1

STATE OF MINNESOTA

IN SUPREME COURT

A22-1436

Court of Appeals McKeig, J.

Took no part, Hennesy, Gaïtas, JJ.

State of Minnesota,

Appellant,

vs. Filed: August 28, 2024

Office of Appellate Courts

Jeron Garding,

Respondent.

________________________

Keith Ellison, Attorney General, Ed Stockmeyer, Assistant Attorney General, Saint Paul, 

Minnesota; and

Brian A. Lutes, Wright County Attorney, Buffalo, Minnesota, for appellant.

Cathryn Middlebrook, Chief Appellate Public Defender, Ted Sampsell-Jones, Special 

Assistant Public Defender, Tacota M. Lemuel, Certified Student Attorney, Saint Paul, 

Minnesota, for respondent.

________________________

S Y L L A B U S

An officer may perform a drug-dog sniff of a vehicle’s exterior when he has 

reasonable, articulable suspicion of drug-related criminal activity due to reasonable 

inferences that the vehicle’s passenger has recently used drugs, a plastic shopping bag in 

the backseat may contain drugs, and the driver’s flight from the scene was causally related 

to drugs in the vehicle.

Reversed.
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O P I N I O N

MCKEIG, Justice.

This case requires us to determine whether law enforcement had reasonable, 

articulable suspicion of drug-related criminal activity to conduct a drug-dog sniff of the 

exterior of a motor vehicle. Respondent Jeron Garding was arrested after a drug-dog sniff 

of his parked car led to the discovery of approximately 410 grams of methamphetamine. 

Garding moved to suppress the drugs found in the car, arguing that law enforcement lacked 

reasonable, articulable suspicion of drug-related criminal activity to support the drug-dog 

sniff of the car’s exterior. After a contested omnibus hearing at which the State offered 

testimony from the state trooper who conducted the drug-dog sniff, the district court denied 

Garding’s motion. Garding was convicted of first-degree possession of narcotics after a 

stipulated facts trial under Minn. R. Crim. P. 26.01, subd. 4, preserving review of the 

pretrial ruling on his suppression motion. Garding then appealed the denial of his pretrial 

motion to suppress. The court of appeals reversed, finding that the state trooper did not 

have reasonable, articulable suspicion of drug-related criminal activity to conduct a drugdog sniff of the car’s exterior. Because we find that, under the totality of the circumstances,

the officer possessed sufficient reasonable, articulable suspicion of drug-related criminal 

activity, we reverse the decision of the court of appeals.

FACTS

On August 10, 2021, Jeron Garding was arrested on first-degree narcotics charges, 

Minn. Stat. § 152.021, subds. 1(4), 2(a)(1) (2022), for approximately 410 grams of 

methamphetamine found in his car after officers conducted a drug-dog sniff. He filed a 
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motion to suppress the drugs found in the car, arguing, among other things, that the officers 

did not have reasonable, articulable suspicion to conduct the drug-dog sniff of the exterior 

of his car. The district court held a contested omnibus hearing on Garding’s motion to 

suppress. State Trooper Jacob Bredsten testified at the hearing, and the parties stipulated 

to four exhibits: dashcam video from the officer’s squad car, two screenshots from that 

footage, and a photograph taken during the search of the car.1

According to Trooper Bredsten’s testimony, in August 2021, the Minnesota State 

Patrol undertook an organized police operation in rural Wright County to target drug, 

weapon, and sex trafficking into northern Minnesota. At the time, traffickers were known 

to be using a route that passed through a sparsely populated area near Hasty along 

Interstate 94. On the evening of Garding’s arrest, Trooper Bredsten was assigned to work 

a nighttime detail as part of this operation. Trooper Bredsten is a certified drug recognition 

expert, and he was accompanied that evening by his trained drug-detection dog, as well as

a social welfare advocate who specialized in assisting victims of sex trafficking.

Around 8:30 p.m., Trooper Bredsten pulled into a truck stop near Hasty that was 

just off—but not directly visible from—the interstate. The truck stop included a gas station 

and a restaurant, which were all part of the same building. From his experience, Trooper 

Bredsten knew that a truck stop in this area and at this time of night presented a heightened 

1 We do not consider three additional photographs or three narrative police reports

that are part of the complete record but were not part of the pretrial record at the time of 

the contested omnibus hearing. 
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risk of trafficking activity. He also knew that police had initiated a chase commencing at 

this same truck stop the prior evening.

