at 127. Of the statements appellant now complains of, he objected to none of them at trial and therefore failed to preserve the issue for appellate review. We hold that by failing to object at trial to the portions of the closing argument now objected to and failing to seek specific cautionary instructions, appellant is deemed to have forfeited his right to have the issue considered on appeal. See State v. Gunn, 299 N.W.2d 137, 138 (Minn.1980).

While we need not address appellant’s allegations of prosecutorial misconduct during closing argument in light of appellant’s failure to preserve the issue, we may reverse a conviction if we deem an error sufficient to do so. Id. However we do not believe this case justifies a reversal. Appellant’s own theory of the case invited the theme “Ooze’s world” in the state’s closing argument. Notably, in the second sentence of his opening statement, appellant’s attorney introduced the idea of appellant living in a “different world” to establish the reasonableness of appellant’s actions: “Defense in this case will show that [appellant] as well as many of the other principals in this case inhabit a world that is far different than the world in which you and I live. It’s a world based on loose relationships, temporary allegiances and shifting alliances.” Rather than impermissibly attacking appellant’s character, the prosecutor’s “Ooze’s Law” theme, in context, can be seen as refuting appellant’s self-defense theory that he acted reasonably under the circumstances. Furthermore, even if the prosecutor’s “Ooze’s Law” theme constitutes misconduct, it does not amount to serious prose-cutorial misconduct and any likelihood that the theme played a substantial part in influencing the jury to convict was substantially diluted by the defense theory. See Caron, 300 Minn, at 127-28, 218 N.W.2d at 200. Likewise the prosecutor’s references to appellant’s attitude toward women, while irrelevant and improper, do not constitute serious misconduct in light of appellant’s testimony on direct examination that the letters shaved into his hair stood for “money over bitches.” Any likelihood that the prosecutor’s error played a substantial part in influencing the jury to convict was substantially diluted by this testimony. The prosecutor’s references to appellant’s associate Cedric Benjamin should have been restricted to Benjamin’s role in appellant’s flight from apprehension, and the references to Benjamin as a “godfather” were improper as an attempt to paint appellant as the type of person who would choose a convicted felon as a father figure. The references may have illustrated that appellant showed poor judgment in choosing associates, but do not amount to serious prosecutorial misconduct and the likelihood that the error played a substantial part in influencing the jury to convict was minimal. Thus, even overlooking appellant’s failure to preserve the issue, cumulatively the errors in the state’s closing argument do not amount to the type of prosecutorial misconduct that warrants a new trial.

Affirmed.

      . Appellant sustained two gunshot wounds in an unrelated incident on July 2. He was shot in the left arm and the stomach at a gas station. Appellant's girlfriend testified that the shooter owed appellant money, that appellant "hit” him, and that the shooting was in retaliation. Appellant refused surgery for the wounds and at trial testified on direct examination that he told police that he did not know who shot him because he was not "fond” of the police nor were they "fond" of him.

      . Witnesses testified that appellant wore a brown work glove on the hand holding the gun. Earlier that day appellant, his girlfriend Tessa Samson, Thomas, and Bradley bought brown work gloves. Samson testified that because the men bought the gloves after stating they were "strapped” (armed), she was concerned and asked to be dropped off at her sister’s home right away. Appellant testified that the group did not buy work gloves. One yellow work glove was found on the front seat of appellant's car after the shooting.

      .Thomas ultimately pleaded guilty to second-degree murder in exchange for a reduced sentence, and testified for the state at appellant’s trial.

      . Benjamin described appellant as an "associate,” not a "friend" or "somebody that [he] hung out with socially.” Steven Thomas also said appellant was his associate, not his friend. Thomas defined an associate as "[s]omebody I can go to if I had a problem or something.”

      . Appellant testified upon direct examination that the letters MOB stood for "[m]oney over bitches.”

      . At sentencing the district court entered a conviction for first-degree murder and dismissed the other charges. Minnesota Statutes § 609.035, subd. 1 (2000) provides that where a person’s conduct constitutes more than one offense, that person may be punished for only one of the offenses.

      . During his testimony appellant clarified that his earrings actually depicted Tech-9 automatic weapons, not Uzi submachine guns.

      . During-cross examination of appellant, the following exchange occurred:
      Prosecutor: Because of your criminal convictions, you weren't even supposed to have a gun, were you?
      Defense Counsel: Objection, irrelevant, Your Honor.
      Court: Sustained.
      Prosecutor: You're not even supposed to be driving a car, were you?
      Defense counsel: Objection, irrelevant.
      Court: Sustained.
      Prosecutor: And after your last conviction, the judge didn’t even want you in the area; in fact, ordered you to stay out of the area around 711 Sherburne, right?
      Appellant: No.
      Prosecutor: That was one of the rules of your probation, was it not, to stay out of the area bounded by Minnehaha, Dayton, Western, and Victoria?
      Defense Counsel: Objection, relevance.
      Court: Overruled.
      Appellant: On my first, yes, it was; on my second, they ran it concurrent. I was a resident for a long time, so it wasn't , no longer an issue. I lived in Frogtown.
      Prosecutor: But the area had been a problem for you and you were not supposed to be there, right?
      Appellant: I don't understand the question.
      Prosecutor: The judge told you that because of the problems you had had in that area, you were to stay out of that area, right?
      Appellant: Yes.

      . The state argues that the pretrial discussion regarding soliciting the origins of appellant's nickname did not apply to asking appellant about the nickname; rather the ruling applied only to questions for other witnesses regarding what Ooze meant. On the record the district court said “But in any event I don't think we need to have the police officers or anyone else defining the nickname. They can use it.” A few lines later the prosecutor stated "But I don’t need to go into why they call him that.” The court replied "That's my point. Whatever they think his street name might be.”

      . "Bloated” was the street name of the man who shot appellant on July 2.

      . Appellant contended at oral argument that because he made a motion in limine regarding the use of his nickname and to exclude the jewelry from evidence, the issue of whether the prosecutor committed misconduct by characterizing him as a criminal was preserved for appellate review. We disagree. Because we do not have an adequate record of the motions made pre-trial, and because the subject of those motions could not have related directly to the theme of the state's closing argument, we conclude that the issue was not preserved for appeal by appellant's motions in limine.


source: Caselaw Access Project

author: RUSSELL A. ANDERSON, Justice. PAGE, J., BLATZ, Chief Justice

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Rolan WIEGAND, Lorna Quesette Matthews, Almond Baxter Longley, Petitioners, Appellants.
    Nos. C2-00-1137, C4-00-1138, C6-00-1139.
    Supreme Court of Minnesota.
    June 13, 2002.

