This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Mustafaa Naji Fort,



Filed May 21, 2002

Reversed and remanded

Willis, Judge


Hennepin County District Court

File No. 01023086


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


Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for appellant)


Leonardo Castro, Hennepin County Chief Public Defender, James A. Kamin, First Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401-2700 (for respondent)


Teresa J. Nelson, Legal Counsel, Minnesota Civil Liberties Union, 1821 University Avenue, #N-392, St. Paul, MN  55104; and Howard S. Carp, 5401 Gamble Drive, #100, Minneapolis, MN  55416 (for amicus curiae Minnesota Civil Liberties Union)


Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for amicus curiae Minnesota County Attorneys Association)

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


The state challenges the district court’s holding that, in the context of a routine traffic stop, where police do not have an articulable basis to seek consent to search from a passenger in a car and fail to inform the passenger of his right to refuse consent to search, a subsequent search violates Article I, Section 10, of the Minnesota Constitution.  Because existing law requires a totality-of-the-circumstances analysis of consent-to-search cases, we reverse and remand.    


            In March 2001, Minneapolis police officers stopped a car for speeding and for a severely cracked windshield.  Because neither the car’s driver nor passenger, respondent Mustafaa Naji Fort, held a valid license to drive, the officers decided to tow the car and asked respondent to exit it.  After he had exited the car, an officer asked respondent whether he had drugs or weapons on him.  He said that he did not.  The officer then asked respondent if he minded whether the officer searched him for drugs and weapons.  He replied, “No, sir.”  The officer then frisked him and discovered crack cocaine in his pants pocket. 

Respondent was charged with fifth-degree controlled-substance crime.  In a pretrial motion, he asked the district court to suppress the cocaine, arguing that his consent to search was obtained in violation of his state constitutional rights.  The district court granted the motion, purporting to announce an expansion of the protection of the Minnesota Constitution by holding that “in the context of a routine traffic stop, where police do not have an articulable basis to seek consent to search a passenger and fail to inform the passenger of the right to refuse consent to search, a subsequent search violates Article I, Section 10, of the Minnesota Constitution.”  This appeal follows.   


            When reviewing a pretrial order on a motion to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in its ruling.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  When the state appeals a pretrial suppression order in a felony case, it must “clearly and unequivocally show both that the [district] court’s order will have a critical impact on the state’s ability to prosecute the defendant successfully and that the order constituted error.”  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotations omitted).  Because the state cannot prosecute respondent successfully without evidence that he unlawfully possessed a controlled substance, the district court’s suppression of the cocaine critically impacted the state’s case.           

 The state contends that the district court erred in suppressing the cocaine by ruling that in the course of a routine traffic stop, police who do not have an articulable basis for requesting a passenger for consent to search and who fail to inform the passenger of his right to refuse the request cannot perform a consent search without violating Article I, Section 10, of the Minnesota Constitution.  The state asks this court to remand, arguing that the district court’s interpretation of Article I, Section 10, unjustifiably exceeds the boundaries of established state constitutional law.  We review de novo the district court’s construction of a provision of our state constitution.  State v. Wicklund, 576 N.W.2d 753, 755 (Minn. App. 1998), aff’d,589 N.W.2d 793 (Minn. 1999). 

            Respondent, an African-American, urges this court to affirm the district court’s order.  He argues that “very few drivers can traverse any appreciable distance without violating some traffic regulation.”  See State v. George, 557 N.W.2d 575, 579 (Minn. 1997) (quotation omitted).  That fact, respondent contends, coupled with a police officer’s “enormous discretion in enforcing traffic laws” raises concerns regarding racial profiling, that is, that an officer

may take advantage of [his] right to stop motorists for routine traffic violations in order to target members of groups identified by factors that are totally impermissible as a basis for law enforcement activity.


See id. at 579-80 (quotation omitted).  He argues that the district court’s decision is limited to routine traffic stops and that it is not a departure from established Minnesota law to determine under what circumstances a request for consent to search constitutes an unwarranted invasion of privacy. 

            Article I, Section 10, of the Minnesota Constitution provides: 

            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.


