This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Larry Benjamin Berg, Jr.,



Filed January 13, 2004

Affirmed in part, reversed in part, and vacated in part

Gordon W. Shumaker, Judge


Cass County District Court

File No. K500759




Mike Hatch, Attorney General, Cheri A. Townsend, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Earl E. Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, P.O. Box 3000, Walker, MN 56484-3000 (for respondent)


John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)




Considered and decided by Randall, Presiding Judge; Schumacher, Judge; and Shumaker, Judge.




U N P U B L I S H E D   O P I N I O N




Appellant contends that the district court erred in denying his motion to suppress the fruit of an illegal search; that the evidence was insufficient to support his conviction of a fifth-degree controlled substance crime; and that he was improperly charged with and convicted of the crime of child endangerment.  Because the search was proper and the evidence sufficient to support the drug-crime conviction, we affirm that conviction.  But, under the circumstances of this case, the law does not permit a charge or a conviction of child endangerment.  Thus, we reverse that conviction and vacate it.


Appellant Larry Berg, his two minor children, his girlfriend, and Wade Borders were staying at a cabin owned by Tony Berndt in Pillager.  Rick and Wendy DeWolf were in the process of buying the cabin, and Rick DeWolf told Berg and Borders they could stay there in exchange for work on the property.  Neither Wendy DeWolf nor Berndt knew of this arrangement.

On July 13, 2000, Wendy DeWolf went to the cabin and discovered that there were people inside, one of whom she recognized as Wade Borders.  Believing the people to be intruders, she called the sheriff.  Deputy Fagerman, who responded to the call, knew that Borders had an outstanding felony warrant in Crow Wing County.  Fagerman unsuccessfully tried to get the people inside the cabin to open the door, called for assistance, and contacted Berndt to get his permission to forcibly enter the cabin.  Berndt told him to “do whatever [he] needed to do to get into the residence.”

The officers entered the cabin and escorted the people in the back bedroom to the living room.  This included Berg, who was wearing a t-shirt and shorts.  He was told to sit on a couch.

Fagerman contacted his supervisor and was instructed to arrest the apparent intruders for burglary.  While they secured the cabin and did administrative tasks, one of the officers noticed in plain view some drying marijuana plants and drug paraphernalia.  Another officer saw a pair of pants on the floor near the couch where Berg was sitting and asked Berg who owned the pants, and he replied that they were his.  The officer picked them up and reached into a pocket and found a baggie of a substance resembling marijuana.  In another pocket he found a hypodermic needle and syringe with a red liquid inside.  After Fagerman learned what the officer found in the pants, he formally arrested Berg for possession of a controlled substance.

The state charged Berg with possession of a controlled substance and child endangerment.  While in custody, Berg waived his Miranda rights and admitted the pants were his.

Berg moved to suppress the evidence of the controlled substance on the ground the search was invalid.  The district court denied the motion, ruling that the search was incident to a lawful arrest.  The court suppressed Berg’s admission at the cabin that the pants were his because there had been no prior Miranda warning.  But the court held that, even in the absence of Berg’s admission, the search would have occurred.

A jury found Berg guilty of fifth-degree controlled substance crime and child endangerment.  On appeal, Berg challenges the district court’s denial of his motion to suppress the controlled substance, contends that the evidence was insufficient to support the possession conviction, and argues that there was no proper basis for the child-endangerment charge.




1.            Validity of the Search

When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred in not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999)This court will not reverse the district court’s findings of fact unless they are clearly erroneous.  State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999).  Once the facts have been established, the validity of a search is a question of law subject to de novo review.  See State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998) (providing “[w]hen constitutional questions are involved in the analysis, we independently review the facts to determine the reasonableness of the police officers’ action.”).

a.            Exceptions to Warrant Requirement

Berg argues that the district court erred by refusing to suppress the evidence the officers found in Berg’s pants pockets because the officer did not have a search warrant and no exceptions to the warrant requirement applied.  “Warrantless searches are per se unreasonable under the Fourth Amendment unless the search falls within one of several specific exceptions.”  State v. Search, 472 N.W.2d 850, 852 (Minn. 1991).  If police conduct a warrantless search, “[t]he state bears the burden of showing that at least one exception [to the warrant requirement] applies, or evidence seized without a warrant will be suppressed.”  State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).  Here, the applicable exceptions to the warrant requirement are (1) searches conducted with consent; (2) searches conducted incident to a lawful arrest; and (3) the doctrine of inevitable discovery.  State v. Hatton, 389 N.W.2d 229, 232 (Minn. App. 1986) (citing Katz v. U.S., 389 U.S. 347, 357-58, 88 S. Ct. 507, 514-15 (1967)), review denied (Minn. Aug. 13, 1986). 