As Trooper Bredsten arrived at the truck stop, a parked sedan attracted his attention. 

The vehicle was conspicuous to Trooper Bredsten because it was the only occupied vehicle 

that was parked away from the gas pumps. Trooper Bredsten saw a male in the driver’s 

seat—later identified as Garding—and a female in the front passenger seat. He ran the 

car’s license plate number and learned that it was registered to an owner who lived in 

Fergus Falls, which is nearly 130 miles away from Hasty. He also learned that the 

registered owner of the car was significantly older than either of the car’s occupants 

appeared to be. This discrepancy caught his attention because that year he had observed a 

trend in his traffic stops involving criminal activity in which drivers were using vehicles

registered to owners who were not present.

After Trooper Bredsten ran the car’s license plate number, he drove away and 

parked his squad car in a location where he could continue to monitor the car. As soon as 

Trooper Bredsten drove away, Garding and the passenger got out of the car, and the 

passenger went into the gas station while Garding spent a considerable length of time 

apparently cleaning trash from the car’s interior. He appeared to collect items from 

difficult-to-reach areas and place them in a plastic bag. Trooper Bredsten testified that, in 

his experience, these difficult-to-reach areas are ones in which contraband can be hidden, 

but he did not observe Garding extracting any such contraband from the car. He also 

testified that, in his experience, it is not uncommon behavior for criminals to engage in 
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extensive cleaning of their vehicle when they are aware of an officer’s presence, in an 

attempt to delay their departure until after an officer leaves the scene.

At this point, Trooper Bredsten repositioned his squad car so that it was closer to 

Garding’s car, but he did not activate his emergency lights or block the car from moving 

in any way. He then approached Garding on foot and asked him if everything was okay. 

Garding closed the car’s driver-side door, walked to the back of the car, and placed the bag 

of trash inside the trunk. Garding then closed the trunk and responded to Trooper Bredsten 

that everything was fine before walking away into the gas station.

By that time, the passenger had returned to the car, and Trooper Bredsten turned to 

speak with her through the partially open driver-side window. During the conversation, 

the passenger—in response to Trooper Bredsten’s questions—stated that she did not have

identification, that Garding was her boyfriend, that they had travelled from the Twin Cities, 

and that she had outstanding warrants. Although the passenger was initially hesitant to 

reveal Garding’s name to Trooper Bredsten, she eventually did so.

While speaking with the passenger, Trooper Bredsten also noticed that she had

several physical signs of “prolonged drug use,” including recently scabbed pick marks

around her mouth, bruising on her legs and arms consistent with intravenous drug use, and

decaying teeth. When Trooper Bredsten initially asked the passenger about the pick marks 

on her face, she told him that they were a result of poison ivy exposure. After Trooper 

Bredsten told her that he did not believe they were consistent with poison ivy based on his 

familiarity with such rashes as a hunter and a former military service member, the 

passenger told him that they were a result of a childhood habit of scratching and picking at 
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her skin. Trooper Bredsten then asked the passenger when she last used meth or heroin, to 

which she initially responded that she did not use drugs but then stated that she had last 

used drugs about 6 years ago. 

During this discussion, Trooper Bredsten was standing and looking down into the 

car, and he had a view of both the front and rear seat areas. For a portion of the interaction, 

Trooper Bredsten was also illuminating the car’s interior with his flashlight. He noticed

several things inside the car that seemed unusual based on his experience as a drug 

recognition expert, including a white plastic shopping bag on the rear seat that had been 

tied up and rolled over. He testified that the plastic bag caught his eye because it “looked

like there were numerous rocks on the inside.” In Trooper Bredsten’s experience,

“when you see meth, when it’s in a large amount, it breaks up like rocks and it’ll look like 

rocks from the outside within the bag.” Nonetheless, Trooper Bredsten testified on crossexamination that he was uncertain about the contents of the plastic bag before the search.

