This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Jeffrey Dean Shepherd,




Filed December 26, 2001

Foley, Judge


Crow Wing County District Court

File No. K401162



Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN  55103; and


Donald F. Ryan, Crow Wing County Attorney, Kristine R. DeMay, Assistant County Attorney, 322 Laurel Street, Brainerd, MN  56401 (for appellant)


Robert D. Miller, Robert D. Miller & Associates, 111 Marquette Avenue South, Suite 3102, Minneapolis, MN  55401 (for respondent)


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Respondent was charged with first-degree controlled-substance offense.  The district court granted respondent’s motion to suppress the evidence seized during the search of a vehicle in which he was a passenger and dismissed the complaint.  We affirm.


            At approximately 4:59 a.m. on January 23, 2001, Officer Mike Bestul of the Brainerd Police Department was patrolling in his squad car looking for Daniel Harting, who was wanted on an outstanding felony warrant for a controlled-substance offense.  Bestul noticed a vehicle parked in the middle of the street and observed a woman in the driver’s seat.  Upon investigating, he discovered that the vehicle was registered to Dawn Bowman, who possessed a valid driver’s license.  Bestul had previously been advised that Bowman was involved in controlled-substance trafficking. 

            As Bestul passed the vehicle, he noticed a man matching Harting’s description in the doorway of a nearby building.  Aware that Harting and Bowman had previously been in contact with each other, Bestul turned the squad car around to investigate.  Bestul watched as the vehicle turned onto another street and observed a male in the front passenger seat.  Because he believed the male passenger was Harting, Bestul stopped the vehicle.  Bestul approached the vehicle and spoke to Bowman who was the driver.  Because he knew Harting by sight, Bestul immediately determined that the passenger was not Harting.  Nevertheless, he asked the passenger for identification; a Washington state driver’s license identified the passenger as Jeffrey D. Shepherd, residing in Yakima, Washington.  Bestul was aware that the Bureau of Criminal Apprehension and local law enforcement were investigating controlled-substance trafficking from Yakima to Brainerd. 

            Bestul retained Shepherd’s license to request a warrants check and then asked Bowman to step out of the vehicle.  He escorted her to the squad car and asked if she had any illegal substances in the vehicle.  When she replied that she did not, Bestul asked to search the vehicle and Bowman consented.  Returning to the vehicle, Bestul asked Shepherd to get out and, upon searching the front seat, found marijuana residue and drug paraphernalia.  A further search revealed a travel bag belonging to Shepherd containing approximately 380 grams of methamphetamine.  Bestul arrested Shepherd and, in a search pursuant to the arrest, officers found a small amount of methamphetamine on his person. 

            Shepherd was charged with two counts of first-degree controlled-substance offense.  Shepherd challenged the stop, seizure, and arrest.  No testimony was taken and the motion to suppress was presented on the written investigative materials.  Determining that Shepherd had been unlawfully detained, the district court suppressed the evidence and dismissed the complaint. 


            To prevail on a pretrial appeal from an order suppressing evidence, the state must establish that the district court clearly and unequivocally erred in its judgment and that the error, unless reversed, will have a critical impact on the outcome of the trial.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).   The district court dismissed the complaint and the state therefore has demonstrated a critical impact.  Because there is no factual dispute, we need only determine whether the district court erred as a matter of law in suppressing the evidence.  See State v. Robb, 605 N.W.2d 96, 99 (Minn. 2000). 

            Once a lawful stop has occurred, a police officer is “entitled to conduct an investigation ‘reasonably related in scope to the circumstances which justified the interference in the first place.’”  United States v. Jones, 769 F.3d 919, 924 (8th Cir. 2001) (quoting Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 1879 (1968)).  No rigid time limit has been imposed on the permissible duration of a detention that follows a lawful stop.  State v. Blacksten, 507 N.W.2d 842, 846 (Minn. App. 1993).  But such a detention may continue “only as long as reasonably necessary to effectuate the purpose of the stop.”  State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (quotation omitted), review denied (Minn. Mar. 18, 1997).  Once the original suspicion justifying a stop is dispelled, a police officer may not continue to search an automobile occupant unless additional suspicion remains.  State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999).  For instance, detaining a driver to check a driver’s license constitutes an unlawful intrusion when an officer’s suspicions about a violation have been dispelled.  See State v. Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992) (when officer stopped vehicle for improper vehicle registration but noticed valid temporary permit before reaching driver’s window, officer no longer had articulable and reasonable suspicion to justify further detention), review denied (Minn. Dec. 15, 1992). 