      Joanna M. Wiegert, #214863, Duluth, MN, Scott G. Swanson, Minneapolis, MN, Appellants’ Attorneys’.
    Mike A. Hatch, Minnesota Attorney General, St. Paul, MN, Marvin E. Ketola, Carlton County Attorney, Dennis Gener-eau, Jr., # 267776, Assistant County Attorney, Carlton, MN, Respondent’s Attorneys’.
    Michele R. Wallace, # 262304, Rondoni, MacMillan & Schneider, Ltd., Minneapolis, MN, Teresa Jo Nelson, #269736, Minnesota Civil Liberties Union, St. Paul, MN, Attorneys for Amicus Curiae MCLU.
   OPINION

RUSSELL A. ANDERSON, Justice.

Appellants Rolan Wiegand, Loma Ques-ette Matthews, and Almond Baxter Long-ley were charged with fifth-degree possession of controlled substance in violation of Minn.Stat. § 152.025, subd. 2(1) (2000). They moved to suppress the evidence obtained as a result of a search of the vehicle they were in, which was conducted after a trained narcotics-detection dog alerted to the presence of narcotics under the hood of the vehicle. Wiegand also moved to suppress the evidence obtained from his person, which was recovered as a result of a pat-down search incident to arrest after discovery of the narcotics under the hood. The district court suppressed the evidence, concluding that the law enforcement officers lacked probable cause to conduct the dog sniff around the exterior of the vehicle, and thus lacked probable cause to search the vehicle. The district court dismissed the charges and the court of appeals reversed, concluding that a dog sniff is not a search and therefore does not require probable cause. State v. Wiegand, 621 N.W.2d 476, 478 (Minn.App.2001). While we agree that the dog sniff of the exterior of the motor vehicle in this case was not a search requiring probable cause, we reverse the court of appeals on the basis that the investigative method used by the officers exceeded the permissible scope of a traffic stop for a routine equipment violation in the absence of a reasonable, articulable suspicion of drug-related criminal activity.

A Cloquet police officer observed a car traveling north on Highway 33 at 12:20 a.m. with a burned-out headlight. The officer stopped the car and identified Matthews, the owner of the vehicle, in the back seat, Wiegand, the driver, and Long-ley in the front passenger seat. As the officer spoke with appellants, two other Cloquet police officers arrived on the scene. The officer who made the stop reported that Wiegand had very slow and quiet speech, was somewhat nervous, was shaking, and had glossy eyes. The officer also testified at the suppression hearing that Wiegand was looking down and was not talking in the officer’s direction. On cross-examination, the officer testified that during the stop he did not suspect that Wiegand was under the influence of any drugs, but instead concluded simply that Wiegand was acting suspiciously.

The officer asked Wiegand, and then Matthews, if there were any narcotics in the car, and each responded there were not. The officer requested permission to search the car, and Matthews denied the request. The officer determined not to issue a citation but to issue a warning for the equipment violation, and asked another officer to write the warning so that he could retrieve his dog, trained in narcotics detection, from his patrol car.

The officer walked the dog around the car twice, and each time the dog alerted to narcotics at the front, passenger-side corner of the car. The officer told Matthews that the dog detected narcotics, and she responded that it may have been because she occasionally smokes a marijuana joint in the car. The officer walked the dog around the car a third time, and the dog alerted to the same area. At some point, either preceding or following the third alert, the officer placed the dog in the interior of the vehicle to pinpoint the origin of the smell that had caused the dog to alert to narcotics, and the officers then searched the interior of the vehicle. The dog did not alert to narcotics inside the vehicle, however, and the officers found no narcotics. The officers then opened the hood of the car and discovered four and one-half ounces of marijuana in a plastic bag behind the insulation on the underside of the hood. The officers placed appellants under arrest. During a pat-down of appellants, more marijuana and some cocaine were found on Wiegand.. Appellants were charged with possession of controlled substance in the fifth degree, Wiegand with two counts.

On motions to suppress the controlled substance in each case, the district court concluded that there was no probable cause for a search, suppressed the evidence, and dismissed the charges. The court of appeals reversed, concluding that a dog sniff is not a search, and therefore probable cause is not required to conduct a dog sniff. Wiegand, 621 N.W.2d at 478.

I.

We are asked to determine whether the Fourth Amendment to the U.S. Constitution or Article I, Section 10, of the Minnesota Constitution require probable cause or a reasonable, articulable suspicion of drug-related criminal activity before a narcotics-detection dog may be used around the exterior of a motor vehicle stopped for an equipment violation. This case also presents us with the related issue whether the use of the narcotics-detection dog in this case was within the permissible scope of the limited investigation occasioned by a stop for a routine equipment violation. We review de novo a lower court’s ruling on constitutional questions. State v. Wicklund, 589 N.W.2d 793, 797 (Minn.1999). We also review de novo a district court’s determination of probable cause as it relates to warrantless searches. Matter of Welfare of GM., 560 N.W.2d 687, 690 (Minn.1997). When reviewing the legality of a search or seizure, an appellate court will not reverse the district court’s factual findings unless clearly erroneous or contrary to law. Id.

II.

We first consider whether a dog sniff of a motor vehicle stopped for a routine equipment violation is a search requiring probable cause. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the U.S. Supreme Court concluded that a dog sniff of luggage in a public place is not a search that requires probable cause. Id. at 707, 103 S.Ct. 2637. The Court reasoned as follows:

[T]he 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 707,103 S.Ct. 2637. The Court explicitly limited its ruling to the exposure of luggage in an airport, a public place, to a dog sniff, which suggests the possibility that a dog sniff under different circumstances might be treated differently.

Indeed, the analysis of permissible searches and seizures necessarily requires consideration of the particular privacy interests in the place or item to be searched. In the Court’s recent decision in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Court reiterated the primacy of the home in the array of protected spaces. The Court held that use of thermal-imaging devices that detect heat in a home from the public street constitutes a search under the Fourth Amendment, in part because the sense-enhancing technology allowed the government to obtain information that it could not have otherwise obtained without physical intrusion. 533 U.S. at 34-35,121 S.Ct. 2038. While Kyllo involved both the home and a piece of technical equipment much different from a dog, its reasoning suggests that a dog sniff of a home might lead a court to conclude that a search requiring probable cause took place.

