This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Wayne Cole Johnson,




Filed February 3, 2004

Klaphake, Judge


Marshall County District Court

File No. K101321



Mike Hatch, Attorney General, Thomas R. Ragatz, John S. Garry, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Michael D. Williams, Marshall County Attorney, 423 North Main Street, Warren, MN  56762 (for respondent)


Charles L. Hawkins, Suite 2890, 333 South Seventh Street, Minneapolis, MN  55402 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Wayne Cole Johnson was convicted of first-degree controlled substance crime under Minn. Stat. § 152.021, subd. 2(1) (2000) (possession of more than 25 grams of methamphetamine).  He was sentenced to 129 months, an upward durational departure from the presumptive sentence of 86 months.  On appeal, he argues that the district court erred by failing to suppress evidence discovered during a pat search and by refusing to grant a mistrial after the prosecutor alluded during cross-examination to appellant’s post-arrest silence.  Appellant also contends that the district court abused its discretion by imposing an upward durational departure.

            Because police had probable cause to arrest appellant prior to the pat search and because the question regarding appellant’s post-arrest silence was harmless error, we affirm.  Further, based on the exceedingly large quantity of drugs in appellant’s possession, we conclude that the district court did not abuse its discretion by imposing an upward durational departure at sentencing.


I.  Suppression of Evidence

            This court reviews the validity of a search de novo.  State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  The district court’s findings of fact are reviewed for clear error.  State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).  “If an arrest is valid, police may conduct, without a warrant, a full search of the person of the arrestee as an incident of the arrest without any additional justification.”  State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998).  Appellant argues that because he was searched prior to his formal arrest, the search itself was improper.  Where police officers have probable cause to arrest, however, they may properly conduct a search incident to arrest, even if the search occurs before the formal arrest.  In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997) (citing Rawlings v. Kentucky, 448 U.S. 98, 110-11, 100 S. Ct. 2556, 2564 (1980)).

            A warrantless arrest may be made upon probable cause.  G.M., 560 N.W.2d at 694.  Probable cause to arrest exists where a person of ordinary care and prudence would have a strong and honest suspicion that a crime had been committed, based on objective facts.  Horner, 617 N.W.2d at 795. 

            Here, the facts established:  (1) during execution of a search warrant at Judy Seader’s house, police discovered methamphetamine; (2) Seader told police that Rick Olson delivered two pounds of methamphetamine to her house; (3) Seader further told police that Olson placed the methamphetamine in a locked green toolbox and left her house with the toolbox; (4) Seader, cooperating with police, placed a monitored telephone call to Olson, indicating that some people wanted to buy “some stuff”; (5) Olson, in this call, stated that he had “some stuff” if “Wayne” hadn’t been over yet; (6) Olson asked Seader to ask his girlfriend, Pam Issendorf, to go to his house and check on his “tools”; (7) officers saw Issendorf go to Olson’s house, which is two doors away from Seader’s house, and return after a short time; (8) officers searched Issendorf’s house by consent and found no tool box; (9) during the search, Issendorf told police that appellant was at Olson’s house; (10) police saw appellant come out of Olson’s house holding a toolbox and walk toward a car; and (11) one officer recognized appellant as Olson’s cousin and as a man named “Wayne.”

            These objective facts, which are supported by the record, established probable cause for appellant’s arrest.  The search was therefore lawful as incident to an arrest.  We conclude that the district court did not err by refusing to suppress evidence recovered during a search incident to arrest.

II.  Post-arrest Silence

            In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976), the prosecutor questioned the defendant repeatedly, over defense counsel’s objections, about why he had never told police his alibi story until trial.  Id. at 613-14, 96 S. Ct. at 2242-43.  Defense counsel’s objections were overruled.  The United States Supreme Court held that the prosecution could not use the defendant’s post-Miranda silence for impeachment purposes.  Id. at 619-20, 96 S. Ct. at 2245.  The Doyle rule was specifically adopted by Minnesota in State v. Billups, 264 N.W.2d 137, 139 (Minn. 1978). 

            Appellant contends that the district court erred by refusing to grant a mistrial after the prosecutor asked him during cross examination:  “Up until today, have you ever told anyone that this dope didn’t belong to you, that it was your cousin’s, you found it in your bedroom?”  Appellant further argues that the district court compounded the error by giving a lengthy curative instruction that drew attention to the improper question.

            In Greer v. Miller, 483 U.S. 756, 107 S. Ct. 3102 (1987), the prosecutor asked why the defendant had not previously revealed his alibi.  Defense counsel quickly objected, the objection was sustained, and defendant never answered the question.  The district court also instructed the jury to ignore the question.  Id. at 759, 107 S. Ct. at 3105.  In reviewing that case, the Supreme Court concluded that because the prosecutor was not permitted to pursue the line of questioning, the objection was made and sustained, and the jury was advised to ignore the question, there was “no Doyle violation.”  Id. at 764-65, 107 S. Ct. at 3108. 

            This court has found that although it is error to ask a question touching on a defendant’s right to remain silent, where an objection is made and sustained and a curative instruction given, that error is harmless.  See, e.g., State v. Houston, 654 N.W.2d 727, 735-36 (Minn. App. 2003) (concluding if verdict is surely unattributable to error, error is harmless), review denied (Minn. Mar. 26, 2003); State v. Moore, 493 N.W.2d 606, 609-10 (Minn. App. 1992) (finding error harmless but reversing on other grounds; ordering prosecutor to not ask question on retrial), review denied (Minn. Feb. 12, 1993). 

            Here, the prosecutor asked a single question, defense counsel promptly objected, no answer was given, and the district court gave a curative instruction.  Although this curative instruction was somewhat longer than those given in the above cases, it was an accurate statement of the law.  Further, defense counsel raised the issue again with his client shortly after making two motions for a mistrial.  The evidence that appellant was guilty of first-degree possession of a controlled substance is strong enough so that, although it was error to pose the question, it was harmless beyond a reasonable doubt. 

III.  Sentencing Departure

            An appellate court reviews sentencing departure decisions of the district court under an abuse of discretion standard.  State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002).  In order to depart from the sentencing guidelines, there must be “[s]ubstantial and compelling circumstances . . . present in the record to justify departures.”  Id.  

            The basic standard for departing is “whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime described in the applicable statute.”  State v. Thao, 649 N.W.2d 414, 421 (Minn. 2002).  The sentencing guidelines contain a list of “nonexclusive” factors that may be considered aggravating, none of which are specifically applicable to this matter.  Minn. Sent. Guidelines II.D.2.b. 

            Under Minn. Stat. § 152.021, subd. 2(1) (2000), first-degree controlled substance crime includes possession of at least 25 grams of methamphetamine.  Here, appellant was arrested while in possession of over 300 grams of methamphetamine, more than 12 times the statutory amount.  The arresting officer, who is an experienced narcotics officer, testified that for the community in which the crime occurred, appellant had a large quantity of drugs, with a substantial street value of more than $30,000. 

            The district court based its sentencing departure on the extremely large quantity of drugs, which it concluded set this case apart from other crimes of a similar nature.  The district court has discretion to depart from the presumptive sentence when it finds that the conduct underlying a crime is more serious than that usually involved in committing the offense.  Under these facts, we conclude that the district court did not abuse its discretion by imposing an upward durational departure.








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