At one point while Trooper Bredsten was speaking with the passenger, he noticed 

that Garding was watching the encounter through the window of the truck stop restaurant 

before turning around and walking toward the far side of the gas station. When Trooper 

Bredsten later went inside the gas station to find Garding, the employees reported that

Garding had watched Trooper Bredsten speak with the passenger from the store window,

then left the gas station and walked toward the woods. Trooper Bredsten testified that

the direction Garding had taken was significant because “there’s no highway or really any

houses or anything beyond [the wood line], so now it looked like he wastrying to hide from

the situation and run from the vehicle.”
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Based on all his observations, Trooper Bredsten decided to have his drug dog 

conduct a sniff around the car’s exterior. The dogrepeatedly alerted to the possible presence 

of controlled substances. Trooper Bredsten then deployed the dog to sniff the car’s

interior, during which the dog again alerted. Finally, Trooper Bredsten searched the car

by hand and found approximately 410 grams of methamphetamine in the rocky-looking

bag on the rear seat. Garding was then located and arrested. 

Following the contested omnibus hearing, the parties submitted briefing on 

Garding’s suppression motion in which Garding contended that, among other things, the 

drug-dog sniff of the car’s exterior was conducted without reasonable, articulable 

suspicion. The district court denied Garding’s motion to suppress. It concluded that 

Trooper Bredsten had reasonable, articulable suspicion sufficient to proceed with the drugdog sniff of the car’s exterior, explaining:

Cumulatively, Defendant’s behaviors had been very suspicious. Defendant 

initially backed away from Trooper Bredsten, and then turned and walked 

into the gas station. Trooper Bredsten later noticed that Defendant was 

watching him interact with the female passenger from the inside of the store. 

Defendant later left the store and traveled to the woodline. There was nothing 

of interest in or beyond the woodline. Trooper Bredsten additionally 

observed signs of drug use based on his interactions with the female 

passenger. Her dental hygiene, pick marks, and bruises were consonant with 

drug use based on Trooper Bredsten’s training in controlled substances 

enforcement. After being confronted by him about drug use, her attempts to

explain these indicators changed from a bout of poison ivy to a preexisting 

medical condition. She later admitted to prior drug use, although she denied 

any recent drug use. Finally, Trooper Bredsten saw a white plastic bag that 

appeared “rocky” based on the bag’s contents pressing against the walls of 

the taut, thin plastic bag. This bag was sitting in a hat on the rear bench seat 

in plain view from the exterior. Based on all of this, Trooper Bredsten had a 
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reasonable, articulable suspicion of drug activity sufficient to justify the 

exterior dog sniff.2

After the district court denied Garding’s motion to suppress, he agreed to proceed 

with a court trial on stipulated facts under Minn. R. Crim. P. 26.01, subd. 4, preserving 

review of the district court’s ruling on his motion to suppress. The district court found 

Garding guilty of first-degree possession of narcotics, and Garding appealed the district 

court’s ruling on his suppression motion.

The court of appeals reversed, concluding that “Trooper Bredsten lacked the 

required reasonable, articulable suspicion of drug-related criminal activity to justify the 

drug-dog sniff of the exterior of the vehicle because the record lacks an objective basis 

from which an officer could reasonably infer that drugs may be present in the place he 

sought to search.” State v. Garding, No. A22-1436, 2023 WL 5696235, at *10 (Minn. 

App. Sept. 5, 2023). In reaching its conclusion, the court of appeals evaluated each 

individual circumstance that the State asserted created reasonable suspicion in isolation

and found each one independently weak. The court then summarily stated that these 

circumstances were also insufficient in the aggregate to supply Trooper Bredsten with

reasonable articulable suspicion of present, drug-related criminal activity. We granted 

review.

2 The district court found Trooper Bredsten’s testimony at the contested omnibus 

hearing credible and also addressed Garding’s attacks on the officer’s credibility based on 

two supposed variances between his testimony and the dashcam footage. The district court 

concluded that one alleged discrepancy was based on Garding’s inaccurate representation 

of Trooper Bredsten’s testimony, and the other involved dashcam footage that neither 

conclusively supported nor adversely weighed against the officer’s testimony. 
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ANALYSIS

The use of a trained narcotics-detection dog to sniff the exterior of a motor vehicle 

is not a “search” requiring probable cause under either the Fourth Amendment or the 

Minnesota Constitution. State v. Wiegand, 645 N.W.2d 125, 133 (Minn. 2002). Instead, 

before conducting such a drug-dog sniff, a police officer must have a reasonable, 

articulable suspicion of drug-related criminal activity.3 Id. at 137. 