This provision is virtually identical with the unreasonable-search-and-seizure provision of the Fourth Amendment to the United States Constitution.  U.S. Const. amend. IV; State v. Carter, 596 N.W.2d 654, 656 (Minn. 1999).  When construing a provision of the Minnesota Constitution, a decision of the United States Supreme Court that interprets a comparable provision of the federal constitution “is of inherently persuasive, although not necessarily compelling, force.”  Carter, 596 N.W.2d at 656 (quotation and citation omitted).  “[T]he Fourth Amendment does not require for a voluntary search that the defendant know or be told that he has a right to refuse [consent].”  State v. Dezso, 512 N.W.2d 877, 881 (Minn. 1994) (citation omitted).  In its order, the district court noted that respondent had conceded that the search did not violate his Fourth Amendment rights.      

 Under Minnesota law,

police do not need probable cause or, in proper circumstances, reasonable articulable suspicion to search if a person voluntarily consents to an officer’s request to search his person and his belongings.


Harris, 590 N.W.2d at 102 (citation omitted).   A court determines whether a defendant voluntarily consented to a search by examining the totality of the circumstances.  Id.  The absence of any protest does not necessarily mean that a defendant voluntarily consented to a search.  George, 557 N.W.2d at 580.  “[T]he issue is whether a reasonable person would have felt free to decline the officer[’s] request[] or otherwise terminate the encounter.”  Dezso, 512 N.W.2d at 880 (alteration in original) (quotation omitted).  If not, the defendant did not voluntarily consent to the search and, absent probable cause or an articulable suspicion of criminal activity to support the search, evidence obtained from that search must be suppressed.  Id. at 881; Harris, 590 N.W.2d at 102.   

            A person is seized when, under the totality of the circumstances, a reasonable person would have believed that he was “neither free to disregard the police questions nor free to terminate the encounter.”  Harris, 590 N.W.2d at 98 (quotation and citation omitted).  Therefore, circumstances that lead a court to conclude that a defendant has been seized might also lead the court to conclude that the defendant has involuntarily consented to a search. 

            In Harris, police conducting a drug-interdiction operation at a bus depot discovered marijuana and packaging materials on the defendant, a bus passenger, and in his bag after a consensual search.  590 N.W.2d at 94-96.  The district court denied the defendant’s motion to suppress the evidence, and he appealed, arguing that under Article I, Section 10, of the Minnesota Constitution, the officers illegally seized him when they boarded the bus, and he did not voluntarily consent to the search.  Id. at 94.  He asked the supreme court

to adopt, for purposes of the Minnesota Constitution, a per se rule that passengers on a bus are seized as soon as officers board a bus and announce their intent to search for drugs.


Id. at 99. 

The supreme court held in that case that, under the circumstances, the officers did not seize the defendant when they boarded the bus.  Id. at 100.  But the court expressly refused to hold that such an encounter would never constitute a seizure.  Id.  The court thus signaled its unwillingness to depart from a case-by-case, totality-of-the-circumstances approach to analyzing search-and-seizure cases.  See id. at 100, 102.

“[A] state supreme court may interpret its own state constitution as protecting individual rights to a greater extent than does the U.S. Constitution.”  Id. at 97 (citation omitted).  But absent precedent from our supreme court, we have found it inappropriate to construe a provision of the Minnesota constitution more expansively than the United States Supreme Court has construed its federal counterpart.  State v. Berge, 464 N.W.2d 595, 596-97 (Minn. App.), aff’d mem., 474 N.W.2d 828 (Minn. 1991).  This court is an error-correcting court, without the authority to change the law.  Lake George Park, L.L.C. v. IBM Mid-Am. Employees Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998), review denied (Minn. June 17, 1998). 

In Wicklund, for example, this court reversed a district court ruling that, without precedent, construed Minnesota’s constitutional provision governing free speech more expansively than the federal constitution’s.  576 N.W.2d at 755-57, 759.  In that case, we noted that the supreme court had construed our state constitution’s free-speech protections consistently with the First Amendment’s and that such a construction binds this court.  Id. at 756.  Harris thus forecloses the district court, and this court, from expanding the protections under Article I, Section 10, of the Minnesota Constitution beyond those that Minnesota law and the Fourth Amendment currently provide. 

In its order, the district court notes that its holding is not intended to resolve the problem of racial profiling but to balance

the need of police to investigate and secure the safety of the public and the need of [all] citizens of this state to be free from unreasonable impositions upon their liberty and privacy.


No one disputes that the order has a laudable goal.  But because existing law requires a totality-of-the-circumstances approach to analyzing consent-to-search cases and because this court is without authority to change the law, we reverse and remand for the district court to analyze this case under established principles of Minnesota and federal constitutional law.  We express no opinion on the issue of whether respondent voluntarily consented to the search.  

Reversed and remanded.


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