author: HANSON, Justice. PAGE, Justice BLATZ, Chief Justice ANDERSON, Russell A.,'

text:
    STATE of Minnesota, Respondent, v. Andre Lashon CARTER, Appellant.
    No. A03-1215.
    Supreme Court of Minnesota.
    June 9, 2005.

      John M. Stuart, State Public Defender, Theodora Karin Gaitas, Assistant Public Defender, Rachel Foster Bond, Special Assistant Public Defender, Faegre & Benson, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
   OPINION

HANSON, Justice.

In this appeal from a conviction of unlawful possession of a firearm, we consider what level of suspicion must precede police use of a drug-detection dog to sniff outside a bank of storage units within a fenced self-storage facility. The district court denied the motion of appellant Andre Lashon Carter to suppress the evidence of a firearm discovered when police, acting pursuant to a search warrant that was based in large part on the results of a dog sniff, searched his rented storage unit. The court of appeals affirmed, holding that the dog sniff was not a “search” because appellant had no expectation of privacy in the “semi-public” area outside his unit. Although we conclude that the dog sniff was not a “search” within the meaning of the Fourth Amendment to the United States Constitution, we hold that the dog sniff was a “search” within the meaning of Article I, Section 10 of the Minnesota Constitution. Because the governmental interest in the use of drug-detection dogs to aid law enforcement is significant, we hold that a dog sniff is an unreasonable search unless police have at least reasonable, articulable suspicion of criminal activity before conducting it. And because the police did not have such suspicion here, and there was no probable cause to issue the warrant without the results of the dog sniff, we reverse appellant’s conviction and grant a new trial.

On June 10, 2002, a Saint Paul police officer arranged for a drug-detection dog to “sniff’ outside a bank of storage units within a fenced self-storage facility. The dog sniff at Secure Mini Storage occurred approximately 4 weeks after a Minnesota Bureau of Criminal Apprehension (BCA) agent had observed what he believed to be suspicious activity at the facility. According to the agent, a white car bearing no license plates had entered the facility, left, and then re-entered as the female driver stared at police officers who were dressed in “raid gear.” The agent believed that the driver was scouting or surveying the officers. The agent also observed that a blue sports-utility vehicle left the fenced storage facility at the same time as the white car. The SUV displayed license plates registered to appellant’s brother, Benjamin Carter.

The agent relayed information about his suspicions to a Saint Paul police officer, who recognized Benjamin Carter’s name from a drug-related investigation. The Saint Paul officer then consulted with Secure Mini- Storage’s manager, who said that Benjamin Carter and appellant each rented two units at the facility and sometimes visited their units several times a day. The Saint Paul officer then arranged for the June 10, 2002, dog sniff, apparently after securing permission from the facility’s management to enter the fenced area immediately outside of appellant’s units. The dog indicated that a controlled substance was inside, one of those units.

Later that day, the Saint Paul officer applied for two search warrants — one for appellant’s storage unit, the other for his home. The warrant applications did not identify the Secure Mini Storage manager by name, did not specify the dates when the manager was interviewed or- when the BCA agent observed the suspicious activities, and did not explain why 4 weeks had elapsed between the suspicious activities and the sniff. The applications did allege that the Carters were gang members and-had prior convictions for drug offenses— two convictions for appellant in 1995 and 1997, and one for Benjamin in 1995. The applications also indicated that appellant had been- convicted of possessing a pistol without a permit in 1995, and had three arrests, apparently not resulting in convictions, in 1994 and 1998. The warrant applications also referenced four arrests for Benjamin Carter from 1998 to 2001. Finally, as to the dog sniff, the applications stated that a dog “certified at narcotics detection * * * [had] indicated the presence of controlled substance from storage locker # 2504,” which was one of the units appellant rented.

A Ramsey County district judge signed the search warrant for the storage unit, authorizing seizure of, among other things, controlled substances - and firearms; the judge also signed the search warrant for appellant’s home, authorizing seizure of “keys which may be used to facilitate the distribution of controlled substances,” financial records, documents, mail, and gang-membership indicia.

The next day, police officers first executed the warrant at appellant’s home and seized a clear bag with a substancé sus-peeted to be cocaine, a scale, $692’in currency, undeveloped film, a can of Mace, and various keys and documents. Appellant was arrested at his home and taken to the Ramsey County jail. Later that morning, police officers executed the warrant at appellant’s storage unit, where they seized two firearms, ammunition, and a nylon bag containing a stocking hat. No drugs were found. -

Based on the firearms and ammunition seized from the storage unit, appellant was charged with illegal possession of a firearm under Minn.Stat. § 624.713, subds. 1(b) and 2, and § 609.11, subd. 5(b) (2004). He brought a motion to suppress the firearms and ammunition, arguing that police officers lacked the suspicion required to conduct a dog sniff outside his storage unit and, without the results of the dog sniff, lacked probable cause to support the warrant. Appellant cited State v. Wiegand, 645 N.W.2d 125 (Minn.2002), where we held that a police officer performing a traffic stop for a routine equipment violation must have reasonable, articulable suspicion of drug-related criminal activity before using a drug-detection dog to sniff the automobile’s exterior.

The district court denied the motion to suppress, ruling that the results of the dog sniff, appellant’s criminal record, and his alleged frequent visits to the storage facility provided the “substantial basis” for probable cause needed to support a search warrant. See, e.g., State v. McBride, 666 N.W.2d 351, 360 (Minn.2003) (court reviewing another magistrate’s issuance of search warrant ensures “that the court had a substantial basis for concluding that probable cause existed”). The district court did not rule on whether probable cause existed apart from the results of the dog sniff. On April 21, 2003, appellant was convicted and sentenced to 60 months in prison.

The court of appeals affirmed appellant’s conviction. The court held that the reasonable suspicion requirement in Wiegand did not apply because it was confined to situations where police officers attempt to “expand the scope or duration of an investigative stop beyond the investigation of an equipment violation, that was the cause for the stop.” State v. Carter, 682 N.W.2d 648, 652 (Minn.App.2004). The court concluded that appellant had no- reasonable expectation of privacy in the “semi-public” area immediately outside the storage unit and, therefore, that the dog sniff in that area was not a search.

We granted review on the issue of what level of suspicion "must precede a drug-detection dog sniff of an area outside a self-storage unit.

I.

First, we examine whether evidence other than the results of the dog sniff provided a substantial basis for probable cause supporting the warrant for the storage-unit search. If there was independent probable cause, we would affirm appellant’s conviction and save the constitutional questions concerning the dog sniff for another day. State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981) (deferring the constitutional issue because conviction was reversed on other grounds); In re Senty-Haugen, 583 N.W.2d 266, 269 n. 3 (Minn.1998) (“It is well-settled law that courts should not reach constitutional issues if matters can be resolved otherwise.”).

When examining whether a search was supported by probable cause, the ultimate question is whether there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A district court’s decision to issue a search warrant is reviewed for “whether the issuing judge had a substantial basis for concluding that probable cause existed.” State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001). Because we examine the totality of the circumstances, “a collection of pieces of information that would not be substantial alone can combine to create sufficient probable cause.” State v. Jones, 678 N.W.2d 1, 11 (Minn.2004). Nonetheless, in examining the issuing judge’s basis for finding probable cause, we look only to information presented in the affidavit and not to information that the police possessed but did not present in the affidavit to determine whether there were “specific facts to establish a direct connection between the alleged criminal activity and the site to be searched.” State v. Souto, 578 N.W.2d 744, 749 (Minn.1998).

The application for the search warrant for the storage units listed three factors besides the results of the dog sniff to support probable cause for the search: (1) appellant’s criminal record, (2) a BCA agent’s observations and suspicions from approximately 4 weeks earlier, and (3) a statement from the Secure Mini Storage manager regarding appellant’s rental of and frequent visits to his storage units.

A person’s criminal record is among the circumstances a judge may consider when determining whether probable cause exists for a search warrant. See United States v. Conley, 4 F.3d 1200, 1207 (3d Cir.1993), cert. denied, 510 U.S. 1177, 114 S.Ct. 1218, 127 L.Ed.2d 564 (1994). Courts also occasionally consider arrests not resulting in conviction, as when the arrest “involves a crime of the same general nature as the one which the warrant is seeking to uncover.” Id. But a criminal record, even a “long” one, is best used as “corroborative information” and not as the sole basis for probable cause. See State v. Conaway, 319 N.W.2d 35, 41 (Minn.1982). Convictions that are several years old are less reliable in providing a “fair probability” that contraband will be found in a place to be searched. See State v. Modesten, 507 N.W.2d 842, 847 (Minn.1993) (stating that a 7-year-old conviction for robbery did not support probable cause for search in connection with current robbery).

Appellant’s most recent conviction, on May 1, 1997, was for possession of a controlled substance with intent to distribute. It occurred more than 5 years before the search warrant application. Appellant had one other drug-related conviction, in 1995, for possessing cocaine. His other conviction on April 17, 1995, was for possessing a pistol without a permit. In 1998, he was arrested for possessing cocaine and possessing a firearm as a felon, but he was not convicted of the charges. On October 6, 2001, a Saint Paul police officer, investigating gunshots fired at a gas station, stopped appellant’s vehicle but did not arrest him. Taken as a whole, we conclude that appellant’s criminal record does not provide probable cause for the search of the storage unit for drugs and weapons.