“Reasonable suspicion must be ‘based on specific, articulable facts’ that allow the 

officer to ‘be able to articulate at the omnibus hearing that [they] had a particularized and 

objective basis’ ” for suspecting criminal activity. State v. Diede, 795 N.W.2d 836, 842–

43 (Minn. 2011) (quoting State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995)). “The 

reasonable-suspicion standard is not high.” State v. Morse, 878 N.W.2d 499, 502 (Minn. 

2016) (citation omitted) (internal quotation marks omitted). “It is enough that a law 

enforcement officer can articulate specific facts which, taken together with rational 

inferences from those facts, objectively support the officer’s suspicion.” State v. Lugo, 887 

N.W.2d 476, 486 (Minn. 2016). A trained officer may draw “inferences and deductions 

that might well elude an untrained person.” U.S. v. Cortez, 449 U.S. 411, 418 (1981); see 

also Morse, 878 N.W.2d at 502 (same). 

3 The State concedes that it is required to show reasonable suspicion. Given the 

State’s concession, we have no occasion to address the antecedent question of whether 

reasonable suspicion is required for the drug-dog sniff of a vehicle where the vehicle was 

not stopped by officers, and where the driver was not seized, not present for the drug-dog 

sniff, and not the owner of the vehicle. Accordingly, we assume but do not decide that 

reasonable suspicion is required under these circumstances.
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Reasonable suspicion is analyzed from the point of view of an objective police 

officer and in light of the totality of the circumstances. Lugo, 887 N.W.2d at 486–87. 

Where appropriate, the totality of the circumstances may be analyzed by looking first to

each identified fact supporting reasonable suspicion independently and then considering 

whether those facts, even if independently weak, are sufficient in the aggregate. See State 

v. Burbach, 706 N.W.2d 484, 490–91 (Minn. 2005).

Whether an officer has reasonable, articulable suspicion to conduct a drug-dog sniff 

presents a “mixed question of fact and constitutional law.” Lugo, 887 N.W.2d at 487. 

When reviewing a district court’s pretrial ruling on a suppression motion, we review the 

district court’s factual findings for clear error and the district court’s legal determination 

that an officer had reasonable, articulable suspicion de novo. State v. Gauster, 752 N.W.2d 

496, 502 (Minn. 2008).

The State argues that the court of appeals “did not conduct the collective, totalityof-the-circumstances assessment of the facts that is the hallmark of a proper reasonablesuspicion inquiry.” The State claims that three “critical facts,” when viewed together,

support reasonable suspicion: 1) the passenger’s physical appearance indicative of 

potential recent drug use; 2) the shopping bag in the car’s back seat that looked to contain 

rock-like items; and 3) Garding’s decision to flee into the woods behind the truck stop.

The State’s first highlighted fact relates to Trooper Bredsten’s testimony about the 

passenger’s appearance when he approached the car and spoke with her through the car’s 

partially open window. Specifically, Trooper Bredsten testified that “[t]here did appear to 

be marks around . . . her mouth and on her arms, they were kind of singular” and “[l]ooked 
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like they were relatively recent, scabbed, like pick marks.” Relying on his training and 

experience as a drug recognition expert, Trooper Bredsten testified that the presence of 

pick marks “gathered around the mouth” was consistent with drug use. In addition to the 

pick marks on the passenger’s mouth and arms, Trooper Bredsten testified that he also saw 

pick marks on her legs. He also testified that she had bruising on her arms and legs that 

may have been consistent with “prolonged” intravenous drug use. He further noted that 

the passenger had “poor dental hygiene” and exhibited stained or decaying teeth. Lastly, 

Trooper Bredsten testified that, based on his training and experience, stained or decaying 

teeth and pick marks in the form of small round scabs are “signs of prolonged drug use” 

specific to methamphetamine. 

