This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





William Joseph Bush,



Filed October 15, 2002


Kalitowski, Judge


Wabasha District Court

File No. K401378


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


James C. Nordstrom, Wabasha County Attorney, Karrie S. Kelly, Assistant County Attorney, 625 Jefferson Avenue, Wabasha, MN 55981 (for appellant)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant State of Minnesota appeals from a pretrial order suppressing evidence and dismissing charges of manufacturing methamphetamine and second-degree controlled substance crime.  The state argues (1) that the police had articulable suspicion supporting the stop of respondent’s truck; (2) that the officer lawfully searched respondent’s person and his vehicle; and (3) that there was sufficient evidence to show respondent constructively possessed the additional controlled substances found in a warranted search of the property.  We affirm.


            If the state appeals a pretrial suppression order in felony cases, it

must clearly and unequivocally show both that the trial 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) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).  “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.”  Id.

Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.


State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987).  

            Here, the suppression was critical because after the district court suppressed evidence gained from the search of respondent, the court dismissed the complaint against respondent for lack of evidence.


            The state contends that the stop of respondent was valid as an investigatory stop and detention under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  We agree.

            In a thorough and well-reasoned opinion, the district court found that respondent’s equipment violations “alone provided a sufficient basis for the stop.”  But the district court further found that the deputies who stopped respondent had “reasonable articulable suspicion, relayed from the detectives, that [respondent] had been involved in felony-level criminal activity” providing the basis for the deputies to conduct a “limited investigatory stop concerning [respondent’s] suspected possession and manufacturing of methamphetamine.”  Thus, we conclude the stop was a valid investigatory stop under Terry.


            The state contends the searches of respondent’s person and vehicle were valid because respondent consented to the searches.  We disagree.

Both the United States and Minnesota Constitutions protect against unreasonable searches and seizures by the state.  U.S. Const. amend IV; Minn. Const. art. I, § 10.  Warrantless searches are per se unreasonable, subject to a few “specifically established and well-delineated exceptions.”  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).  One of those exceptions holds that an officer may conduct a limited weapons frisk of a lawfully stopped person if the officer reasonably believes that the suspect might be armed and dangerous and capable of presently causing harm.  Terry,392 U.S. at 24, 88 S. Ct. at 1881.  But “during a routine stop for a minor traffic violation, a pat-down search is improper unless some additional suspicious or threatening circumstances are present.”  State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998).

            1.         Search of Person

            The district court determined that absent respondent’s consent the deputies had no lawful basis to search respondent.  But the record indicates the deputies knew respondent was engaged in suspicious activities relating to methamphetamine production.  In addition, the deputies observed odd behavior when they stopped respondent including respondent’s truck twice rolling backward.  Thus, respondent’s stop was not simply for a “minor traffic violation” as in Varnado, but involved additional suspicious circumstances that gave the deputies justification to pat down respondent for weapons.

            A weapons check is “a carefully limited search of the outer clothing * * * in an attempt to discover weapons which might be used to assault [the officer].”  Terry, 392 U.S. at 30-31 88, S. Ct. at 1884-85.  Here, the videotape recording the incident clearly shows one of the deputies immediately searching through respondent’s pockets, removing items, and placing the items on respondent’s truck. 

            We conclude that the deputy’s search of respondent goes well beyond the scope of the typical Terry stop where an officer conducts a patdown for weapons.  Thus, absent respondent’s consent to a more thorough search, the deputies’ search violated respondent’s Fourth Amendment rights.

            The state contends that respondent consented to the search.  The district court found that if respondent consented at all, it was only to a patdown for weapons, and the deputies exceeded the scope of this search.  We agree. 

            The state has the burden to prove that a defendant’s consent was given freely and voluntarily.  Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792 (1968).  The voluntariness of giving consent to a search is to be determined by the totality of the circumstances.  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  Consent is involuntary when an encounter becomes coercive and a suspect loses the right to say no to a search due to a show of official authority.  Id.  For example, mere acquiescence on a claim of police authority or submission in the face of force is not sufficient.  State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985).  But “involuntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person[.]”  Dezso, 512 N.W.2d at 880. 