Next, we examine the BCA agent’s observations and suspicions' from 4 weeks before the search warrant application. The application for the storage-unit warrant failed to specify that the two vehicles considered suspicious by the BCA agent either entered or left the storage facility together. After appellant was charged, the Saint Paul police officer who signed the application for the search warrant testified at a Rasmussen hearing that he had been told by the BCA agent that the vehicles left “together,” but that testimony is irrelevant to our analysis because it was not known by the judge- at the time the warrant was issued. See State v. Rosenthal, 269 N.W.2d 40, 42 (Minn.1978). We conclude that the BCA agent’s suspicions do not provide probable cause.

Finally, we examine the storage facility manager’s statement as to appellant’s rental of and frequent visits to his storage units. Statements from 'citizen witnesses may provide a basis for probable cause when the witness is credible. Jones, 678 N.W.2d at 11; State v. Siegfried, 274 N.W.2d 113, 115 (Minn.1978). In addition, the “freshness of the information” provided by the witness is an important factor for determining the probability that contraband or evidence of a crime will be found in- a particular place. Souto, 578 N.W.2d at 747.

Assuming that the manager’s observations are reliable, it is unclear whether the information she provided regarding appellant’s frequent trips to his storage units was “fresh.” The application for the search warrant did not state when the manager provided the information or when appellant was observed to have frequently visited the storage facility. Further, there was no explanation in the warrant application as to why 4 weeks elapsed between the BCA agent’s initial suspicions and the application for the search warrant. Finally, there may be many legitimate reasons to visit a storage unit frequently. Without more, the mere fact of frequent visits to a storage unit does not provide evidence of the “fair probability” that contraband is inside. See Gates, 462 U.S. at 238, 103 S.Ct. 2317.

' As we have said, our totality-of-the-eircumstances approach permits us to find probable'cause among several factors when one factor standing alone does not provide a substantial basis for supporting a search warrant. Jones, 678 N.W.2d at 11. Still, there must be a “direct connection” between the factors and the site to be searched. Souto, 578 N.W.2d at 747. We cannot say that appellant’s criminal record, the report of his frequent visits to his storage units, and his relationship with his brother provide a connection supporting probable cause to search his storage unit.

We hold that if the results of the dog sniff are excluded from, the application for the search warrant, the remaining statements do not provide a “substantial basis” for probable cause supporting issuance of the warrant. Accordingly, we must necessarily determine the issue of whether the results of the dog sniff could be used to support the application for a search warrant.

II.

We next consider whether a dog sniff outside a self-storage unit is a search under the Fourth Amendment to the United States Constitution. The Fourth Amendment ensures “[t]he right of the people to be secure in.their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The right arises only when a person has a legitimate expectation of privacy in the place in question. United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the United States Supreme Court suggested that the question of whether a dog sniff is a search depends in part on the level of the person’s expectation of privacy in the place where the dog sniff occurs, and in part on the level of intrusiveness of the dog sniff. The Court held that because a traveler’s expectation of priyacy in a public airport is limited, and a trained drug-detection dog sniff is only minimally intrusive, a dog sniff of a traveler’s luggage in a public place was not a search under the Fourth Amendment. 462 U.S. at 707, 103 S.Ct. 2637. The Court acknowledged that a person has a reasonable expectation of privacy in luggage contents, but held that there is no such expectation in scents that may be detected at the luggage’s exterior. Id.

As for the intrusiveness of a dog sniff, the Supreme Court observed that a dog sniff “discloses only the presence or absence of narcotics.” Id. A dog sniff was described 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. This reliance on the limited intrusiveness of a drug-detection dog sniff was reaffirmed in City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), where the Court held that a dog sniff of a vehicle at a traffic checkpoint was not a search because it “does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics.”

We employed the Place-Edmond rationale in Wiegand where we held that a drug-detection dog sniff of a vehicle stopped for a routine equipment violation was not a search under the Fourth Amendment. 645 N.W.2d at 131. We concluded that significant governmental regulation of automobiles and the fact that automobiles generally do not “serve as the repository of personal effects,” meant that the driver of an automobile has a limited expectation of privacy in the automobile. Id. (citing South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974)).

Place and Edmond were decided before Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), where the warrantless use of a thermal-imaging device on a home suspected of containing heat-emitting lamps commonly used to grow marijuana was held to be a search in violation of the Fourth Amendment. Kyllo, 533 U.S. at 40, 121 S.Ct. 2038. Appellant argues that Kyllo effectively overruled Place and Edmond. Appellant also suggests that a drug-detection dog is similar to the “sense-enhancement technology * * * not in general public use” that was held impermissible in Kyllo, in part because the technology provided details that “previously have been unknowable without physical intrusion.” See Kyllo, 533 U.S. at 34, 121 S.Ct. 2038. But we rejected the same arguments in Wiegand, where we observed that a thermal imager is “a piece of technical equipment much different from a dog.” Wiegand, 645 N.W.2d at 130. We also distinguished Kyllo because it involved a’home, where a person’s expectations of privacy are most heightened. We observed:

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.

Wiegand, 645 N.W.2d at 130.

Recently, in Illinois v. Caballes, 543 U.S. -, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), the Supreme Court confronted a situation similar to that in Wiegand. The Court emphasized its view that a drug-detection dog sniff is only minimally intrusive, deciding that the dog sniff of a vehicle lawfully seized on a public roadway “ ‘generally does not implicate legitimate privacy interests’ ” under the Fourth Amendment because it “does not expose noncontraband items that otherwise would remain hidden from public view.” Caballes, 125 S.Ct. at 838 (quoting United States v. Place, 462 U.S. at 707, 103 S.Ct. 2637). The Court specifically determined that Kyllo is “entirely consistent” with Place. Caballes, 125 S.Ct. at 838. The Court observed that while a heat-sensory device is “capable of detecting lawful activity” inside a house, a dog sniff “reveals no information other than the location of a substance that no individual has any right to possess.” Id. The Court 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. Id.

The Supreme Court has not addressed the precise question presented here, whether a drug-detection dog sniff outside of a storage unit is a search under the Fourth Amendment. All of the state and lower federal court decisions that have addressed that issue have concluded that a dog sniff outside a storage unit is not a search under the Fourth Amendment. Those courts generally rely on two factors — that one who rents a storage unit has a limited expectation of privacy in the area immediately outside that unit and that a dog sniff for contraband is of limited intrusiveness. For example, in People v. Wieser, the Colorado Supreme Court held that a- dog sniff outside a storage unit “does not expose noncontraband items that otherwise would remain hidden from public view.” 796 P.2d 982, 985 (Colo.1990). In State v. Slowikowski, the Oregon Supreme Court also held that a dog sniff outside a storage unit is not a search because the odors detected “were all entirely outside the locker, where anyone who tried could have detected them.” 307 Or. 19, 761 P.2d 1315, 1320 (1988). Appellant has not cited a case in which a dog sniff outside a self-storage unit was held to be a search under the Fourth Amendment, nor has our research revealed one.

Appellant argues that the privacy interest in a self-storage unit is greater than that in an automobile and is comparable to that in a home. We agree that the privacy interest in an area outside a fixed structure such as a storage unit is greater than that outside a mobile but temporarily stopped automobile. Unlike an automobile, a storage unit is not subject to substantial governmental regulation and is designed specifically for the purpose of storing personal effects in a fixed place. Compare Wiegand, 645 N.W.2d at 131. In addition, appellant’s privacy interest at the time of the dog sniff was perhaps greater than in Wiegand, where the motorist already had been stopped for lawful reasons.

But we conclude that the expectation of privacy under the Fourth Amendment is less for a storage unit than for a home. See, e.g., State v. Carter, 569 N.W.2d 169 (Minn.1997) (holding that a police officer who left a sidewalk, climbed over bushes and peered through a gap in a home’s blinds to observe drug-related activity performed search under Fourth Amendment), rev’d on other grounds, 525 U.S. 83, 119 5.Ct. 469, 142 L.Ed.2d 373 (1998). Under the rationale followed in Kyllo and Ca-balles for purposes of the Fourth Amendment, a person’s expectation of privacy in a storage unit is limited because the unit is not a place where a person seeks refuge or conducts frequent personal activities. Compare State v. Larsen, 650 N.W.2d 144, 149 (Minn.2002) (holding that warrantless entry into ice-fishing house violated Fourth Amendment because the structure is “erected and equipped to protect its occupants from the elements and often provid[es] eating, sleeping, and other facilities”).

Our interpretation of the decisions of the Supreme Court and of the other courts that have considered the question leads us to conclude that a drug-detection dog sniff in the area immediately outside a self-storage unit is not a search under the Fourth Amendment.

III.