We consider, then, the nature of the privacy interest in an automobile. Automobiles constitute “effects” under the Fourth Amendment, and therefore the constitutional standard of reasonableness applies to searches and seizures of automobiles. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). However, the U.S. Supreme Court has determined that the privacy expectation surrounding an automobile is less than that of a home because the automobile generally does not serve as the repository of personal effects. Cardwell, 417 U.S. at 590, 94 S.Ct. 2464. The privacy expectation is also diminished because of the significant governmental regulation of vehicles. South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). However, “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As the Court has recognized, “[a] search, even of an automobile, is a substantial invasion of privacy.” United States v. Ortiz, 422 U.S. 891, 896, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); see also State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977) (holding privacy interest in automobile constitutionally protected).

However, the U.S. Supreme Court has indicated that the holding from Place that a dog sniff is not a search would apply to a dog sniff conducted around the exterior of a motor vehicle. Edmond, 531 U.S. at 40, 121 S.Ct. 447. Edmond involved a vehicle checkpoint set up to interdict illegal drugs. The Court stated that “an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics.” Edmond, 531 U.S. at 40, 121 S.Ct. 447. The Court continued by stating that, “Mike the dog sniff in Place, a sniff by a dog that simply walks around a car is ‘much less intrusive than a typical search.’” Id. (quoting Place, 462 U.S. at 707,103 S.Ct. 2637).

Federal courts of appeals addressing dog sniffs of motor vehicles have held that a dog sniff is not a search requiring probable cause. See, e.g., United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir.1999); United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998); United States v. Holloman, 113 F.3d 192, 194 (11th Cir.1997); United States v. Jeffus, 22 F.3d 554, 557 (4th Cir.1994); United States v. Seals, 987 F.2d 1102, 1106 (5th Cir.1993); United States v. DiCesare, 765 F.2d 890, 897, opinion amended on other grounds, 111 F.2d 543 (9th Cir.1985). We read these authorities, along with Place and Edmond, to indicate that a dog sniff around the exterior of a motor vehicle located in a public place is not a search requiring probable cause for purposes of the Fourth Amendment.

Appellants ask us to hold that Article I, Section 10 of the Minnesota Constitution, textually identical to the Fourth Amendment, requires probable cause before law enforcement may conduct a dog sniff around the exterior of a motor vehicle stopped for a routine equipment violation. We may construe a provision of the Minnesota Constitution to extend greater rights than a comparable provision in the U.S. Constitution, but we will not do so cavalierly. See State v. Carter, 596 N.W.2d 654, 657 (Minn.1999); State v. Risk, 598 N.W.2d 642, 649 (Minn.1999). A decision of the U.S. Supreme Court interpreting a provision of the federal constitution that is textually identical to a provision of the Minnesota Constitution is of inherently persuasive, although not necessarily compelling, force. State v. Fuller, 374 N.W.2d 722, 727 (Minn.1985).

On two occasions we have reached conclusions regarding Article I, Section 10 of the Minnesota Constitution that departed from decisions of the U.S. Supreme Court interpreting the substantively identical language of the Fourth Amendment and applying it to the same or similar facts. In so doing, we interpreted the Minnesota Constitution as according greater protection than the Fourth Amendment. In In re Welfare of E.D.J., we departed from Supreme Court precedent regarding when a seizure occurs, concluding that the decision in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), represented a sharp departure from previous decisions, and we were not persuaded that there was a need to depart from the pre-Hodari D. analysis. In re Welfare of E.D.J., 502 N.W.2d 779, 780, 783 (Minn.1993). One year later, we noted that the decision in Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), allowing the use of temporary road blocks to investigate driving under the influence, represented a radical departure from precedent. Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 186 (Minn.1994). Declining to follow Sitz, we reaffirmed on the basis of our state constitution the longstanding requirement in Minnesota that police need an objective individualized ar-ticulable suspicion of criminal wrongdoing before making an investigative stop. Id. at 187.

However, we perceive no sound basis on which to reject the U.S. Supreme Court’s approach to the Fourth Amendment issue presented in this case. The Court’s analysis in Place was not a radical or sharp departure from precedent. More importantly, that analysis reflects a weighing of the government’s interest and the degree of intrusion on the individual that is consonant with this court’s approach to search and seizure analysis under the state constitution. See, e.g., Ascher, 519 N.W.2d at 186-87. Specifically, we agree that the unique nature of the investigative dog sniff under the facts of this case was “so limited both in the manner in which the information [was] obtained and in the content of the information revealed” that it does not constitute a search. Place, 462 U.S. at 707, 108 S.Ct. 2637. We therefore conclude that a dog sniff around the exterior of a legitimately stopped motor vehicle is not a search requiring probable cause on the basis of either the Fourth Amendment or the Minnesota Constitution. In this case the court of appeals reached the same conclusion and ended its inquiry there, and on that basis it vacated the district court’s order to suppress the evidence and dismiss the charges. Wiegand, 621 N.W.2d at 478-79. We note, however, that the Court in Place did not hold that no level of suspicion at all was required to detain the luggage; rather, the Court concluded that a reasonable, articulable suspicion of criminal activity was required to seize the luggage in order to conduct the dog sniff. Place, 462 U.S. at 702, 103 S.Ct. 2637. In this case, the court of appeals did not consider whether the degree of intrusion attendant to a dog sniff warrants some justification less than probable cause, such as a reasonable, articulable suspicion, for the government action. Because we believe that question must be answered to determine the reasonableness of the law enforcement officer’s investigative method under the state and federal constitutions, we turn to that question.

III.

In Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court held that officers, on less than probable cause, could conduct a limited search for weapons of persons suspected of criminal activity. The Court in Place concluded that it was appropriate to apply the principles announced in Terry to the seizure of luggage in an airport for purposes of a dog sniff. Place, 462 U.S. at 702, 103 S.Ct. 2637. Likewise, we conclude the Terry principles are appropriately applied in this case when a motor vehicle is stopped for a routine equipment violation. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (holding routine traffic stop is relatively brief encounter and is analogous to Terry stop).

