This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Paul Gerard Robertson,


Filed May 25, 2004


Minge, Judge


Stevens County District Court

File No. K8-02-231



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


Charles C. Glasrud, Stevens County Attorney, 109 East Sixth Street, P.O. Box 66, Morris, MN 56267 (for respondent)


John M. Stuart, State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414; and


Mark D. Nyvold, Special Assistant Public Defender, 332 Minnesota Street, Suite W1610, St. Paul, MN 55101 (for appellant)


            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.


 U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges his conviction of conspiracy to commit first-degree controlled-substance crime.  Because we conclude that the trooper had a reasonable and articulable suspicion to justify appellant’s seizure, and because we find that the district court did not violate appellant’s right to a unanimous verdict, we affirm.


While on patrol, a state trooper observed a car stopped at an intersection.  As the trooper passed the intersection, he saw that the vehicle’s two occupants were leaning over the center console.  Having passed the intersection, the trooper felt the vehicle had been stopped for an inordinate amount of time and decided to turn his car around to see if the vehicle’s occupants were in need of assistance.

            The trooper pulled up to the vehicle, exited his squad car, approached the driver’s side, and asked if the occupants were in need of assistance.  This is commonly known as a “welfare check.”  The driver, appellant Paul Robertson, indicated that they were not in need of help.  The trooper noticed that appellant was very nervous, was making a lot of movements with his hands, was unable to look him in the eye, and was instead looking down at the floorboards.  When the trooper asked the passenger if he was okay, the passenger would not make eye contact or answer direct questions.

As the trooper was making this inquiry, he observed several items in plain sight in the back seat of the vehicle.  These included a white tub that contained four or five packages of Sudafed, marked as containing 24 caplets each.  The trooper testified that from his training and experience he was aware that Sudafed contains ephedrine, a precursor chemical for the manufacturing of methamphetamine, that for this reason many retailers limit the purchase of Sudafed to two packages, and that appellant’s possession of at least four or five packages was therefore suspicious.

The trooper asked appellant if he had a driver’s license, to which appellant replied “no.”  Appellant also indicated that the car belonged to a friend and that he and his passenger had driven from Fergus Falls.  The trooper then requested both appellant’s and his passenger’s names and birth dates and returned to his squad car to perform a warrant check.  This check revealed the existence of arrest warrants for both individuals.

The trooper returned to the vehicle to arrest the individuals.  As appellant exited the car, the trooper observed a clear plastic pipe located on the floor of the car.  The pipe was later found to contain residue common to the smoking of methamphetamine.  The trooper, without consent from appellant or a search warrant, searched the vehicle.  The search yielded a total of seven Sudafed packages, over 100 cardboard matchbook covers, which contained red phosphorus, a precursor chemical for manufacturing methamphetamine, a silver box containing oxycontin tablets and one percocet tablet, and a black bag containing a syringe, a glass vial, and cotton swabs, all of which are items used to inject controlled substances.  Finally, the trooper found a bent spoon in the passenger’s pocket containing a residue common to that found after “cooking” methamphetamine.

Appellant was charged with conspiracy to commit a controlled-substance crime in the first degree, in violation of Minn. Stat. §§ 152.021, subd. 2a, .096 (2002).  At a contested omnibus hearing, appellant moved that all the items recovered from the search of the vehicle be suppressed because appellant had been illegally seized.  The district court denied appellant’s motion finding that the trooper had a reasonable and articulable basis for his suspicion and that appellant had been lawfully seized.  A jury found appellant guilty of the charged offense.




            The first issue is whether the district court erred by denying appellant’s motion to suppress certain evidence.  “When reviewing pretrial orders on motions to suppress evidence, we 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).  In reviewing the denial of a suppression motion, this court is bound by the district court’s factual findings unless they are clearly erroneous.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  Here the validity of the search is only challenged because appellant claims he was first improperly seized.  The determination of whether a seizure is constitutional is a question of law subject to de novo review.  State v. Olson, 634 N.W.2d 224, 228 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  When there is no factual dispute, a reviewing court determines if a police officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure.  See State v. Houston, 654 N.W.2d 727, 731 (Minn. App. 2003).


The first part of our inquiry considers whether the trooper’s actions constituted a seizure.  The Fourth Amendment of the United States Constitution and Article I, Section 10, of the Minnesota Constitution protect against unreasonable searches and seizures.  To conduct an investigatory stop, an officer must have a reasonable, articulable suspicion of criminal activity.  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80 (1968)).  To determine whether an individual has been seized, we ask whether, considering the totality of the circumstances, a reasonable person would feel free to end the encounter with the police.  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). 