Appellant urges us to hold that a dog sniff outside a self-storage unit is nevertheless a search under Article I, Section 10 of the Minnesota Constitution, which is textually identical to the Fourth Amendment to the United States Constitution. In the alternative, he asks us to extend the holding of Wiegand to storage units, to require that police officers have a reasonable, articulable suspicion of criminal activity before performing a dog sniff. We note that Wiegand concluded that the dog sniff was not a search but that reasonable, articulable suspicion was required because the vehicle had been “seized” in the traffic stop. Wiegand, 645 N.W.2d at 133, 135. In the absence of a seizure, the protections of Article I, Section 10 of the Minnesota Constitution do not extend to appellant unless we determine that the dog sniff was a search. Accordingly, we must determine whether there are significant reasons why the definition of a search should be broader under the Minnesota Constitution than we perceive it to be under the United States Constitution.

We are free to offer protections under the Minnesota Constitution that are greater than those under the United States Constitution. Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). But we will not do so cavalierly. Wiegand, 645 N.W.2d at 132. Because language used in the Fourth Amendment and Article I, Section 10 of the Minnesota Constitution is identical, we consider the decision of the Supreme Court to be of “inherently persuasive, although not necessarily compelling, force.” Wiegand, 645 N.W.2d at 132.

Courts in Pennsylvania and Alaska have examined the question that we confront and have determined that, although the dog, sniff of a storage unit was not a search under the Fourth Amendment to the United States Constitution, it was a search under the comparable provisions of their state constitutions. Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74, 78-79 (1987); McGahan v. State, 807 P.2d 506, 510 (Alaska Ct.App.1991) (extending previous holding that a dog sniff of luggage was a search under state constitution). These courts relied in part on persuasive arguments by Professor Wayne R. LaFave, who cautions against “totally unrestrained” use of dogs in law enforcement because of the growing recognition that dogs can provide “false alerts.” Johnston, 530 A.2d at 79 (citing 1 Wayne R. LaFave, Search and Seizure § 2.1(e), at 315 (2d ed.1987)); McGahan, 807 P.2d at 510-11 (citing 1 LaFave, § 2.2(f), at 372).

We are persuaded by the decisions of the courts in Alaska and Pennsylvania and our own Minnesota constitutional precedents that there are good reasons to guard against a police officer’s random use of a drug-detection dog to sniff in the area immediately outside of a person’s storage unit, absent some level of suspicion of drug-related activity. We reach this conclusion by considering the strength of the expectation of privacy in a self-storage unit and the degree of intrusiveness of a drug-detection dog sniff in the area immediately outside that unit.

We conclude that a person’s expectation of privacy in a self-storage unit is greater for the purpose of the Minnesota Constitution than it has been determined to be under the Fourth Amendment. This is particularly true of storage units like appellant’s that are equivalent in size to a garage and are large enough to contain a significant number of personal items and even to conduct some personal activities. Unlike an automobile or luggage, the dominant purpose for such a unit is to store personal effects in a fixed location.

We are mindful that a person’s expectation of privacy in a self-storage unit does not extend to that which can be plainly seen or smelled from the area immediately outside the unit. But we consider the smell of that area to be “plain” only if a person is capable of detecting it. Stated another way, a renter of such a 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. But the renter need not expect that police will be able to bring to that area drug-detecting dogs that can detect odors that no person could detect. Such dogs do not enable a police officer to smell the odor, but instead, as in Kyllo, provide information to the police officer that was “previously * * * unknowable without physical intrusion.” Kyllo, 533 U.S. at 40, 121 S.Ct. 2038.

We conclude that the sniff of a drug-detection dog outside appellant’s storage unit was a search for purposes of the Minnesota Constitution.

IV.

The conclusion that a dog sniff outside a self-storage unit is a search under the Minnesota Constitution requires us to consider what level of police suspicion is required before such a search will be considered reasonable when made without a warrant. Although the typical standard for suspicion necessary to support a war-rantless search is probable cause to believe that a crime has been committed, we are persuaded by the reasoning of other courts and legal scholars that the standard of reasonable, articulable suspicion should also be considered in the process of balancing a person’s privacy interests against the public’s interest in effective criminal investigations.

The Alaska and Pennsylvania courts both have adopted a reasonable, articula-ble suspicion standard for the deployment of drug-detecting dogs to sniff outside a storage unit. In McGahan, the Alaska Court of Appeals held that “Alaska’s more stringent protection of its citizens’ privacy interests can still be assured if the reasonable suspicion standard is applied to canine searches of areas of public access exterior to commercial buildings.” 807 P.2d at 510-11. Similarly, the Pennsylvania Supreme Court held that requiring police officers to articulate “reasonable grounds” before undertaking a dog-sniff search of a storage unit presents a workable constitutional “middle ground” that balances a person’s expectation of privacy against the government’s interest in using dogs to detect illegal drugs. Johnston, 530 A.2d at 79. We commend the Pennsylvania court’s observation that

[o]n the one hand, 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; but on the other, it is our view that a free society will not remain free if police may use this, or any other crime detection device, at random and without reason.

Id.

We recognize that the government has a significant interest in the use of drug-detection dogs in aid of law enforcement. For that reason, we adopt the holding of the Pennsylvania Supreme Court:

[A] narcotics detection dog may be deployed to test for the presence of narcotics [in the area outside a storage unit] where:
1. the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and
2. the police are lawfully present in the place where the canine sniff is conducted.

Id.

Because police did not articulate reasonable suspicion that drugs were present in appellant’s storage unit, we hold that the deployment of a drug-detection dog was an unreasonable search under the Minnesota Constitution; that the evidence resulting from the dog sniff was unlawfully obtained and must be suppressed; that the application for a warrant to search the storage unit was not otherwise supported by probable cause; and that, accordingly, the evidence seized during the search of the storage unit was unlawfully obtained and must be suppressed. Because the error in admitting the seized evidence was prejudicial to appellant, we reverse his conviction and remand for a new trial.

Reversed and remanded.

ANDERSON, G. BARRY, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

Concurring specially, PAGE, J. and BLATZ, C.J.

Dissenting, ANDERSON, RUSSELL A, J.

Took no part, ANDERSON, G. BARRY, J.

PAGE, Justice

(concurring specially).

I concur in the result reached by the court, but write separately to voice my disagreement with the court’s holding that the police need only reasonable, articulable suspicion before conducting a dog sniff outside a storage unit. As articulated in my special concurrence in State v. Wiegand, 645 N.W.2d 125, 137-40 (Minn.2002), I believe that probable cause, instead of reasonable, articulable suspicion, is the proper standard for dog sniff cases. In Wiegand, the location of the dog sniff was a motor vehicle. Here, it was the outside of a storage unit within a secure facility. Obviously, the privacy interest is more prominent in this case. As' the court notes, “the privacy interest in an area outside a fixed structure such as a storage unit is greater than that outside a mobile but temporarily stopped automobile.” Given this more prominent privacy interest, a search warrant based on anything less than probable cause impermissibly erodes the protections of Article I, Section 10, of the Minnesota Constitution. State v. Pietraszewski, 285 Minn. 212, 216, 172 N.W.2d 758, 762 (1969) (“A search warrant may be granted only upon a showing of probable cause ‘supported by oath or affirmation.’ ”).

BLATZ, Chief Justice

(concurring specially).

I join in the special concurrence of Justice Page.

ANDERSON, Russell A.,'

Justice (dissenting).

DISSENT

I respectfully dissent. I would affirm the conviction, concluding that the information contained in the search warrant affidavit, including .the dog sniff, provided a substantial basis for the issuing judge to conclude that there was probable cause to search the storage unit.

We do not “ ‘cavalierly construe our constitution more expansively than the United States Supreme Court has construed the federal constitution.’ ” State v. Askerooth, 681 N.W.2d 353, 362 (Minn.2004) (quoting State v. Fuller, 374 N.W.2d 722, 726-27 (Minn.1985)). This is particularly true where, as here, the two constitutional provisions are textually identical. Fuller, 374 N.W.2d at 727. Except for two other states, we are alone in construing the state constitution to mean that a dog sniff in the semi-public area outside a self-storage unit constitutes a search. All courts that have considered the issue have concluded that under the Fourth Amendment, no search occurs in this circumstance. These decisions are based on United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), in which the United States Supreme Court held that the exposure of luggage to a trained drug-detection dog at an airport did not constitute a search within the meaning of the Fourth Amendment. We recently held that a dog sniff around the exterior of a legitimately stopped motor vehicle is not a search requiring probable cause under either the Fourth Amendment or, Minn. Const, art. I, § 10. State v. Wiegand, 645 N.W.2d 125, 133 (Minn. 2002). In so holding, we found no .sound basis for rejecting the United States Supreme Court’s approach, noting that Place “was not a radical or sharp departure from precedent.” 645 N.W.2d at 132.

The Fourth Amendment and Minn. Const, art. I, § 10, protect a person’s legitimate expectations of privacy against unreasonable government intrusions. United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 53 L:Ed.2d 538 (1977); In re Welfare of B.R.K., 658 N.W.2d 565, 578 (Minn.2003). A legitimate expectation of privacy is, in the words of Justice Harlan, “one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Licari, 659 N.W.2d 243, 249 (Minn.2003). Justice Harlan later suggested, and the leading commentator on search and seizure law agrees, that the question whether reliance upon privacy is legitimate or reasonable “must * * * be answered by assessing the nature of a particular practice and the likely extent of its impact on the indiyidual’s sense of security balanced against the utility of the .conduct as a technique of law enforcement.” United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting); 1 Wayne R. LaFave, Search and Seizure § 2.1(d), at 440 (4th ed.2004). Under this approach, “those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties are searches.” (citing United States v. White, 401 U.S. at 786, 91 S.Ct. 1122). This approach involves a two-part inquiry: (1) what “sense of security” is important in our society, and (2) whether - the police investigative practice threatens that sense of security. Id. at 440-43.