Terry authorizes us to balance the nature and quality of the intrusion into the individual’s Fourth Amendment interests against the importance of the governmental interests at stake. A person clearly has some expectation of privacy in an automobile. Ortiz, 422 U.S. at 896, 95 S.Ct. 2585; Goodrich, 256 N.W.2d at 510. We consider, then, the extent to which a dog sniff is an intrusion into that interest. The Court in Place held that the manner in which information is obtained through a dog sniff is much less intrusive than a typical search. 462 U.S. at 707, 103 S.Ct. 2637. The Court further explained in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), that the investigative method used there, which revealed only the presence of narcotics and nothing else, was less intrusive than a typical search. 466 U.S. at 123-24, 104 S.Ct. 1652 (citing Place, 462 U.S. at 707, 103 S.Ct. 2637). Similarly, 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 — items that a law enforcement officer would detect in an actual search.

However, a dog sniff around a motor vehicle stopped only for a routine equipment violation is intrusive to some degree. A dog sniff detects something that the public generally cannot detect, cf. Kyllo, 533 U.S. at 34, 121 S.Ct. 2038, and something that, in this case, was purposefully hidden from view. Given that there is some intrusion into privacy interests by a dog sniff, we hold that an officer 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. While the officer need not have probable cause, the officer may not be motivated by “mere whim, caprice, or idle curiosity.” State v. Pike, 551 N.W.2d 919, 921-22 (Minn.1996).

What level of suspicion should apply? In some cases, courts have concluded that because Place stated that a dog sniff is not a search, no minimal threshold need be met to conduct a dog sniff around the exterior of a motor vehicle when the vehicle is otherwise legitimately detained or when the vehicle is not detained at all, as with a vehicle parked in a public parking lot. United States v. Ludwig, 10 F.3d 1523 (10th Cir.1993) (holding that dog sniff conducted around vehicles parked in motel parking lot with permission of motel owner permissible regardless of whether law enforcement had reason to suspect or detain vehicles); see also Hunnicutt, 135 F.3d 1345, 1350 (holding that dog sniff does not implicate the Fourth Amendment when conducted around automobile during legitimate traffic stop); Merrett v. Moore, 58 F.3d 1547, 1553 (11th Cir.1995) (holding that dog sniffs conducted -without individualized reasonable suspicion around automobiles legitimately detained at roadblocks did not violate the constitution); Seals, 987 F.2d at 1106; United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir.1990) (holding that dog sniff around vehicles lawfully detained by law enforcement does not require an individualized reasonable suspicion); Kirkpatrick, 5 F.Supp.2d at 1059. In these cases the courts focused their attention on whether the law enforcement officer had any reasonable, articulable suspicion to justify the detention, rather than on whether the law enforcement officer had a reasonable, ar-ticulable suspicion of drug-related criminal activity that justified conducting the dog sniff.

On the other hand, some federal courts have concluded that there must be a reasonable, articulable suspicion of drug-related criminal activity before a dog sniff may be conducted. See United States v. Testing 869 F.2d 316, 323 (7th Cir.1989) (holding reasonable suspicion to stop defendant supported decision to detain baggage for exposure to dog); United States v. Quinn, 815 F.2d 153, 159 (1st Cir.1987) (concluding law enforcement required to have reasonable suspicion that car contains narcotics at moment dog sniff occurs); see also United States v. Winningham, 140 F.3d 1328, 1330-31 (10th Cir.1998).

In sum, the federal decisions are less than uniform regarding the standard to be applied to dog sniffs of motor vehicles. For our part, we read Place and Terry and our recognized, albeit limited, privacy right in a motor vehicle to require a reasonable, articulable suspicion of drug-related criminal activity before law enforcement may conduct a dog sniff around a motor vehicle stopped for a routine equipment violation in an attempt to detect the presence of narcotics. Recognizing the conflict among courts on this issue, however, we also base our decision on the changed scope of the investigation in this case, and we turn to that issue.

IV.

The officer initially stopped appellants’ car for a burned-out headlight. A limited investigative stop is lawful if there is a particularized and objective basis for suspecting the person stopped of criminal activity. State v. Smallwood, 594 N.W.2d 144, 155 (Minn.1999) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Edüd 621 (1981)). “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Boyer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Moreover, the scope of a stop must be strictly tied to and justified by the circumstances that rendered the initiation of the investigation permissible. Smallwood, 594 N.W.2d at 155 (citing Terry, 392 U.S. at 19, 88 S.Ct. 1868). Law enforcement may continue the detention “as long as the reasonable suspicion for the detention remains * * * provided they act diligently and reasonably.” Smallwood, 594 N.W.2d at 155 (quoting State v. Moffatt, 450 N.W.2d 116, 119 (Minn.1990)). Expansion of the scope of the stop to include investigation of other suspected illegal activity is permissible under the Fourth Amendment only if the officer has reasonable, articula-ble suspicion of such other illegal activity. Terry, 392 U.S. at 20-21, 88 S.Ct. 1868; United States v. Ramos, 20 F.3d 348, 352 (8th Cir.1994) (holding consent to search was fruit of illegal detention, as it took place after the original purpose of the stop — a seat belt violation — had been accomplished).

Several cases deal with a traffic stop that is extended in duration to allow for use of a drug-sniffing dog. See, e.g., United States v. Dortch, 199 F.3d 193, 200 (5th Cir.1999) (holding traffic stop illegally extended until drug-sniffing dogs arrived, when no reasonable suspicion defendant trafficking in drugs), opinion corrected on other grounds by 203 F.3d 883 (5th Cir. 2000); United States v. Pruitt, 174 F.3d 1215, 1221 (11th Cir.1999) (same). In these cases the courts held that extending the stop without reasonable suspicion violates the principles of Terry and suppressed the evidence. In another case, when the canine unit was already on the scene, the stop was not extended for a new purpose and the sniff was permissible. Holloman, 113 F.3d at 196; see also Dortch, 199 F.3d at 200 (noting that if canine search had been performed during initial detention, no constitutional violation).

Appellants do not argue that the stop in this case was extended in duration beyond that which would have been necessary to issue the warning ticket for the headlight. Because the officer was able to delegate the issuing of the ticket to another officer, the first officer was freed to run the dog around the car within the time necessary to resolve the basis for the initial stop. However, the reasonableness requirement of the Fourth Amendment is not concerned only with the duration of a detention, but also with its scope. See Terry, 392 U.S. at 19, 20, 88 S.Ct. 1868 (“The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible,” quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring)); United States v. Kennedy, 573 F.2d 657, 659 (9th Cir.1978) (noting length and scope of inquiry is limited by circumstances that prompted the stop). While this court has not previously addressed this issue independently under the Minnesota Constitution, we conclude that Article I, Section 10 of the Minnesota Constitution also imposes a reasonableness limitation on both the duration and the scope of a Terry detention. See State v. Munson, 594 N.W.2d 128, 135-36 (Minn. 1999) (holding that vehicle search supported by probable cause must nonetheless be reasonable in the scope of the search and detention of the suspects).