            Here, the videotape of the incident reveals that the deputy asked, “Do you object to me checking your pockets?”  Respondent’s answer is unclear as the deputy immediately turned to yell at a stray dog.  In response to respondent’s inaudible answer, the deputy told respondent that he was searching respondent as a precautionary measure.

            We agree with the district court’s conclusion that the deputy was simply asking for consent to conduct a patdown for weapons, not a search for contraband, and that the deputy’s search went beyond the scope of authorization.  Further, we conclude that the state failed to prove respondent voluntarily consented to a search.  Thus, the district court correctly determined that the deputy exceeded the scope of his authority to search respondent, and any evidence uncovered from the search of respondent was properly suppressed.

            2.         Search of Vehicle

            The state also contends that respondent consented to the search of his vehicle.  But the district court found that although respondent consented to a limited search, the search went far beyond the scope consented to.  We agree.  We also agree with the district court’s determination that because the contraband found on respondent’s person was not admissible, those items did not provide probable cause for the deputies to believe the truck contained contraband.  See State v. Pederson-Maxwell, 619 N.W.2d 777, 780 (Minn. App. 2000) (stating that an officer may conduct a warrantless search of an automobile if there is probable cause to believe the vehicle contains contraband). 

            We conclude that any consent respondent gave was limited.  The officers searching respondent’s truck did not merely “look through it,” which is what they had consent for, but, as the district court found, they “thoroughly searched every part of [respondent’s] vehicle,” including searching the engine compartment, removing the hubcaps, and doing “something with the inside door panels.”  We conclude that because this thorough search exceeded the scope of the consent, the district court did not err in suppressing the evidence of methamphetamine seized from respondent’s vehicle.

            Regarding the K-9 search of respondent’s vehicle, absent consent, an officer must have a “reasonable, articulable suspicion of criminal activity” to properly conduct a drug-detection dog sniff around the exterior of a vehicle.  State v. Wiegand, 645 N.W.2d 125, 133 (Minn. 2002).  Here, the dog sniff went far beyond the exterior of the vehicle.  The K-9s were led into the cab of the truck and onto the bed of the truck.  Thus, the K-9 search was not justified absent respondent’s consent or probable cause.  Because the exclusionary rule prevents anything found on respondent from providing probable cause, his consent was necessary for the search. 

            The videotape supports the district court’s determination that respondent’s consent was arguably forced and decidedly less than voluntary.  When the deputy asked respondent if he objected to letting the K-9s search his truck, respondent said, “No, but I don’t see why you need one.  I just think . . . .”  The deputy interrupted and stated his reasons for the search including that respondent was not a diabetic but had a hypodermic needle on him.  Respondent replied, “No, I don’t . . . .”  The deputy interrupted and concluded, “OK, so you don’t object, OK.  Thank you.”  The deputy then walked away.  We conclude that the district court did not err in finding respondent’s consent to the K-9 search was “extracted from him, rather than freely given.”  Thus, we conclude that the district court did not err by suppressing the fruits of the illegal search of respondent’s vehicle.


            The state contends that the district court erred in concluding as a matter of law that appellant failed to present evidence that respondent constructively possessed the items found during the execution of the search warrant on the Roger Peters property.  We disagree.   

            A person is guilty of possessing a controlled substance if the person knows the nature of the substance and physically or constructively possesses it.  State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (Minn. 1975).  To prove constructive possession, the state must show that (a) the substance was found in a place under respondent’s exclusive control where others normally lack access, or (b) if found in a place that others had access to, a strong probability exists (inferable from other evidence) that respondent consciously exercised dominion and control over it.  Id. at 105, 226 N.W.2d at 611.  Constructive possession should be judged by the totality of the circumstances.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986). 

            Here, the officers found 118 grams of methamphetamine in a shed on the property on which respondent was observed 15 hours earlier.  But the surveillance team never observed respondent in the shed where the officers found the methamphetamine.  Additionally, the officers indicated that there was traffic in and out of the property and that the property was not secured during the 15 hours between the surveillance and the search.  Moreover, three days before the surveillance, the owner of the property reportedly purchased materials for producing methamphetamine, and officers could not determine the date of manufacture of the methamphetamine found.  Thus, we conclude the district court did not err in concluding that there was no direct or circumstantial evidence to support a finding that respondent exercised dominion and control over the methamphetamine.