The court of appeals acknowledged Trooper Bredsten’s testimony that the 

passenger’s “appearance was consistent with signs of ‘prolonged drug use’ and that the 

marks on her face looked like they were ‘relatively recent’ but ‘scabbed’ ” before deciding

that these facts were “not consistent with the degree of observations of recent drug use that 

[the court of appeals has] typically found to be sufficient to support a reasonable, 

articulable suspicion of drug-related criminal activity.” Garding, 2023 WL 5696235, at *7 

(comparing Wiegand, 645 N.W.2d at 137, and Burbach, 706 N.W.2d at 490–91 with State 

v. Cox, 807 N.W.2d 447, 449, 452 (Minn. App. 2011), and State v. Folkert, No. A12-0854, 

2013 WL 499764, at *1, *5 (Minn. App. Feb. 11, 2013)). The court of appeals concluded 

that recent drug use could not be reasonably inferred from the passenger’s appearance, 

essentially requiring a showing of current impairment for an officer to infer recent drug 

use. See Garding, 2023 WL 5696235, at *7–8. 
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But our court has never held that evidence of current impairment is necessary to 

infer that a person has recently used drugs. Under the totality of the circumstances, officers 

may reasonably infer a person’s recent substance use even if they do not appear to be 

currently impaired. See State v. Taylor, 965 N.W.2d 747, 757–58 (Minn. 2021). Trooper 

Bredsten testified that the scabs on the passenger’s pick marks were “relatively recent” and 

that she showed signs of “prolonged drug use,” and under these circumstances, an officer 

could reasonably infer that the passenger had recently used drugs. 

The parties disagree about the appropriate weight to be given to signs of the 

passenger’s apparent past drug use within the totality of the circumstances analysis. 4 

Garding argues that the court of appeals did not err in assigning minimal weight to this fact 

because the connection between the passenger’s appearance and current drug possession

relies on a series of questionable assumptions.5 However, the State contends that the court 

of appeals failed to appreciate how evidence of apparent past drug use lent particularized , 

corroborative weight to its second highlighted fact: Trooper Bredsten’s suspicion that the 

plastic shopping bag contained drugs. 

4 We agree with both parties that we have never announced a per se rule that prevents

an officer from relying on observed signs of potential past drug use to support a reasonable, 

articulable suspicion of drug-related criminal activity.

5 One such assumption animates Garding’s theory of the case as a whole. Namely, 

he suggests that the passenger’s physical signs of potential past drug addiction—decaying 

teeth and pick marks—were just as consistent with poverty and an attendant lack of access 

to dental and dermatological care as they were with past drug use. This assertion may well 

be true, but that does not diminish the reasonableness of the alternative inference, based on 

the officer’s training and experience, that these physical manifestations derived from past 

drug use. This inference is particularly reasonable here, as the passenger had already told 

Trooper Bredsten that she was a previous user of methamphetamine and heroin. 
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Whether current possession of drugs can reasonably be inferred from a person’s 

apparent recent drug use is a separate question that cannot be answered by looking to 

evidence of the passenger’s appearance alone. Were the passenger’s appearance the only 

sign of drug use observed by Trooper Bredsten at the time, an inference of drug possession

would likely be unreasonable. See People v. Lampitok, 798 N.E.2d 91, 107 (Ill. 2003)

(officers lacked reasonable suspicion of a defendant’s drug possession based on one 

officer’s “subjective perception” that her cohabitant was a drug user); State v. Miller, 508 

P.3d 542, 547 (Or. Ct. App. 2022) (en banc) (“[E]vidence that a defendant is a drug user 

or has recently used illegal drugs does not say much at all about whether a defendant 

currently possesses illegal drugs.”). However, depending on the totality of the 

circumstances, other facts may make the inference of current possession a reasonable one. 

See United States v. Guidry, 817 F.3d 997, 1005 (7th Cir. 2016) (reasonable suspicion 

justified a drug-dog sniff of a car during a traffic stop because the officer smelled a 

marijuana odor, recalled smelling marijuana during a previous stop of the driver, and knew

his detective bureau had evidence of the driver’s drug use); United States v. Rosian, 822 F. 

App’x 964, 967 (11th Cir. 2020) (per curiam) (reasonable suspicion justified extension of 

a traffic stop because of the defendant driver and passenger’s brief stop at a suspected drug 

house, the passenger’s appearance consistent with drug use, and the passenger’s admission 

to previous drug abuse). 