Here, the officer had determined a citation was not warranted, and the motorist would simply be issued a warning ticket. Thus, the seriousness of the offense being investigated was decidedly minor. See Moffatt, 450 N.W.2d at 119 (distinguishing investigation of burglary from that of petty offense in determining reasonableness of detention). We stress that the officer testified he did not suspect appellants were under the influence of anything, nor did he have any indication that they were transporting drugs. Rather, the officer appeared to have used the opportunity of a routine equipment violation, along with the availability of other officers to write a warning ticket, to conduct the dog sniff. We construe the reasonableness requirement of the Fourth Amendment and Article I, Section 10 of the Minnesota Constitution to limit the scope of a Terry investigation to that which occasioned the stop, to the limited search for weapons, and to the investigation of only those additional offenses for which the officer develops a reasonable, articulable suspicion within the time necessary to resolve the originally-suspected offense.

Thus, in order to lawfully conduct a narcotics-detection dog sniff around the exterior of a motor vehicle stopped for a routine equipment violation, a law enforcement officer must have a reasonable, artic-ulable suspicion of drug-related criminal activity. We believe this is the appropriate application of the search and seizure limitations in the federal and state constitutions to the facts of the case before us.

We turn then to the question whether the officers had a reasonable, ar-ticulable suspicion of drug-related criminal activity in this case. While the officer testified that Wiegand was evasive, nervous and had glossy eyes, the officer also testified that he did not conclude at the point that he determined to retrieve his dog that the driver was under the influence of anything. The officer simply noted that Wiegand was acting suspiciously, but indicated no reason to suspect drug-related activity. Under these circumstances, acting suspiciously is not an articulable basis to suspect criminal activity. See State v. Johnson, 257 N.W.2d 308, 309 (Minn.1977) (concluding that stop is illegal when officer unable to articulate what aroused suspicion). Therefore, we reverse the court of appeals and reinstate the district court’s order dismissing all charges against appellants.

Reversed.

PAGE, J.,

concurring and concurring specially.

I agree that the evidence in this case was properly suppressed, but I reach this result taking a different path. Since 1925, the United States Supreme Court has required probable cause before officers may conduct a warrantless search of an automobile. Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925). We have likewise consistently required probable cause to search a car without a warrant. See, e.g., State v. Schinzing, 342 N.W.2d 105, 110 (Minn.1983); State v. Coy, 294 Minn. 281, 286-87, 200 N.W.2d 40, 44 (1972).

The federal courts and this court avoid the force of this long-standing precedent by concluding that a dog sniff of a car is not a search. See City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000); United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The Court rationalizes the holding on the basis that “a sniff by a dog that simply walks around a car is ‘much less intrusive than a typical search.’ ” Edmond, 531 U.S. at 40, 121 S.Ct. 447 (quoting Place, 462 U.S. at 707, 103 S.Ct. 2637). I believe that the level of intrusion resulting from a dog sniff is significant and requires probable cause before the intrusion in permissible.

Common sense would lead one to conclude that privacy has been invaded when a drug-sniffing dog has been directed to search a person, her purse, or her vehicle. As a dissenting Ninth Circuit judge puts it:

When using dogs to ferret out contraband, the police are not simply walking around hoping to come across evidence of a crime. Instead, they are investigating. They are trying to find something. They are seeking evidence in hidden places. If this activity does not qualify as a “search,” then I am not sure what does.

United States v. Beale, 736 F.2d 1289, 1293 (9th Cir.1984) (Pregerson, J., dissenting). The dog is detecting something about the person that is not otherwise apparent on observation. As a consequence, privacy is invaded and the constitution demands protection.

The level of intrusiveness analysis used by the U.S. Supreme Court in dog-sniff cases is troublesome in another respect. Through technological advances, of which we have likely only scratched the surface, an officer can conduct a search that detects only criminal activity. The Court uses this fact to support the conclusion that no search requiring probable cause occurred in Place and Edmond, but I fail to see how what is detected makes the search any more or less reasonable. The Court stated recently in Kyllo, “The Fourth Amendment protection of the home has never been tied to measurement of the quality or quantity of information obtained.” 533 U.S. at 37, 121 S.Ct. 2038. I do not see how the search of a car or a person should be any different. An innocent person who has been subjected to a dog sniff has been searched and can take little comfort in the fact that the dog did not alert — the intrusion is complete regardless of what the dog smelled.

In Edmond, the Court also relied on the absence of physical intrusion into the car in a dog sniff. 531 U.S. at 40, 121 S.Ct. 447. However, the Court rejected the same lack of physical intrusion argument in Kyllo, where a search using infrared technology did not physically intrude into a home. 533 U.S. at 37-38, 121 S.Ct. 2038. The Court noted that, if the Court was guided by the lack of actual physical intrusion, the eavesdropping prohibited in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), would be permissible, along with many other kinds of intrusions. Kyllo, 533 U.S. at 35,121 S.Ct. 2038. Indeed, the Court rejected the laek-of-physical-intrusion argument as a “mechanical interpretation of the Fourth Amendment.” Id. Applying that same analysis here, the fact that a dog sniff does not physically intrude into the item being sniffed does not mean that it is not intrusive.

In the context of law enforcement techniques that enhance the senses, the Court also stated in Kyllo, “We think that 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 constitutes a search — at least where (as here) the technology in question is not in general public use.” 533 U.S. at 34, 121 S.Ct. 2038 (quotation and citation omitted). In this case, the sense-enhancing dog sniff, not in general public use, obtained information regarding the interior of the vehicle that could not have been obtained without physical intrusion — a physical intrusion that would otherwise require probable cause. See United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (holding search of automobile in absence of a warrant requires probable cause). Thus, if police could not physically intrude behind the insulation on the underside of the hood given the absence of suspicion of narcotics activity, they should not be allowed to employ a dog to accomplish the same objective.

I do not see a distinction between sense-enhancemenUby-technology and sense-enhancement-by-canine. The U.S. Supreme Court dismisses the intrusiveness of a dog search by labeling it “sui generis.” Place, 462 U.S. at 707, 103 S.Ct. 2637. This is convenient, but lacks any persuasive force given that the dog is used to detect the very thing the officers would look for themselves if the Fourth Amendment did not limit their ability to do so. The Court’s approach to the intrusiveness of sense-enhanced searches is inconsistent, at best.