b.            Search Conducted with Consent

Berg argues that by searching Berg’s pants the officers exceeded the scope of the cabin-owner’s consent to do whatever they needed “to get into the residence.”  The scope of a search is limited by the terms of its authorization.  Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 2401 (1980).  A search that exceeds the authorized consent is unreasonable and violates the Fourth Amendment.  State v. Powell, 357 N.W.2d 146, 150 (Minn. App. 1984), review denied (Minn. Jan. 15, 1985).  A limited voluntary consent does not authorize “indiscriminate rummagings” into a person’s possessions.  Id.  But, when an officer is lawfully present in the home, evidence may be seized if it is in plain view of the officer.  State v. Campbell, 581 N.W.2d 870, 871 (Minn. App. 1998).

Here, the officers had consent to enter the cabin and could reasonably seize evidence that was in plain view.  The items in Berg’s pockets, however, were not in plain view.  Thus, the warrantless search of Berg’s pockets exceeded an acceptable search conducted with consent and was unconstitutional, unless another exception to the warrant requirement applies.

c.            Incident to Lawful Arrest

The state argues that the search was incident to a lawful arrest because the officers were in the process of arresting Berg when one of the officers searched his pants pockets.  A person’s body and the area within his or her immediate control may be searched incident to a lawful arrest.  State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000).  “This exemption ensures officer safety by allowing officers to remove any weapons the arrestee might reach and also prevents the arrestee from tampering with or destroying evidence or contraband.”  Id. 

A search may precede arrest so long as the results of the search that precedes arrest are not necessary to support probable cause to arrest.  Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564 (1980); State v. White, 489 N.W.2d 792, 795 n. 2 (Minn. 1992).  “The test of probable cause to arrest is whether the objective facts are such that under the circumstances a person of ordinary care and prudence (would) entertain an honest and strong suspicion that a crime has been committed.”  State v. Johnson, 314 N.W.2d 229, 230 (1982) (quotation and citation omitted).

The record shows that officers were able to see at least one person inside the cabin and they repeatedly attempted to get him or any other occupant to come to the door.  After determining that the cabin owner had not authorized anyone to be in the cabin, a person of ordinary care and prudence would have a strong suspicion that a crime had been committed.

Once inside the cabin, the officers discovered in plain view evidence of a controlled-substance crime.  None of the occupants claimed ownership of the controlled substances.  The officers had probable cause to arrest all adult occupants.  That entitled them to conduct a search incident to arrest.

The next issue is whether the police officers exceeded the scope of the warrantless search incident to Berg’s arrest.  To constitute a lawful search incident to arrest, police must confine their search to the arrestee’s person and the area within his immediate control—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.  Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040 (1969). 

Further defining the scope of a search incident to an arrest, this court has held that where a suspect was lying face down and his duffle bag was 35-40 feet away, police officers were justified in searching the duffle bag without having first obtained a search warrant.  Geer v. State, 406 N.W.2d 34, 36 (Minn. App. 1987), review denied (Minn. July 15, 1987).  In that case, Geer claimed that the incident-to-lawful-arrest exception could not support the search because he could not have reached into his bag to obtain a weapon or destroy evidence.  This court explained, “the search incident to lawful arrest exception is a ‘bright line’ rule allowing a warrantless search whenever such an arrest is made, ‘regardless of whether the officer can articulate any need in that case for such a search.’  Id. (quoting State v. Rodewald, 376 N.W.2d 416, 419-20 (Minn. 1985)).  The court also stated, “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.  It is the fact of the lawful arrest which establishes the authority to search.”  Id.  The Geer court concluded, “the search incident to the arrest was unquestionably valid.  The mere fact that Geer’s duffel bag was 35-40 feet away from him at the time of the search cannot serve to invalidate the search.”  Id. 

Here, when the search was conducted, the pants were on the floor next to the couch on which Berg sat.  The officer who searched Berg’s pants testified that he moved the pants to see if there were any weapons or drugs nearby and that he searched the pants for safety reasons and because of the drugs the officers had already found in the cabin.  We hold that under Geer this search was within the scope of searches incident to a lawful arrest.

However, at the time of Berg’s formal arrest, the only evidence that the pants belonged to him, other than an inference of ownership, was his admission.  The district court suppressed that admission.  Without Berg’s admission, the evidence merely is that Berg had come from another room wearing only a t-shirt and shorts, that the officer had told him to sit on the living-room couch, and that there were pants on the floor near where Berg was sitting.