Applying this fundamental approach to what constitutes a legitimate expectation of privacy protected by the constitutional proscription against unreasonable searches and seizures, I would conclude that the use of a trained drug-detection dog outside Carter’s storage unit did not constitute a search. As the renter, Carter doubtless had a legitimate expectation of privacy in the storage unit itself. See Licari, 659 N.W.2d at 250. We are concerned, however, with whether Carter had a legitimate expectation of privacy in the air outside the unit, in a semi-public walkway. The expectation-of-privacy analysis “necessarily requires consideration of the particular privacy interests in [that]- place.” Wiegand, 645 N.W.2d at 130.

The area where the dog sniff was conducted is a semi-public walkway that is accessible to renters of other storage units, the management of the facility, and individuals there by consent. Carter had no ability to limit their access to and use of the walkway, and he has not questioned the legitimacy of police presence there. Additionally, Carter was at the unit only periodically, and he obviously did not live there. I fail to see what “sense of security,” or legitimate expectation of privacy, Carter might possibly have had in the air in the semi-public area outside his storage unit.

It is not enough to say that the privacy interest in a storage unit is heightened because it is designed as a repository for personal effects. The same is true of luggage and the trunk of an automobile, and once they are immobilized, a dog sniff of them does not constitute a search under Place and Wiegand. A stopped vehicle additionally implicates the privacy interests of its occupants, and persons, no less than their effects, are constitutionally protected from unreasonable searches.

The majority implies that Carter had a legitimate expectation of privacy outside his storage unit on indications that drug-detection dogs may be more fallible than previously supposed. Whether a particular dog has unacceptably high error rates should go to probable cause for issuance of a search warrant, not an individual’s expectation of privacy in a particular place. See LaFave, supra, § 2.2(g), at 538 (if dogs are not as accurate as assumed in Place, this bears not so much on the question whether a dog’s sniffing is a search as it does on the question whether a dog’s alert standing alone constitutes probable cause for warrant); Illinois v. Caballes, — U.S. -, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (no suggestion that erroneous alert, in and of itself, reveals any legitimate private information). Whether fallible or not, dog sniffs still constitute a limited intrusion, revealing nothing else inside the structure that might implicate a legitimate expectation of privacy.

Quoting Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the majority also bases its holding on the ground that drug-detection dogs provide information that was “previously unknowable without physical intrusion.” Kyllo, however, involved a thermal-imaging device that could detect lawful activities within a home in which individuals have an obviously legitimate expectation of privacy. By contrast, a dog sniff is limited to revealing only the presence of contraband. Because any interest in possessing contraband is not one that society considers legitimate, a sense-enhancing technique that only reveals the presence of contraband “ ‘compromises no legitimate privacy interest.’ ” Caballes, 125 S.Ct. at 837 (quoting United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). As the Supreme Court stated in Caballes: “Critical to [the Kyllo] decision was the fact that the device was capable of detecting lawful activity— in that case intimate details in a home * * *. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from [a person’s] hopes or expectations concerning the nondetection of contraband * * Caballes, 125 S.Ct. at 838;

I am also concerned over what today’s decision portends for “plain smell” observations made in public or semi-public areas generally. Examples include the use of bomb-detection dogs to sniff for explosives, and humans detecting the odor of a decaying body or a methamphetamine laboratory. Under the approach taken by the majority, an individual may have a legitimate expectation of privacy in a particular space for some purposes but perhaps not for others, and the police and lower courts are provided little guidance in determining whether a particular intrusion into that space constitutes a “search” or not under the Minnesota Constitution.

Additionally, we need to be mindful that except in very limited circumstances, the Fourth Amendment and Minn. Const, art. I, § 10 require probable cause for a search. Terry frisks and other intrusions upon an individual’s personal security based on less than probable cause have been allowed not as a middle ground, but instead due to the “special needs” of law enforcement. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (Blaekmun, J., concurring). The special-needs doctrine requires the court “to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.” Skinner, 489 U.S. at 619, 109 S.Ct. 1402.

Finally, even applying the majority’s rationale, I would conclude that the police had reasonable suspicion to justify a dog sniff of Carter’s storage unit. The police were conducting an ongoing investigation into suspected drug dealing and firearms possession by Carter and his brother, both of whom had prior convictions -and arrests for controlled substance and weapons offenses. Both of the brothers rented units at the storage facility; -they sometimes were there several times a day; and sometimes Carter and his brother were seen together at .Carter’s storage unit. A few weeks beforehand, a BCA agent observed suspicious activity at the facility involving two cars, one of which was registered to Carter’s brother. And only a few days before the dog sniff, Carter had again been allowed use of his storage unit after paying arrearages in rent.

For all of these reasons, I would affirm the conviction.

      . Search warrant applications filed in connection with this case do not specify that the vehicles entered and/or departed the facility at the same time. But at a district court hearing on appellant's motion to suppress evidence seized pursuant to the warrants, the affiant officer testified that he was told that the vehicles had left the storage facility “together.”

      . Appellant also was charged with possession with intent to sell a controlled substance under Minn.Stat. § 152.022, subds. 1(1) and 3(b) (2004). Neither that charge nor circumstances of the search warrant for appellant's home are part of this appeal.

      . We also note that the stares from the driver of the white car can be innocently explained by the unusual experience of seeing police officers in "raid gear” near a self-storage facility. In addition, there was no nexus linking the suspicious vehicles or their drivers to any criminal activity involving appellant. His "mere association” with his brother, whose car was observed at the facility, is not enough to support probable cause. Blaclcsten, 507 N.W.2d at 847.

      . In Wiegand, we also noted that, for Fourth Amendment purposes, the question of whether a dog sniff is a search depends in part on the level of the expectation of privacy. We said:
      The Court [referring to Place] 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.

        Wiegand, 645 N.W.2d at 130.

      . See United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir.l993); United States v. Venema, 563 F.2d 1003, 1007 (10th Cir.1977); State v. Quatsling, 24 Ariz.App. 105, 536 P.2d 226, 228 (1975), cert. denied, 424 U.S..945, 96 S.Ct. 1416, 47 L.Ed.2d 352 (1976); People v. Wieser, 796 P.2d 982, 985 (Colo.1990); State v. Slowikowski, 307 Or. 19, 761 P.2d 1315, 1320 (1988); Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74, 78 (1987); Strout v. State, 688 S.W.2d 188, 191 (Tex.Ct.App.1985); see also McGahari v. State, 807 P.2d 506, 509-11 (Alaska Ct.App.1991) (recognizing the trend in federal courts to find that dog sniffs are not searches, but resolving the question solely under state constitution); Smith v. State, No. 01-02-00503-CR, 2004 WL 213395, at *3-⅜4 (Tex. Ct.App. Feb. 5, 2004), rev. denied (Tex. Sept. 15, 2004) and cert. denied, - U.S. -, 125 S.Ct. 1726, 161 L.Ed.2d 602 (2005) (holding that a drug-detection dog sniff outside a garage- door at a home was not a search under the Fourth Amendment).

      . "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. 1, §10.

      . We have recognized that a citizen’s protection against seizures may be greater under ■ article I, section 10, than under the Fourth Amendment. In the case of In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn.1993), we reiterated that a person facing contact with a police officer is “seized" when he feels that he ' is not free to leave; departing from a Supreme Court decision to the contrary in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). A year later, we departed from Michigan Dep’t of State Police v. Sitz; 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), which permitted police officers to use temporary roadblocks to seek out drunken drivers, when we held that the state had failed to prove why we should depart from the long-held policy in Minnesota that police generally must have "objective individualized ar-ticulable suspicion of criminal wrongdoing before subjecting a driver to an investigative stop." Ascher v. Comm’r of Pub. Safety, 51 N.W.2d 183, 187 (Minn.1994). In State v. Fort, we again applied Article I, Section 10 of the Minnesota Constitution to hold that police officers may not expand the scope of a routine traffic stop beyond the underlying justification for the stop without reasonable suspicion of criminal activity beyond the traffic offense. 660 N.W.2d 415, 419 (Minn.2003). And most recently, in State v. Askerooth, 681 N.W.2d 353 (Minn.2004), we held that a squad-car detention and a police officer’s request for consent to search were an unlawful seizure that exceeded article I, section 10 protections. Askerooth, 681 N.W.2d at 367, 371.

      . We specifically limit our decision to sniffs of drug-detecting dogs. We express no opinion regarding bomb-detection dogs, as to which the special needs of law enforcement might well be significantly greater.

      . We recently used similar language in holding that under Minn. Const, art. I, § 10, the reasonableness test involves "a balancing of the government’s need to search or seize ‘and the individual's right to personal security free from arbitrary interference by law officers.’ Askerooth, 681 N.W.2d at 365 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).


source: Caselaw Access Project

author: HUDSON, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Charles Edward BOEHL, Appellant.
    No. A04-583.
    Court of Appeals of Minnesota.
    June 7, 2005.