In addition, as the court recognizes, an automobile is an “effect” under the Fourth Amendment, and therefore the constitutional standard of reasonableness applies to searches and seizures of automobiles. Cady v. Dombrowski, 413 U.S. 438, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); see also State v. Goodrich, 256 N.W.2d 506, 510 (Minn.1977). While we may expect preeminent privacy in the home, automobiles cannot be far behind on the continuum of privacy interests. For the very poor, a car often serves as a temporary or permanent home; for a majority of people, a car is a place where a portion of everyday life is spent. People carry on private phone and in-person conversations in cars. All cars have locks, and car burglar alarms proliferate. Cars are used to transport not only persons, but the many “effects” also encompassed within Fourth Amendment protection. Thus, distinct from luggage in an airport, about which little expectation of privacy remains (Place, 462 U.S. at 710, 103 S.Ct. 2637), a car should trigger significant protections against the invasion of privacy by the government conducting an investigation.

Given the privacy interests inherent in an automobile and what I perceive to be a lack of consistency in approach in U.S. Supreme Court cases, I would find adequate and independent grounds under the Minnesota Constitution to hold that privacy interests in an automobile require probable cause to suspect drug-related activity before a dog sniff may be conducted around the exterior of a vehicle. As the court notes, in two previous cases this court has concluded that Article I, Section 10, of the Minnesota Constitution provides greater protection from unreasonable searches and seizures than the Fourth Amendment. See Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 186 (Minn. 1994); In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn.1993). In addition, other states have departed from the U.S. Supreme Court interpretations of the federal constitution by holding that a dog sniff constitutes a search requiring reasonable suspicion under their state constitutions. See State v. Pellicci, 133 N.H. 523, 580 A.2d 710 (1990) (affirming conviction because investigative stop of vehicle was based on suspicion of controlled substances); People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054 (1990) (involving use of drug-sniffing dog in apartment building). Because, as set forth above, I believe there are reasonable expectations of privacy in an automobile, and that a dog sniff is an intrusive search, I would hold that an officer must have probable cause to believe that a vehicle contains narcotics before using a drug-sniffing dog to search the vehicle.

The effect of the majority’s conclusion that a dog sniff is not so intrusive as to amount to a search requiring probable cause is to strip from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), its limitations on the permissible methods of investigation. I agree with the majority that an investigation pursuant to a Terry stop must be limited in its purpose to investigating either the reason the vehicle was stopped or whether the stop poses a threat to officer safety. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (holding that, not only must the scope of an investigatory detention “last no longer than is necessary to effectuate the purpose of the stop,” but also, and separately, the stop “must be carefully tailored to its underlying justification.”); Terry, 392 U.S. at 29, 88 S.Ct. 1868 (holding search “must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer”). In this case, the dog sniff would not help the officers investigate further either the burned-out headlight or the presence of weapons. Thus, the court correctly holds that the investigation in this case was outside the permissible scope of an investigation pursuant to a Terry stop.

However, an investigation pursuant to a Terry stop must also be limited in its methods. As the U.S. Supreme Court has stated, “the investigative methods employed [in a Terry stop] should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Royer, 460 U.S. at 500, 103 S.Ct. 1319 (emphasis added). Therefore, by concluding that a dog sniff is not intrusive, the court allows law enforcement to use this method of investigation in & Terry stop even though less-intrusive means might verify or dispel the officer’s suspicion. To preserve the limited nature of methods of investigation pursuant to Terry, the court should reject the temptation to simply conclude that a search is not a search.

For this reason, I concur specially only in the judgment of reversal.

BLATZ, Chief Justice

(concurring and concurring specially).

I join in the concurrence and special concurrence of Justice Page.

      . It is Cloquet Police Department policy that, whenever there is a stop, all available units proceed to the scene for the safety of the officer involved.

      . The Court, however, affirmed suppression of the evidence on the basis that detention of the luggage for 90 minutes was unreasonable, in particular because the agents failed to inform the defendant-respondent where they were taking the luggage, the length of time he might be deprived of his luggage, and how he could retrieve it in the event the suspicion of narcotics was shown to be unfounded. Place, 462 U.S. at 709-10, 103 S.Ct. 2637.

      .The special concurrence relies heavily on Kyllo to conclude that a dog sniff is a search requiring probable cause. Kyllo, however, involved a search of the home using sense-enhancing technology. 533 U.S. at 29-30, 121 S.Ct. 2038. Throughout Kyllo the Court limited its decision to the home, and the Court explicitly distinguished searches of other areas. See id. at 34, 121 S.Ct. 2038. The Court also noted that the thermal-imaging device was a piece of technology with potential for greater sophistication. Id. at 38, 121 S.Ct. 2038. We are not faced with the issue of a dog sniff around a home, nor are we faced with an investigative technique involving a piece of technology with potential for dramatic technological advancements. We are faced with the issue of a dog sniff in a public place by a dog trained in narcotics detection, as the Court was in Place and in City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), and we draw our guidance from those decisions.

      . See, e.g., United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir.1985) (concluding that practice that is not intrusive in public airport may be intrusive when employed at person's home and holding that dog sniff of front door of apartment constituted search requiring probable cause).

      . The special concurrence states that "[a]n innocent person who has been subjected to a dog sniff has been searched.” However, our decision today is limited to a dog sniff around the exterior of a motor vehicle in a public place by a dog trained in narcotics detection. We do not decide whether a dog sniff of a person’s body requires a showing of reasonable, articulable suspicion or probable cause.
      While the special concurrence appears to recognize the varying levels of privacy interests in home, automobile, and body, the special concurrence nonetheless appears to conclude that a dog sniff, for any purpose and in any context, is a search requiring probable cause. The privacy protected by the Fourth Amendment is not only a subjective expectation of privacy, but also a level of privacy expectation that society is willing to deem reasonable under the circumstances. Oliver

        v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The bald conclusion by the special concurrence that "the level of intrusion resulting from a dog sniff is significant and requires probable cause before the intrusion” is not moored to society's expectations. While individual judges ultimately must give effect to the Fourth Amendment and society's expectations of privacy, we do not operate here on a blank slate — long-standing precedent establishes that the expectation of privacy in an automobile is diminished as compared to a home, Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), and the Court in Place held almost 20 years ago that a dog sniff was an extremely limited investigative method in terms of its intrusiveness. 462 U.S. at 707, 103 S.Ct. 2637. Thus, the permissibility of the use of dogs in other settings for other purposes must be evaluated based on whether the privacy expectation is one society is willing to deem reasonable, and not on subjective perceptions of the intrusiveness of the investigative method. Indeed, the approach that the special concurrence would have us take is troubling in that requiring probable cause for all dog sniffs has implications that go beyond drug detection and would implicate the accepted use of dogs to detect, for example, explosives.