Here, other facts tend to make Trooper Bredsten’s inference of current possession 

of drugs in the car more reasonable. Trooper Bredsten’s observation of signs of the 

passenger’s past methamphetamine use had a marked impact on the reasonableness of 
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inferences an officer could draw about the contents of the opaque bag that contained 

“rock”-shaped items. The passenger’s apparent past methamphetamine use could 

reasonably augment an officer’s suspicion that the “rocky” contents of an opaque bag were 

methamphetamine because the officer had knowledge and experience that a larger quantity 

of the drug “breaks up like rocks.” Simply put, neither the “rocky” contents of the plastic 

bag nor the passenger’s apparent recent drug use were enough on their own for an officer 

to reasonably suspect that there were drugs in the car, but considered together, these two 

observations tend to make that inference a more reasonable one.

Moreover, the passenger’s appearance and the rocky bag were not the only pieces 

of information relied upon by Trooper Bredsten. The State contends that the court of 

appeals improperly dismissed evidence of Garding’s flight to the woods—the third key fact 

highlighted by the State—and we agree. The court of appeals observed that Garding’s 

behavior was “undoubtedly suspicious” but that the behavior provided no reasonable basis 

to infer that the car was involved in drug-related criminal activity. Garding, 2023 WL 

5696235, at *7.

In general, we have expressed reluctance to rely on evasive or nervous behavior as 

evidence to support a reasonable, articulable suspicion of criminal activity. See Burbach, 

706 N.W.2d at 490 (agreeing with a district court’s conclusion that a driver’s “significantly 

more than normal nervousness during a traffic stop” was “reasonable in the context of 

intense police questioning”); Wiegand, 645 N.W.2d at 137 (concluding that under 

circumstances where a driver was “evasive, nervous and had glossy eyes,” “acting 

suspiciously [was] not an articulable basis to suspect criminal activity” that would justify 
15

the drug-dog sniff of a car). However, “[h]eadlong flight—wherever it occurs—is the 

consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly 

suggestive of such.” Illinois v. Wardlaw, 528 U.S. 119, 124 (2000). Where appropriate, 

evidence of flight may therefore be considered within the totality of the circumstances 

supporting an officer’s reasonable, articulable suspicion of drug-related criminal activity. 

See Lugo, 887 N.W.2d at 487.

Still, if the only fact known to the officer was Garding’s flight to the woods, then it 

would be difficult for the officer to assert anything more than a suspicion of general 

criminality, which would not be sufficient to provide reasonable, articulable suspicion for 

a drug-dog sniff. But that fact did not stand in isolation. Garding only fled after watching 

Trooper Bredsten speak with the passenger and view items visible inside the car, which 

tends to support the inference that Garding’s flight was causally related to some concern 

about the contents of the car or what the passenger may have told Trooper Bredsten. 

Further, Trooper Bredsten knew that there was nothing of interest accessible to a pedestrian 

behind the truck stop, which reinforces the reasonable inference that Garding was 

motivated by an attempt to withdraw from any possible interaction with law enforcement 

and avoid detection. Knowing these facts—and considering them alongside signs of the 

passenger’s recent drug use and the plastic bag in the back seat that had an appearance 

consistent with large amounts of methamphetamine—gave Trooper Bredsten reasonable, 

articulable suspicion to permit a drug-dog sniff of the exterior of the car. 

The information considered by the district court at the contested omnibus hearing 

included: 1) the passenger’s signs of apparent recent drug use; 2) the plastic shopping bag 
16

appearing to contain “rock-like” items and Trooper Bredsten’s knowledge and experience 

that methamphetamine often has a similarly “rocky” shape; and 3) Garding’s flight to the 

woods after viewing Trooper Bredsten’s encounter with the passenger. Any of these facts, 

viewed independently, may be insufficient to provide reasonable, articulable suspicion for 

a drug-dog sniff. But viewed in aggregate, see Burbach, 706 N.W.2d at 490, these facts

furnished a sufficient basis for Trooper Bredsten to reasonably suspect that the car

contained evidence of drug-related criminal activity. 

Under the totality of the circumstances, including all the facts known to Trooper 

Bredsten at the time the drug-dog sniff was initiated, and the reasonable inferences drawn 

from and between those facts, Trooper Bredsten had a reasonable, articulable suspicion 

permitting him to conduct a drug-dog sniff of the car’s exterior. The district court therefore 

did not err in denying Garding’s motion to suppress the evidence obtained as a result of the 

ensuing search. Accordingly, we reverse the decision of the court of appeals.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals.

Reversed.

HENNESY and GAÏTAS, JJ., not having been members of this court at the time of 

submission, took no part in the consideration or decision of this case.