      Mike Hatch, Attorney General, St. Paul, Minnesota; and Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, Duluth, MN, for respondent.
    John M. Stuart, State Public Defender, Suzanne Senecal-Hill, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HUDSON, Presiding Judge; SCHUMACHER, Judge; and PORITSKY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

HUDSON, Judge.

Appellant Charles Edward Boehl challenges his convictions of. first- and second^ degree criminal sexual conduct arguing that the district court abused its discretion in admitting Spreigl evidence of a prior incident of indecent exposure. Appellant also challenges his sentence, arguing that (a) the upward durational departure under the patterned-sex-offender statute violated his right to a jury trial under Blakely v. Washington, and (b) a juvenile adjudication is not a prior qualifying criminal-sexual-conduct conviction triggering the mandatory imposition of a ten-year conditional release term. We affirm appellant’s conviction, but reverse appellant’s sentence and remand for resentencing consistent with this opinion.

FACTS

Following an .allegation by then 12-year-old K.M.D. that appellant engaged in sexual conduct with her when she was six or seven years old, the state charged appellant with one count of fírst-degreé criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1996), one count of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a) (1996), and one count of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. l(h)(iii) (1996).

The district court held a jury trial in April 2003. At trial, the state alleged that appellant engaged in inappropriate sexual conduct with then six- or seven-year-old K.M.D. in 1996. Appellant met K.M.D. through his relationship with KM.D.’s aunt, Kelly Kridermaeher. Appellant and Kridermacher shared an apartment in the spring of 1996. K.M.D. spent the night at Kridermaeher’s apartment approximately two to three times per week. When Kri-dermacher was called into work or needed to run errands, she left K.M.D. with appellant. Kridermacher testified that K.M.D. and appellant initially got along, but K.M.D. became quiet and angry in the summer of 1996, stating that she did not enjoy being in appellant’s company. In September 1996, appellant and Krider-macher broke off their relationship and appellant moved out of the apartment.

K.M.D. first disclosed that appellant had engaged in inappropriate sexual conduct with her in the summer of 2001. At that time, K.M.D. told Kridermacher that appellant had touched her “like a girl and a guy.” Kridermacher did not, however, contact the police and did not inform K.M.D.’s mother.

K.M.D. disclosed appellant’s conduct to other family members in November 2001 at a family funeral. Included in the conversation were Patricia Kirkwood, KM.D.’s grandmother, and Angel Waters, KM.D.’s aunt. At trial, Kirkwood and Waters testified that K.M.D. told the group that she had “a secret” and that appellant had touched her “down there.” Neither witness heard K.M.D. specify where or when the inappropriate contact occurred or the extent of the sexual contact, but both recalled K.M.D. explaining that appellant threatened to hurt her family if she told anyone. Waters phoned KM.D.’s mother, Joy Daly. Daly testified that K.M.D. told her that appellant “had touched her down there” and “had licked her down there” while she was staying with Kridermacher.

KM.D.’s family reported the incident, and the case was assigned to Officer Laura Marquardt. Officer Marquardt interviewed K.M.D. in January 2002. According to Officer Marquardt’s testimony, K.M.D. told Officer Marquardt that appellant touched her with his hands “down in the vagina” “about 13 times,” then clarified that appellant removed her pants and once licked her inside her vagina. K.M.D. also described an additional incident to Officer Marquardt when appellant attempted to “get on top” of her at her grandmother’s house while her clothes were on.

K.M.D. testified to these instances of sexual conduct at trial. But when describing appellant’s oral contact, K.M.D. said that appellant’s tongue was outside her vagina. The state played a video of K.M.D.’s first witness interview with Officer Marquardt in which she described appellant’s sexual conduct.

Over appellant’s objection, the state introduced Spreigl evidence at trial regarding an October 2001 incident of indecent exposure involving then five-year-old J.A.B. At the time, appellant and J.A.B.’s mother, Joannie Brigán, were cohabiting. On October 25, 2001, J.A.B.’s grandmother, Carol Brigán, arrived at the home to pick up J.A.B. shortly after 10:00 a.m. She saw appellant and J.A.B. walking down the stairs. Appellant was wearing a bathrobe; J.A.B. was clothed. J.A.B. later told her grandmother that appellant had “untied his robe and showed [her] his bottom.” J.A.B. later told her mother that appellant undid his robe and showed J.A.B. his “tu-tu,” which J.A.B. later explained means “privates.” J.A.B. told her mother that appellant then picked her up and placed her on top of him. J.A.B., her mother, and her grandmother testified to these events at trial. Additionally, the jury viewed the videotape of J.A.B.’s first witness interview with Officer Marquardt.

Appellant did not present any witnesses and did not testify. With respect to the Spreigl evidence, the trial court gave a cautionary limiting instruction to the jury both before receipt of the evidence and before closing arguments.

The jury convicted appellant on áll three charges. Following the trial, the state moved for an upward durational departure arguing that appellant qualified as a patterned-and-predatory offender under Minn.Stat. § 609.1352, subd. 1 (1996) (now codified at Minn.Stat. § 609.108, subd. 1 (2004)). At the January 7, 2008 sentencing hearing, the district court granted the state’s motion and sentenced appellant to 196 months, a double-upward durational departure. The court also imposed a ten-year conditional release term after concluding that appellant’s prior juvenile adjudication for third-degree criminal sexual conduct was a qualifying offense under Minn.Stat. § 609.346, subd. 5 (1996) (now codified at Minn.Stat. § 609.109, subd. 7 (2004)). This appeal follows.

ISSUES

I. Did the district court abuse its discretion by admitting the Spreigl evidence?
II. Does the district coúrt’s upward du-rational departure under the patterned-and-predatory-offender statute violate appellant’s Sixth Amendment right to a jury trial?
III. Is a juvenile adjudication a qualifying prior criminal-sexual-conduct conviction mandating imposition of a ten-year conditional release term?

ANALYSIS

I

Appellant first challenges the district court’s decision to admit evidence of appellant’s prior incident of indecent exposure. Evidence of another crime, wrong, or act is not admissible at trial to prove the character of a person to show that he acted in conformity therewith.' Minn. R. Evid. 404(b). Such evidence may be admissible for other purposes⅛ however, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See id. Such evidence- is known as “Spreigl evidence” in Minnesota. State v. Kennedy, 585 N.W.2d 385, -389 (Minn.1998). The admission of Spreigl evidence lies within the sound discretion of the district court and will not .be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn.1996).

To admit Spreigl evidence’, the district court must determine '“(1) that the evidence is clear and convincing that the defendant participated in' the other of-fensé; (2) that the Spreigl evidence is relevant and material'to' the state’s case; and (3)that the probative value of the Spreigl evidence is not outweighed by its 'potential for unfair prejudice.” State v. Shannon, 583 N.W.2d 579, 583 (Minn.1998). ;

Appellant does not dispute that the state presented clear and convincing evidence of the prior act of indecent exposure, but he argues that the district court abused its discretion because the evidence was irrelevant, cumulative, and prejudicial. Appellant asserts that, as a result of this evidence, he was denied a fair trial. We disagree.

In criminal sexual conduct cases, particularly in child sex abuse prosécutions, pri- or acts of sexual conduct are often relevant where the defendant disputes that the sexual conduct occurred or where the defendant asserts the victim is fabricating the allegations. See State v. Wermerskirchen, 497 N.W.2d 235, 240-41 (Minn.1993); see also State u Duncan, 608 N.W.2d 551, 557 (Minn.App.2000), review denied (Minn. May 16, 2000). “Given the secrecy in which such acts take place, the vulnerability of the victims, the absence of physical proof of the crime ... and a general lack of confidence in the ability of the jury to assess the credibility of child witnesses,” the prior convictions are relevant to show a common plan or scheme on the part of the defendant, i.e., to establish that the act occurred. Id. (quoting 22 C. Wright and K Graham, Federal Practice & Procedure — Evidence § 5239 at 461-62 (1978)).

The state offered the Spreigl evidence to show appellant’s intent, and his common scheme or plan. Appellant denied that the inappropriate sexual contact occurred. Although appellant did not put forth a defense, the state’s entire case rested on the testimony of K.M.D., because the crime produced no physical evidence and .other witnesses could only corroborate KM.D.’s disclosure and appellant’s access. The Wermerskircken decision is therefore directly on point. In terms of similarity, the Spreigl evidence demonstrated a pattern of opportunistic fondling of young girls aged five to seven after establishing a relationship of trust with their mothers. While the current offense is more severe, we conclude that the modus operandi was sufficiently similar.

We note, however, the supreme court’s instruction in Ture v. State to exclude Spreigl evidence “where it is merely cumulative and a subterfuge for impugning a defendant’s character or for indicating to the jury that he is a proper candidate for punishment.” 681 N.W.2d 9, 16 (Minn.2004) (agreeing with the appellant’s argument that the state’s presentation of 24 witnesses testifying to one Spreigl incident for three days of a twelve-day trial was highly prejudicial) (quoting State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 284-85 (1967)). Here, the evidence presented was largely cumulative and bordered on violating the principles affirmed in Ture. '

Nevertheless, we conclude that the district court did not abuse its discretion because the Spreigl evidence was sufficiently probative on the issue of whether the conduct K.M.D. alleged actually occurred to outweigh the potential for unfair prejudice.