      . In Edmond the Court held that a highway checkpoint program, whose primary purpose was the discovery and interdiction of illegal narcotics, violated the Fourth Amendment, because stopping the vehicles without probable cause for general crime control effectuates a seizure within the meaning of the Fourth Amendment and must be accompanied by some measure of individualized suspicion. See 531 U.S. at 40-42, 48, 121 S.Ct. 447. In response to an argument premised on Place, the Court stated that the fact that officers walked a narcotics-detection dog around the exterior of each car did not transform the seizure into a search. Id. at 40, 121 S.Ct. 447.

      . In Hodari D. the Court concluded that a seizure of a person occurs only when police use physical force to restrain a person or, absent that, when a person submits to a show of authority by the police. 499 U.S. at 625-26, 111 S.Ct. 1547. By contrast, in Minnesota a seizure occurs when a reasonable person would believe he or she was not free to leave. E.D.J., 502 N.W.2d at 783.

      . The special concurrence acknowledges that federal law would not require probable cause here and so, would decide this case based on the Minnesota Constitution. The ease with which the special concurrence resorts to the Minnesota Constitution is troubling. In our decision in Fuller, 374 N.W.2d at 726, we acknowledged that state courts are the first line of defense for individual liberties within the federalist system. However, we do not resort to the Minnesota Constitution whenever we simply would have decided the matter differently. The special concurrence rests primarily on its own perception that a dog sniff is sufficiently intrusive to require probable cause, and does not indicate how the history of our constitution or common law mandates a different result under the Minnesota Constitution. See Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv. L.Rev. 1324, 1360-61 (1982) (unique state considerations such as the common law, tradition, policy, or distinct constitutional rights may support results that diverge from federal standards).

      . While, as the special concurrence notes, two states have relied on their state constitutions in the context of dog sniffs, those courts have applied the reasonable suspicion standard, as the concurrence also recognizes. See State v. Pellicci, 133 N.H. 523, 580 A.2d 710, 716-17 (1990); People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054, 1058-59 (1990). Thus, neither the special concurrence nor appellants have pointed to any state or federal court that has required probable cause for the use of a drug-sniffing dog on a vehicle, whether based on the U.S. or a state constitution.

      . Other courts have recognized a limit to the authority of law enforcement to pursue even limited investigative techniques and held that the Fourth Amendment was violated when a dog sniff was conducted under certain circumstances. See, e.g., Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333; United States v. Winningham, 140 F.3d 1328 (10th Cir. 1998) (holding that drug dog's leap into interior of van and subsequent alert to narcotics within scope of Fourth Amendment because officer facilitated dog's conduct); United States v. Fifty-Three Thousand Eighty-Two Dollars in U.S. Currency, $53,082.00, 985 F.2d 245 (6th Cir.1993) (reasoning in civil forfeiture action that claimants had reasonable expectation of privacy in items carried on their persons such that probable cause was necessary to justify seizure and dog sniff of cash found on claimants at airport); Thomas, 757 F.2d at 1366-67 (holding that dog sniff conducted to detect drugs outside apartment door in the absence of a search warrant was illegal search); United States v. Kirkpatrick, 5 F.Supp.2d 1045 (D.Neb.1998) (holding evidence suppressed because officer had no reasonable suspicion to support detention and expansion of traffic stop).

      . The special concurrence agrees with our analysis of Terry and our conclusion that the investigation in this case was outside the permissible scope of an investigation pursuant to a Terry stop, yet then asserts that an investigation pursuant to a Terry stop must also be limited in its methods. Because we decide that the investigation was impermissible in its scope, we do not reach the issue of whether it also exceeded permissible limits under Terry in its methods.

      . Given the long-standing precedent establishing a privacy interest in automobiles, the conclusion that the dog sniff in this case requires probable cause is not based on "subjective perceptions of the intrusiveness of the investigative technique,” as suggested by the court. My conclusion reflects the fact that in the privacy area, judges cannot blindly follow precedent, but must make a judgment of what is reasonable based on assessments of societal expectations. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn.1998) (recognizing for the first time a tort for invasion of privacy). This is the first opportunity this court has had to address the intrusiveness of a dog sniff of a car stopped for an equipment violation, and the assessment of societal expectations in this context is thus one of first impression.

      . Indeed, it seems that even the most limber legal reasoning cannot avoid what is obvious to most people, including the state. This point is demonstrated by a brief recently submitted by the state in State v. Litzau, No C3-00-2099, 2001 WL 1464306, (Minn.App.), rev. granted (Minn. Jan. 29, 2002). In this brief, the state repeatedly referred to the use of a German Shepherd to sniff a car as "a search”:
      Chief Schmidt arrived just as [Officer] Abbott was asking appellant if they could search his car. Chief Schmidt brought his partner Max, a 90-lb. German Shepherd trained in the detection of narcotics. Chief Schmidt and Max began their search at the rear of appellant's vehicle and moved toward the front.
      Brief for Respondent at 6, Litzau, No C3-00-2099, 2001 WL 1464306, (Minn.App.), rev. granted (Minn. Jan. 29, 2002) (emphasis added). Thus, the court’s decision today is reminiscent of the make-believe world of Alice in Wonderland. As she said, "If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrariwise, what it is, it wouldn't be, .and what it wouldn't be, it would.” Alice in Wonderland (Walt Disney Pictures 1951).


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Heidi H. CRISSEY, an Attorney at Law of the State of Minnesota.
    No. C1-01-1799.
    Supreme Court of Minnesota.
    June 13, 2002.
    Edward J. Cleary, Director, Office of Lawyers Professional Responsibility, Mary L. Galvin, Assistant Director, St. Paul, MN, Petitioner’s Attorney.
    Heidi H. Crissey, Lake Elmo, MN, Respondent’s Attorney.
   OPINION

PER CURIAM.