            Here, Bestul stopped the vehicle because he thought that Harting was a passenger in it.  Before the stop, Bestul determined that the vehicle registration was current, as was the driver’s license of the owner, Bowman.  After stopping the vehicle and speaking with the driver, Bestul determined that the owner was in fact the driver, her license and registration were in order, and Shepherd was not the person he was looking for.  When Bestul discovered the passenger was not Harting, his particular and objective basis for suspecting criminal activity dissipated.  He was therefore unjustified in continuing the detention.    

            Appellant also argues that the detention and questioning of Shepherd was justified because Bestul could have lawfully stopped the vehicle based on Bowman’s violation of traffic laws, i.e. a parking and stopping violation.[1]  But while the stop was legal and may arguably be justified under the rationale the state advances, the valid stop does not cure the improper continued detention.  Again, the investigation is justified whre it is “reasonably related in scope to the circumstances which justified the interference in the first place.”  Jones, 769 F.3d at 924 (quotation omitted). 

            Here, the statutes the state advances to justify the search, Minn. Stat. §§ 169.35, subds. 1, 2, 169.041, subd. 4(8) (2000), are petty misdemeanors.  See Minn. Stat. § 169.89, subd. 1 (2000) (violations contained in chapter 169 are petty misdemeanors unless otherwise characterized).  Bestul stopped the vehicle and asked the driver for her license and registration.  Such actions are appropriate for a stop for a petty misdemeanor traffic violation because they are reasonably related to the purpose of a stop for a parking violation.  However, Bestul then asked Shepherd for his identification.  Such a request of a passenger, in an investigation for a petty misdemeanor traffic offense, is improper. 

            The state, citing United States v. Perez, 200 F.3d 576 (8th Cir. 2000) and United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000) (noting that an officer may question vehicle occupants regarding destination and purpose of trip to verify information provided by the driver), contends that an officer may question vehicle passengers during a traffic stop and order them out of the vehicle.  But an officer may broaden the investigation and question passengers in the vehicle only after the driver’s responses to questioning and the circumstances give rise to suspicions unrelated to the traffic offense for which the vehicle was stopped.  United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993).  It may also be proper for an officer to order passengers out of a stopped vehicle for the officer’s safety.  State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980).  But here, continuing the detention after questioning Bowman and after determining that Shepherd was not the person for whom Bestul was looking, exceeded the scope of the investigation that was warranted by the circumstances.

            There is no merit to the state’s argument that Shepherd was not “seized.”  “[W]ithout question, the stopping of a vehicle and the detention of its occupants constitutes a ‘seizure’ within the meaning of the Fourth Amendment.”  In re Welfare of E.D.J., 502 N.W.2d 779, 782 (Minn. 1993) (quotation omitted).  Here, Shepherd was in a vehicle that was stopped by a police officer who activated his marked squad car’s overhead bar lights.  After stopping the vehicle, Bestul asked Bowman and Shepherd for their driver’s licenses, which he retained while he escorted Bowman to the squad car for questioning.  The stop constituted a seizure.

            The state finally argues that Bowman consented to the search.  Consent to a search may be tainted by an unlawful seizure and become ineffective to justify the search.  Shellito, 594 N.W.2d at 186.  But where an illegal stop is involved, consent may be valid if the consent was “manifestly voluntary.”  Id. (quotation omitted). 

When a consent is manifestly voluntary and is not a product of an illegal arrest, it will not be deemed tainted by the arrest and will fall outside the bounds of the exclusionary rule.


State v. Hoven, 269 N.W.2d 849, 854 (Minn. 1978) (citations omitted). 

            While the district court did not make any findings regarding the consent issue, this case does not involve testimony and credibility determinations.  We therefore may determine the consent issue on the facts submitted.  Here, Bowman was only 19 years old at the time of the search.  She consented to the search shortly after being illegally detained.  Bestul asked Bowman to leave the vehicle, escorted her to his squad car, and questioned her.  When asked if there was anything illegal in her vehicle, Bowman replied there was not.  Her assent was only secured after Bestul asked if he could search her vehicle.  Bestul did not inform her that she could decline the search.  Under these circumstances, Bowman’s consent was not voluntary. 

            Because Bestul did not have reasonable suspicion to detain Shepherd after the original suspicion justifying the stop was dispelled and because Bestul did not obtain proper consent to search the vehicle, the district court did not clearly and unequivocally err in suppressing the evidence seized during the warrantless search. 



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

[1] An officer who observes a violation of a traffic law, however insignificant, has an objective basis for stopping a vehicle.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  “[I]f there is an objective legal basis for an arrest or search, the arrest or search is lawful even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.”  State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991) (citation omitted).