II

Appellant also challenges the constitutionality of his sentence under the patterned-and-predatory-offender statute, Minn.Stat. § 609.1352, subd. 1 (1996) (now codified at Minn.Stat. § 609.108, subd. 1 (2004)), arguing that the district court violated his Sixth Amendment right to a jury trial by upwardly departing from the presumptive guidelines sentence based on findings of fact that were not made by a jury. This court reviews a constitutional challenge to a statute de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn.App.1998).

In Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the United States Supreme Court refined the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” Blakely, — U.S. -, 124 S.Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63). Following Blakely, the relevant statutory maximum is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 2537. Consequently, under Blakely, any upward durational departure from a statutory presumptive sentence must be based on factual findings either “reflected in the jury- verdict or admitted by the defendant.” Id.

This court has held that Blakely applies to the Minnesota sentencing guidelines. See State v. Conger, 687 N.W.2d 639 (Minn.App.2004) (involving guilty plea), review granted (Minn. Dec. 22, 2004); State v. Saue, 688 N.W.2d 337 (Minn.App.2004) (involving jury verdict), review granted (Minn. Jan. 20, 2005) (stayed pending decision in Shattuck). In State v. Mitchell, this court applied Blakely to a sentence imposed under the career-offender statute, Minn.Stat. § 609.1095, subd. 4 (2004), because the determination that a defendant has engaged in a “pattern of criminal conduct” goes beyond a mere determination as to the fact and number of an offender’s prior convictions. 687 N.W.2d 393, 399-400 (Minn.App.2004), review granted (Minn. Dec. 22, 2004) (stayed pending decision in Shattuck). Additionally, this court determined that Blakely applied to an upward departure under the dangerous-offender statute, Minn.Stat. § 609.1095, subd. 2 (2004), reasoning that the danger-to-public-safety statutory factor required factual findings outside the stipulated record. See State v. Fairbanks, 688 N.W.2d 333, 336 (Minn.App.2004) (vacating the appellant’s sentence), review granted (Minn. Jan. 20, 2004) (stayed pending decision in Shattuck).

Here, the district court sentenced appellant to a double upward durational departure under the patterned sex offender statute, Minn.Stat. § 609.1352, subd. 1 (1996) (now codified at Minn.Stat. 609.108, subd. 1 (2004)). Under the patterned-sex-offender statute, when a court imposes an executed sentence for a conviction of first-degree criminal sexual conduct, the court “shall” impose a sentence that is not less than double the presumptive sentence but not' more than the statutory maximum if the defendant meets the criteria of a patterned sex offender. Minn.Stat. § 609.108, subd. 1(a) (2004). The criteria are: (1) it reasonably appears the crime was motivated by the offender’s sexual impulses or was a part of a predatory pattern of behavior that had criminal sexual conduct as its goal; (2) the offender is a danger to public safety; and (3) based on a professional assessment by an experienced examiner, the offender needs long-term treatment beyond the presumptive term of imprisonment and supervised release. Id., subd. l(a)(l)-(3) (2004). A sentence imposed under the statute is a departure from the sentencing guidelines. Id., subd. 5 (2004).

In State v. Whitley, this court declined to apply Blakely to Minn.Stat. § 609.108, subd. 1, noting the supreme court’s determination that the provision required findings on factors traditionally left to the district courts. 682 N.W.2d 691, 696 (Minn.App.2004) (citing State v. Grossman, 636 N.W.2d 545, 550-51 (Minn.2001)). The Whitley court, however, applied Blakely and reversed the appellant’s sentence under Minn.Stat. § 609.108, subd. 2 (2004), which required a finding that the defendant’s predatory crime was motivated by or committed in the course of or furtherance of sexual conduct. Id. We conclude that, following Mitchell and Fairbanks, this distinction between traditional and non-traditional sentencing factors is illusory.

Appellant’s sentence under the patterned sex offender statute was based on factors that go beyond mere criminal history and that were not admitted or found by a jury. The district court found — based on testimony from two psychologists, appellant’s probation officer, and appellant— that it “reasonably appealed] that [appellant’s] crimes were motivated by [appellant’s] sexual impulses; that the crime was part of a predatory pattern of behavior which had sexual conduct as its goal.” The district court also found that appellant was a danger to public safety. Because appellant did not waive his right to a jury trial on these findings, his sentence violates the Sixth Amendment.

Ill

Appellant also challenges the district court’s imposition of a ten-year conditional release term under Minn.Stat. § 609.346, subd. 5 (1996) (now codified at Minn.Stat. § 609.109, subd. 7 (2004)), arguing that his prior juvenile adjudication is not a previous sex offense “conviction” mandating a ten-year conditional release term. We agree.

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). When interpreting a statute, this court focuses on the words of the statute to “ascertain and effectuate the intention of the legislature.” MinmStat. § 645.16 (2004).

Minn.Stat. § 609.109, subd. 7, mandates a ten-year conditional release period when a defendant has a “previous sex offense conviction” as defined by Minn.Stat. § 609.109, subd. 5 (2004). Subdivision 5 states that “a conviction is considered a previous sex. offense conviction if the person was convicted of a sex offense before the commission of the present offense of conviction.” Id., subd. 5. The subdivision does not otherwise define “conviction.” Minnesota law generally defines “conviction” as (1) a plea of guilty; or (2) a verdict of guilty by a jury or a finding of guilty by the court. Minn.Stat. § 609.02, subd. 5 (2004). But Minnesota law also instructs that “[n]o adjudication upon the status of any child in the jurisdiction of the juvenile court shall ... be deemed a conviction of crime.” Minn.Stat. § 260B.245, subd. 1 (2004).

In addition, the legislature has specifically included both convictions and juvenile adjudications when drafting other provisions of the Minnesota Statutes, suggesting that the legislature did not intend to include juvenile adjudications in the context of mandatory conditional release. See, e.g., Minn. Stat § 243.166, subd. 1(a)(1) (2004) (requiring registration as a predatory offender if “convicted of or adjudicated delinquent”); Minn.Stat. § 609.224, subd. 4(b) (2004) (enhancing fifth-degree assault to a felony upon demonstration of “qualified domestic violence-related offense convictions or adjudications of delinquency”); Minn.Stat. § 624.713, subd. 1(b) (2004) (providing that a “person who has been convicted of, or adjudicated delinquent” cannot legally possess a firearm).

Accordingly, we conclude that under Minn.Stat. § 609.109, subd. 7, juvenile adjudications are not qualifying criminal-sexual-conduct convictions requiring the imposition of a mandatory ten-year conditional release term. Consequently, the district court erred in imposing the ten-year term based solely on appellant’s prior juvenile adjudication; section 609.109, subdivision 7, mandates that appellant receive a five-year conditional release term.

Appellant also submitted a pro se brief applying the principles of conditional acceptance to his conviction. Appellant did not present this argument to the district court. Therefore, we decline to review appellant’s argument on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn.1996).

DECISION

Because the challenged Spreigl evidence was sufficiently probative to outweigh the potential for prejudice, we affirm the conviction. But, because the district court (a) violated appellant’s Sixth Amendment right to a jury trial by imposing an upward durational departure on his criminal-sexual-conduct sentence based on judicially found facts, and (b) improperly imposed a ten-year conditional release term without a prior qualifying criminal-sexual-conduct conviction, we reverse appellants sentence and remand for sentencing consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . The supreme court granted review in Conger, but stayed additional processing of the matter pending a final decision in State v. Shattuck, No. C6-03-362 (Minn, argued Nov. 30, 2004). By order filed in Shattuck on December 16, 2004, the supreme court held that the imposition of an upward durational departure under 'the sentencing guidelines and based on aggravating factors not considered by the jury was a violation of the defendant’s rights as articulated in Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). State v. Shattuck, 689 . N.W.2d 785, 786 (Minn. Dec. 16, 2004) (per curiam). The court indicated that a full opinion will follow and directed the parties to submit additional briefs on the appropriate remedy. Id.


author: KALITOWSKI, Judge.

text:
    MINNESOTA INSURANCE GUARANTY ASSOCIATION, Respondent, v. INTEGRA TELECOM, INC., Appellant.
    No. A04-1877.
    Court of Appeals of Minnesota.
    June 7, 2005.

      Stephen P. Lucke, Michelle S. Grant, Dorsey & Whitney, L.L.P., Minneapolis, MN, for respondent.
    Dean A. LeDoux, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN, for appellant.
    Considered and decided by KALITOWSKI, Presiding Judge; LANSING, Judge; and MINGE, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant Integra Telecom, Inc. challenges the district court’s grant of summary judgment in favor of respondent Minnesota Insurance Guaranty Association (MIGA). Appellant argues that (1) the district court erroneously construed the Minnesota Insurance Guaranty Association Act to permit MIGA to maintain a reimbursement claim against appellant based on a settlement MIGA entered into without appellant’s consent; (2) the district court erred because Minn.Stat. § 60C.11, subd. 3, prohibits MIGA from bringing a cause of action against appellant; and (3) the court’s construction rendered the act unconstitutional by violating appellant’s due process rights.