Respondent Heidi H. Crissey has been licensed to practice law in Minnesota since May 11, 1984. The Director of the Office of Lawyers Professional Responsibility (OLPR) served charges of unprofessional conduct on respondent pursuant to Rule 9(e), Rules on Lawyers Professional Responsibility (RLPR). Respondent appeared for a prehearing meeting on December 22, 2000, but following the meeting failed to sign and return the prehearing statement and thereafter failed to otherwise cooperate with the OLPR.

The OLPR then brought a notice of motion and motion requesting the Lawyers Professional Responsibility Board Panel Chair (“Panel Chair”)’s approval to file a petition for disciplinary action based on respondent’s flagrant noncooperation pursuant to Rule 10(d), RLPR. The Panel Chair granted the motion and authorized the petition for disciplinary action. On October 11, 2001, the OLPR personally served respondent with the petition for disciplinary action. The notice and petition were filed with this court on October 18, 2001. Respondent failed to serve or file an answer to the petition. On November 6, 2001, the OLPR served and filed a motion for summary relief pursuant to Rule 13(b), RLPR. On November 15, 2001, we granted the motion, and thus, the allegations of the petition are deemed admitted and the following facts are not in dispute.

In September 1997 a client retained respondent to represent him. In February 1998 respondent was diagnosed with cancer and received treatment through the spring of 1999. Respondent failed to inform the client that because of a medical condition she was unable to work on the case. She took no action on his case and despite his numerous inquiries failed to keep him informed as to the status of his case. When the client retrieved his file in 1999, the file’s condition indicated that respondent had done no work on the matter; however respondent claimed she did make some personal notations in the file which she withheld and to date has failed to provide to the OLPR despite its request that she do so. Respondent has also failed to refund the fees paid by the client; while she has indicated a willingness to do so “minus a token amount” for time she allegedly spent on collateral matters, she alleges that financial difficulties prohibit her from doing so at this time.

In addition to her unprofessional conduct in the client matter, respondent has failed to cooperate with the OLPR’s investigation of that matter. The OLPR sent respondent several letters between December 1999 and September 2000 requesting that she provide copies of the materials which respondent failed to return to the client with the rest of the file; respondent failed to respond to all of those letters. Respondent did not attend a scheduled meeting with the OLPR in September 2000. Once charges were filed against respondent she attended a prehearing conference with the OLPR in December 2000 but subsequently failed to execute and return a prehearing statement despite multiple requests from the OLPR to do so. She also failed to attend meetings with the OLPR in May and June of 2001. Respondent failed to respond to the OLPR’s letters to schedule a panel hearing in August 2001. The Panel Chair granted the OLPR’s motion to bypass the panel hearing due to respondent’s flagrant noncooperation. See Rule 19(d), RLPR. The panel hearing bypass motion was heard by telephone on August 8, 2001, the day before the panel hearing was scheduled to take place. During the telephone motion, respondent admitted she would not appear for the panel hearing. The Panel Chair then approved filing of the petition for disciplinary action to this court. Following a telephone conversation with respondent on August 13, 2001, the OLPR sent her a proposed stipulation of discipline in this case, and the petition for disciplinary action accompanied by an admission of service by mail.

The OLPR filed a petition for disciplinary action on October 18, 2001. The delay in filing was caused by respondent’s failure to execute and return the admission of service by mail, or to accept the OLPR’s initial attempts at personal service. Personal service was ultimately obtained on October 11, 2001, and thus respondent’s answer was due by October 31, 2001. Respondent did not respond. On November 6, 2001, the OLPR moved for summary relief and on November 15, 2001, this court ordered the allegations of the petition be deemed admitted pursuant to Rule 13(b), RLPR.

Respondent’s misconduct includes neglecting a client, failing to keep a client adequately advised, charging an unreasonable fee, failing to make repayment of unearned fees, failing to return client property, and failing to cooperate in a disciplinary proceeding. Respondent’s conduct in the client matter violates Minn. R. Prof. Conduct 1.3, 1.4, 1.5, 1.16(d). Respondent’s conduct in failing to cooperate with the disciplinary investigation and process constitutes a violation of Minn. R. Prof. Conduct 8.1(a)(3).

In a letter to this court filed in December 2001, respondent agreed that indefinite suspension is the appropriate discipline in this case, but asks that we not make this disciplinary matter public. The letter states that she did not sign and return the proposed stipulation agreeing to that very discipline because the stipulation failed to mention her medical problems and because the matter would be made public.

I.

This court has final responsibility to determine appropriate sanctions in attorney discipline cases. In re Perry, 494 N.W.2d 290, 293 (Minn.1992); In re Isaacs, 406 N.W.2d 526, 529 (Minn.1987). To determine the appropriate sanction for violating professional conduct rules, we consider the nature of the misconduct, the cumulative weight of the rule violations and the harm to the public and legal profession. Id. at 292-93. Guidance comes from discipline imposed in similar cases, In re Campbell, 603 N.W.2d 128, 132 (Minn. 1999), however “each case is unique and must be examined on its own facts.” In re Dvorak, 554 N.W.2d 399, 403 (Minn.1996).

In the past we have concluded that an attorney’s neglect of a client matter, lack of communication, failure to account for a client’s funds, and failure to cooperate with the disciplinary investigation or proceedings warrants an indefinite suspension. See In re Pucel, 588 N.W.2d 741, 743 (Minn.1999). In Pucel, the attorney committed misconduct that included neglecting a client matter, failing to return that client’s unearned retainer, and failing to cooperate with the OLPR’s investigation. Pucel, 588 N.W.2d at 743. Pucel was indefinitely suspended. Id. at 741-43. We also consider that here, a Lawyers Professional Responsibility Board Panel privately admonished respondent in 1991 for unprofessional conduct.

In light of the purposes underlying our attorney discipline system — to protect the public, the legal profession, and to guard the administration of justice, see In re Madsen, 426 N.W.2d 434, 436 (Minn. 1988) — we must regulate the legal profession in view of the public and therefore cannot grant respondent’s request that this matter be kept private. Had respondent cooperated with the OLPR’s investigation between 1999 and 2001 perhaps a private resolution could have been reached, but once a petition for discipline is filed with this court the matter is public.

II.

Based on respondent’s admission that indefinite suspension is the appropriate sanction in this case and on respondent’s misconduct, we order that respondent Heidi H. Crissey be indefinitely suspended from the practice of law pursuant to Rule 15(a)(2), RLPR, and that she comply fully with the requirements of Rule 26, RLPR. We waive the requirement that respondent pay to the OLPR the sum of $900 in costs and disbursements. See Rule 24, RLPR.

So ordered.