The district court ruled that, even without Berg’s admission at the scene, the drugs in the pants would have been discovered, and thus the evidence was admissible.  State v. Licari, 659 N.W.2d 243, 254 (Minn. 2003).  But this is only part of the issue.  Even though the pants and the drugs likely would have been discovered, perhaps through an inventory of the items found in the cabin, there was nothing in the pants or about the pants that linked them to Berg.

However, that link was established when Berg later admitted, after receiving a Miranda warning and waiving his right to remain silent, that the pants were his.

Thus, there occurred a search incident to a lawful arrest during which an officer discovered evidence of a controlled substance in pants that Berg later admitted were his.  The district court did not err in denying Berg’s motion to suppress the evidence found in the pants.

2.            Sufficiency of the Evidence

            Berg argues that the circumstantial evidence that he was exercising control over the pants in which the drugs were found was insufficient to find constructive possession of the drugs and does not support a conviction of fifth degree controlled substance offense.  He argues that the evidence could also support a rational hypothesis that Borders planted the drugs in Berg’s pants pockets.

In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  “Circumstantial evidence is entitled to as much weight as other evidence.”  State v. Denison, 607 N.W.2d 796, 799 (Minn. App. 2000), review denied (Minn. June 13, 2000).  “A conviction based on circumstantial evidence merits stricter scrutiny.”  Id. 

In cases based on circumstantial evidence, “[a]s in all cases, the jury determines the credibility and weight given to the testimony of individual witnesses.”  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State. v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

A person is guilty of controlled substance crime in the fifth degree if:  (1) the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV, except a small amount of marijuana.”  Minn. Stat. § 152.025, subd. 2 (1998).  Here, whether Berg “possessed” the substance depends on a finding of constructive possession.

The purpose of the constructive-possession doctrine is to include within the possession statute those cases where the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the substance but rather continued to exercise dominion and control over it. 


State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975).  In order to prove constructive possession, the state must show either (a) that the police found the item in a place under defendant’s exclusive control to which other people did not normally have access, or (b) that, if police found the item in a place to which others had access, “there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.”  Id. at 105, 226 N.W.2d at 611.  Proximity is an important factor in establishing constructive possession.  State v. Cusick, 387 N.W.2d 179, 181 (Minn. 1986).  But this court considers the totality of the circumstances in determining whether the evidence was sufficient to prove constructive possession.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).

In Denison, appellant argued that she was “merely passively present” at the location where her husband kept his marijuana.  Denison, 607 N.W.2d at 800.  This court rejected the argument because marijuana was “located in close proximity to appellant’s personal effects.”  Id.  See also State v. Colsch, 284 N.W.2d 839, 841 (Minn. 1979) (holding defendant guilty of possession where drugs were located in bedroom where defendant kept clothing and other items); State v. Mollberg, 310 Minn. 376, 390, 246 N.W.2d 463, 472 (1976) (holding defendant possessed marijuana located in a closet where he kept personal items). 

Here, when the police arrived, Berg was in the back bedroom, but his pants were in the living room where Borders was lying on a couch.  Berg admitted, after a Miranda warning, that the pants were his.  The record does not support the state’s assertion that the officer found Berg’s wallet in his pants pocket and that he admitted that it was his; but Berg did admit that money found in the pockets was his.  He stated that there may have been a hypodermic needle in his pants pocket because he gives his son a shot every day. 

Under Denison, because the drugs were located in Berg’s pants pockets with other personal effects, there is a strong probability that Berg exercised dominion and control over the pants.  In addition, there is nothing in the record to suggest why Borders would have hidden drugs in Berg’s pockets while leaving drying marijuana plants and drug paraphernalia in plain view or that Borders ever exercised control over Berg’s pants.  Thus, the jury correctly weighed the circumstantial evidence and found that Berg was in exclusive control of the pants and the state proved constructive possession.

3.         Child Endangerment

Berg argues that he should not have been sentenced for both possession of a controlled substance and child endangerment.  The state agrees, and adds that “Minnesota statutes prevent a person from being convicted of child endangerment under Minn. Stat. § 609.378, subd. 1(b)(2) based on fifth-degree possession under Minn. Stat. § 152.025.”  See Minn. Stat. § 609.378, subd. 1(b)(2) (1998) (providing that various degrees of controlled substance crime, but not fifth-degree possession, if committed in the presence of a child constitute child endangerment).  We agree with the state and Berg that Berg’s child-endangerment conviction must be vacated. 

Affirmed in part, reversed in part, and vacated in part.