FACTS

In 2000, Laura Breid filed a workers’ compensation claim for injuries sustained in the course of her employment with appellant Integra Telecom, Inc. Appellant submitted the claim to its insurer, Reliance Insurance Company (Reliance). Prior to any settlement being reached, Reliance went into receivership and in October 2001, Reliance was declared insolvent by Pennsylvania court order.

Pursuant to Minnesota law, the responsibility for handling the Breid claim fell to respondent Minnesota Insurance Guaranty Association (MIGA). See Minn.Stat. § 60C.01-.22 (2002) (the Minnesota Insurance Guaranty Act). MIGA is an association created by statute. Minn.Stat. § 60C.04. When an insurer is deemed insolvent, MIGA “shall [b]e deemed the insurer to the extent of its obligation on the covered claims and have the right to pursue and retain salvage and subrogation recoverables on covered claim obligations.” Minn.Stat. § 60C.05, subd. 1(a). Accordingly, MIGA assumed Reliance’s obligations.

In August 2002, MIGA authorized a settlement of the Breid claim and the Stipulation for Settlement was submitted to the office of administrative hearings, which issued an Award on Stipulation in September 2002. Subsequently MIGA sought reimbursement from appellant for the $62,801 paid on the Breid claim in addition to amounts that will come due in the future under the stipulation. MIGA cited its right to “recover the amount of. any covered claim ... resulting from insolvencies which occur after July 31, 1996, on behalf of an insured who has a net worth of $25,000,000 ... and whose liability obligations to other persons are satisfied in whole or in part by payments made under this chapter.” Minn.Stat. § 60C.11, subd. 7.

After appellant refused to pay, MIGA filed a complaint seeking reimbursement. Following discovery, the parties brought cross-motions for summary judgment. Appellant argued that MIGA did not have the authority to legally bind appellant to a settlement without first obtaining appellant’s consent. Appellant argued in the alternative that to the extent the Minnesota Insurance Guaranty Association Act (the Act) gives MIGA the authority to settle claims for which an insured will be liable without the insured’s consent, the statute is unconstitutional because it constitutes a taking without due process.

MIGA maintained that it did not need appellant’s consent, or alternatively, that it had appellant’s consent to settle the suit under the terms of appellant’s insurance policy with Reliance that was transferred to MIGA under the Act when Reliance became insolvent. MIGA also argued that even if it did not receive consent, because the settlement was reasonable and made in good faith, appellant cannot show that it was prejudiced by the settlement.

The district court granted summary judgment in favor of MIGA concluding that (1) MIGA is not required to obtain consent from the insured before MIGA pays a claim under the insured’s policy in order to maintain a reimbursement claim against the insured; and (2) the Act was constitutional.

ISSUES

1. Did the district court erroneously construe the Minnesota Guaranty Association Act to permit MIGA to maintain a reimbursement claim against appellant based on a settlement MIGA entered into without appellant’s consent?

2. Did the district court err by failing to properly reconcile conflicting provisions of the Minnesota Guaranty Association Act?

3. Did the district court’s interpretation of the Minnesota Guaranty Association Act render the Act unconstitutional?

ANALYSIS

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

Appellant argues that the district court erred in its interpretation of the Act by construing the statute to impermissibly expand the scope of authority conveyed to MIGA in order to permit MIGA — when the underlying insurer becomes insolvent — to settle claims in its discretion without consent from the insured, and to then require the insured to reimburse MIGA for the full amount of the settlement. Appellant contends that if the legislature intended such a harsh result, the legislature would have clearly expressed that intent. Appellant maintains that MIGA only has the authority expressly contained within its enabling act and that the district court’s construction of the Act overlooked this threshold principle. See Peoples Natural Gas Co. v. Minn. Pub. Utils. Comm’n, 369 N.W.2d 530, 534 (Minn.1985) (stating that the public utilities commission, as a creature of statute, “has only those powers given to it by the legislature”) (quotation omitted).

Statutory construction is a question of law that this court reviews de novo. See Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation and quotation marks omitted). Where a statute is ambiguous,

[bjasic canons of statutory construction instruct that we are to construe words and phrases according to their plain and ordinary meaning. A statute should be interpreted, whenever possible, to give effect to all of its provisions; no word, phrase, or sentence should be deemed superfluous, void, or insignificant. We are to read and construe a statute as- a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations. Finally, courts should construe a statute to avoid absurd results and unjust consequences.

Id. at 277-78 (citations and quotation marks omitted).

In addressing appellant’s argument, it is helpful to begin with the purposes of the Act as stated by the legislature:

[t]he purposes of this chapter are to provide a mechanism for the payment of covered claims under certain insurance policies and surety bonds, to the extent provided in this chapter, minimize excessive delay in payment and to avoid financial loss to claimants or policyholders because of the liquidation of an insurer, and to provide an association to assess the cost of the protection among insurers.

Minn.Stat. § 60C.02, subd. 2 (2002). Such protection is not absolute; the Act places financial limits on covered claims and excludes some claims. See Minn.Stat. § 60C.09, subds. 2, 3 (2002). The Act “shall be liberally construed to effect the purposes stated in subdivision 2.” Minn, Stat. § 60C.02, subd. 3 (2002).

Section 60C.05 delineates the powers and duties of MIGA. Following the insolvency of an insurer, MIGA “shall ... [b]e deemed the insurer to the extent of its obligation on the covered claims and have the right to pursue and retain salvage and subrogation recoverables on covered claim obligations.... ” Minn.Stat. § 60C.05, subd. 1(a) (2002). The statute also authorizes MIGA to “[njegotiate and become a party to the contracts necessary to carry out the purpose of this chapter,” and to “[pjerform other acts necessary or proper to effectuate the purpose of this chapter.” Minn.Stat. § 60C.05, subd. 2(d), (e) (2002).

Appellant argues that because section 60C.05, delineating the MIGA’s powers and duties, does not expressly vest MIGA with the authority to settle claims without the consent of an insured against whom MIGA will be seeking reimbursement, MIGA has no such authority. But statutory authority may be either express or imT plied. In re Application of Minnegasco, 565 N.W.2d 706, 711 (Minn.1997). An implied authority may be inferred when the necessity and logic of the situation require it. .Id.

There is no dispute that under the Act as it existed in 2001-2002, the Breid claim was a covered claim, and that MIGA was obligated to take over and pay the claim when Reliance became insolvent. The language of the Act vests MIGA with authority to negotiate claims as a party to the underlying policy contract, and it obligates MIGA to take additional steps to carry out the purposes of the statute, which includes minimizing delays in payment to claimants. Minn.Stat. §§ 60C.02, subd. 2, .05. Notably, the statute is silent as to whether MIGA must obtain consent from the insured before negotiating a settlement. But this does not mean that consent is required. Rather, the canons of statutory construction prohibit this court from adding words to a statute to supply that which the legislature purposefully omits or inadvertently overlooks. Goplen v. Olmsted County Support & Recovery Unit, 610 N.W.2d 686, 689 (Minn.App.2000).

We therefore conclude that in light of (1) .the broad description of MIGA’s powers in section 60C.05, subdivision 2(d) and (e);.- (2) the. absence of any consent requirement; and (3) the remedial purpose of the statute; an implied authority to settle covered claims without consent from the insured is inferred from the statutory scheme. See Miklas v. Parrott, 684 N.W.2d 458, 461 (Minn.2004) (stating “[r]e-medial statutes must be liberally construed for the purpose of accomplishing their objects”) (quotation omitted). Without such authority, claimants would have to wait for MIGA and the insured to work out an agreement as to any settlement, thereby prolonging the delay in payment and contravening the clear purpose of the statute.

Because we conclude that MIGA has authority to settle claims without appellant’s consent, we do not address MIGA’s alternative argument that it had consent to settle under the terms of appellant’s insurance policy with Reliance.

II.

Appellant contends the district court failed to apply Minn.Stat. § 60C.11, subd. 3 (2002), which provides: “The association [MIGA] has no cause of action against the insured of the insurer for any sums it has paid out except the causes of action the insurer would have had if the sums had been paid by the insurer.” (Emphasis added.) The district court instead based its decision on Minn.Stat. § 60C.11, subd. 7 (2002), which provides: “The association [MIGA] may recover the amount of any covered claim paid, resulting from insolvencies which occur after July 31, 1996, on behalf of an insured who has a net worth of $25,000,000 ... and whose liability obligations to other persons are satisfied in whole or in part by payments made under this chapter.” (Emphasis added.) Because it could reasonably be interpreted that the two subdivisions are in conflict, we conclude that the statute is ambiguous. See Minn.Stat. § 645.26 (2002) (providing rules of construction for irreconcilable provisions); Am. Family Ins. Group, 616 N.W.2d at 277. The object of all statutory interpretation is to ascertain the intention of the legislature. Minn.Stat. § 645.16 (2002). And contemporaneous legislative history may be helpful in ascertaining the legislature’s intent. Id.

When interpreting clauses in the same law that are irreconcilable, the “clause last in order of date or position shall prevail.” Minn.Stat. § 645.26, subd. 2. Because subdivision 7 of section 60C.11 was added in 1996 and subdivision 3 has been in the Act since its inception in 1971, under the canons of statutory construction, subdivision 7 prevails. 1996 Minn. Laws ch. 446, art. 2, § 8 (adding subdivision 7 to the Act). While the purpose of the Act is to protect insureds like appellant, the subsequent enactment of subdivision 7 recognizes that certain insureds have the ability to pay judgments and that MIGA’s limited funds should go to those least able to absorb the impact. Courts construing similar provisions in other states with comparable statutes have reached similar conclusions. See Borman’s Inc. v. Mich. Prop. & Cas. Guar. Ass’n, 925 F.2d 160, 162 (6th Cir. 1991) (stating parties agreed that purpose of net worth calculation was to ensure association’s funds go to those insureds least able to absorb unexpected loss due to insolvency of insurer); R.I. Insurers’ Insolvency Fund v. Leviton Mfg. Co., 716 A.2d 730, 734-35 (R.I.1998) (stating decision to include recoupment provision applicable to companies with net worths in excess of $50. million ensures sufficient funds will be available to accomplish important objective that benefits of fund first be paid to injured employees).

Appellant asserts that subdivisions 3 and 7 can be reconciled by interpreting subdivision 7 to mean that MIGA has the authority to enter into enforceable-contracts with high net worth insureds in cases where MIGA agrees to handle the insured’s claims in a manner and upon terms that MIGA and the insured agree to before the claim is settled, including a right of reimbursement by MIGA. Such an interpretation would not violate subdivision 3, according to appellant, because MIGA would still be prohibited from instituting a cause of action against an insured. But, as with section 60C.05, there is no language in subdivision 7 of section 60C.11 requiring MIGA to obtain agreement from the insured in order to settle a claim or recover the amount in claims paid out on the insured’s behalf.

Moreover, legislative history makes clear that subdivision 7 was intended to allow MIGA the right to recover amounts paid on behalf of a company with a net worth greater than $25 million, who are presumably sophisticated insurance purchasers, in order to ensure that the MIGA’s limited funds would go to pay the claims of those insureds without substantial assets. Hearing on S.F. No. 1980 Before the Senate Commerce & Consumer Protection Comm. (Feb. 7, 1996) (statement of Department of Commerce spokesperson P. Peterson); Hearing on H.F. 2378 Before House Fin. Institutions & Ins. Comm. (Feb. 14, 1996) (statement of Department of Commerce spokesperson Charles Nettell). Earlier agreement by the insured to a negotiated settlement with the claimant prior to recovering from the insured was never contemplated by the legislature, and the statutory language plainly does not require consent. Accordingly, and as stated above, because “the statute has no language that would support [appellant’s] contention, ... this court may not add to the statute what the legislature deliberately or inadvertently omitted.” Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 667 N.W.2d 447, 450 (Minn.App.2003), aff'd, 683 N.W.2d 274 (Minn.2004).

Appellant also argues that use of the phrase “cause of action” in subdivision 3 demonstrates that the legislature knew how to allow or prohibit a cause of action by MIGA and that use of the less specific phrase “may recover” in subdivision 7 indicates that the legislature did not intend subdivision 7 to create a cause of action for MIGA against certain insureds. We disagree. To adopt appellant’s interpretation would read out of the statute the very explicit language permitting MIGA to recover amounts paid on behalf of high net worth insureds.

Appellant further argues that to permit an action against high net worth insureds essentially renders subdivision 3 superfluous. We disagree. MIGA is still prohibited from initiating any cause ' of action against an insured whose net worth is under $25 million. Minn.Stat. § 60C.11, subd. 3. We also reject appellant’s argument that because subdivision 7 does not explicitly state that it is an exception to subdivision 3, it should not be interpreted as an exception. Even if subdivision 7 is not an exception, it is a more specific provision than subdivision 3 and, therefore, it prevails. See Minn.Stat. § 645.26, subd. 1 (providing interpretation of statutes should attempt to give effect to all provisions but in event of irreconcilable provisions, specific controls over general).

Appellant also points out that subdivision 7 does not clearly state from whom or how MIGA may recover such amounts. However, to construe the statute to mean anything other than permitting MIGA to maintain a reimbursement claim against a high net worth insured would be absurd. It is on behalf of the high net worth insured that the claim was paid. “When the words of a law are not explicit, the intention of the legislature may be ascertained by considering ... the object to be attained ... [and] the consequences of a particular interpretation.” Minn.Stat. § 645.16. It is presumed that the legislature (1) does not intend an absurd result; and (2) intends to favor the public interest over a private interest. Minn.Stat. § 645.17 (2002). Further, as noted above, legislative history does not support appellant’s position.

Appellant next argues that to construe subdivision 7 to permit MIGA to maintain a reimbursement claim against high net worth insureds makes no sense if the underlying Breid claim is a “covered claim” under section 60C.09 (as it existed at the time of the settlement), because such a construction essentially turns the covered claim into an excluded claim. See Minn.Stat. § 60C.09, subd. 1 (2002) (defining “covered claim”). That is to say, since the recoupment provision places appellant in the same position it .would be if the Breid claim had been, an excluded claim under the Act, then the legislature could have excluded claims from MIGA’s coverage by changing the definition of what constitutes a “covered claim,” which, appellant points out, the legislature did in 2003. First, we note that subsequent amendments are not relevant. Moreover, appellant’s argument fails to recognize that even if appellant is ultimately responsible for any payment to Breid, the legislature still had a rational basis for transferring the case to MIGA for handling to ensure prompt payment to the injured employee — one of the primary purposes of the Act. Thus, providing a recoupment provision to recover claims paid to injured employees helps to accomplish the purpose of the Act.

Finally, appellant argues that' to construe subdivision 7 to not require consent creates an absurd result because one of the purposes of the Act is to “avoid financial loss to ... policyholders because of the liquidation of an insurer.” Minn.Stat. § 60C.02, subd. 2. Appellant asserts that construing a recoupment provision absent consent into subdivision 7 leaves insureds in a worse position than they would have been had they never bought insurance in the first instance because they receive no benefit from the premiums that were paid. Appellant also asserts that depriving insureds of the opportunity to assess the reasonableness of a settlement that they will ultimately pay further disadvantages insureds. But the purpose of the Act is also to avoid financial loss to claimants, and funds to cover the cost of the financial protection are not unlimited. By enacting subdivision 7, the legislature sought to balance the interests of claimants and policyholders by allowing MIGA to handle claims quickly and efficiently and by providing MIGA with an option to seek reimbursement from high net worth insureds, and thereby permit MIGA’s limited funds to go to those most in need should their insurer become insolvent.

Ill

' Appellant argues that the district court’s interpretation of the Act violates its state and federal constitutional rights to due process because allowing MIGA to seek reimbursement without appellant’s consent constitutes a taking of property without due process.

But the party challenging the constitutionality of a statute on appeal must notify the attorney general in time to afford an opportunity to intervene. Minn. R. Civ.App. P. 144. Appellant did not do so, claiming that MIGA, as a legislatively-created body, should be considered a state party, thereby obviating the need to notify the attorney general. But MIGA is not a state agency; it is an unincorporated organization formed of insurers who transact insurance business in Minnesota. Minn. Stat. § 60C.04 (2002). “[BJecause [appellant] failed to inform the attorney general of [its] constitutional claim, as required by Minn. R. CivApp. P. 144, this issue is not properly before this court.” Theorin v. Ditec Corp., 377 N.W.2d 437, 440 n. 1 (Minn.1985); see also Maxwell Communications v. Webb Publ’g Co., 518 N.W.2d 830, 834 n. 6 (Minn.1994) (finding violation of rules where no notice was given to attorney general in case where MIGA was a respondent).

DECISION

Because the Minnesota Guaranty Association Act permits the Minnesota Insurance Guaranty Association to negotiate a settlement and recover the amount of any covered claim paid from an insured with a net worth exceeding $25 million, we affirm the district court’s grant of summary judgment in favor of Minnesota Insurance Guaranty Association.

Because MIGA is not a state agency and appellant failed to notify the attorney general of its constitutional challenge to the Minnesota Guaranty Association Act, we do not address this argument.

Affirmed.

      . The parties agree that Breid’s claim is a covered claim under the act and is not affected by the 2003 changes to the act. Minn.Stat. § 60C.09, subd. 2(3) (2002). See 2003 Minn. Laws ch. 74, § 6 (amending act to exclude from the definition of "covered claims” any claims, not just first-party claims, by an insured whose net income exceeds $25 million).

      . Section 60C.09 excluded any first-party claims resulting from insolvencies occurring after July 31, 1996, by high net worth insureds. Minn.Stat. § 60C.09, subd. 2(3). First-party claims are claims where the insured itself has a loss that is covered by a policy. In contrast,, third-party claims are those where the insured is covered for liability to third persons. See RLI Ins. Co. v. Pike, 556 N.W.2d 1, 3 (Minn.App.1996), review denied (Minn. Jan. 29, 1997). The underlying Breid claim was a third-party claim; therefore it was not excluded.