First, we note that the trooper did not “stop” appellant’s vehicle. The law differentiates between the stop of a moving vehicle and the approach of an already stopped vehicle for Fourth Amendment purposes.  State v. McKenzie, 392 N.W.2d 345, 346 (Minn. App. 1986).  Here, the law is clear; the trooper did not seize appellant when he first approached the car to ascertain whether the occupants were in need of assistance.  An officer may, without any suspicion of illegal activity, approach a parked vehicle to inquire about the welfare of the occupants.  State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); Kozak v. Comm'r of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984).  Thus, the seizure did not occur when the trooper first approached the vehicle to perform a welfare check.

We also note that a single request for identification does not generally constitute a seizure; there needs to be a more substantial intrusion by the officer.  State v. Pfannenstein, 525 N.W.2d 587, 588-89 (Minn. App. 1994), review denied (Minn. Mar. 14, 1995).  This court has held that a seizure occurred where the police, in conjunction with requesting identification, also asked the defendant to exit the vehicle or sit in the officer’s vehicle while the officer performs an identification check.  See, e.g., LaBeau v. Comm’r of Pub. Safety, 412 N.W.2d 777, 779 (Minn. App. 1987); Kotewa v. Comm’r of Pub. Safety, 409 N.W.2d 41, 43 (Minn. App. 1987); Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986).  Thus, a seizure did not occur upon the trooper’s initial request for identification.

However, after inquiring of appellant and his passenger and learning that neither party had a valid driver’s license, the trooper then requested both appellant’s and the passenger’s name and birth date, and returned to his vehicle to run checks on their records.  The facts before us indicate that at this point a reasonable person would not have felt free to end the encounter with the trooper.  Unlike Pfannenstein, this is not a case where there is but one single request for identification from law enforcement.  We conclude that when the trooper requested further information from appellant following his admission that he did not possess a valid driver’s license, a reasonable person would not have felt free to leave under the circumstances and therefore appellant was seized at that time.  See Pfannenstein, 525 N.W.2d at 588-89 (holding that more intrusive requests for identification are more likely to be seizures for Fourth Amendment purposes).


The next question we must ask is whether the seizure by the trooper was reasonable and resulting search was proper.  A police officer’s investigative stop or seizure must not be “the product of mere whim, caprice or idle curiosity.”  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).  Rather, it must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that seizure.”  Id. at 921-22 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880).  A determination of a reasonable, articulable suspicion requires consideration of the totality of the circumstances.  State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). 

      Appellant argues that the trooper’s suspicion could not have been reasonable because the basis for his suspicion was impermissible.  Appellant cites to several cases to argue that nervous behavior and possession of Sudafed were not enough to justify the seizure.  For instance, in State v. Syhavong, we held that excessive nervous behavior, by itself, was not enough to justify a stop.  661 N.W.2d 278, 282 (Minn. App. 2003); see also State v. Johnson, 444 N.W.2d 824, 827 (Minn. App. 1989) (holding that an officer’s perception of a defendant’s nervousness is not sufficient by itself to constitute a reasonable suspicion and must be coupled with other particularized and objective facts).  Appellant also cites to State v. Bergerson, 659 N.W.2d 791, 796 (Minn. App. 2003) to argue that mere possession of legal items that could be used to manufacture methamphetamine, such as rubber tubing and acetone, does not create a reasonable suspicion of criminal activity.  Further, appellant argues that the four or five boxes of antihistamine observed here is not equivalent to the 30 boxes amounting to a reasonable, articulable suspicion of criminal activity present in State v. Vereb, 643 N.W.2d 342, 345-47 (Minn. App. 2002).

While it is possible that the facts articulated by the trooper individually may not have risen to the level of reasonable suspicion, we look at the totality of the circumstances at the time of the seizure.  The trooper’s specific and articulable facts must be taken as a whole and not in isolation.  Here, the trooper testified that appellant’s car was parked for an inordinate amount of time at a stop sign.  Appellant appeared nervous because he was rubbing his hands and face, was looking at the floorboards and did not make eye contact with the trooper.  Appellant’s pupils were constricted and his passenger would not respond to direct questions.  Appellant admitted that neither he nor his passenger owned the vehicle or possessed a valid driver’s license.  During the encounter, the trooper observed both the packages of antihistamine and the white tub.  While nervousness or possession of four or five boxes of antihistamine may not individually be sufficient to justify a seizure, under the totality of the circumstances here, we conclude that the trooper’s testimony supports a suspicion that is both a reasonable and an articulable basis for the seizure.  After the seizure the trooper ran the warrant check and learned of outstanding arrest warrants for both the appellant and his passenger.  The totality of the circumstances justifies not only the initial seizure, but also the continued seizure and the ensuing search.  Accordingly, the district court did not err in denying appellant’s motion to suppress the evidence resulting from the search. 


The next issue is whether appellant was denied his right to a unanimous verdict because the district court’s instructions did not require the jurors to unanimously agree as to which conspirator committed which of two overt acts alleged by the state.  Although appellant failed to object to the instruction in the district court, he now argues that this issue should be addressed because it is plain error that affected his substantial rights.

Where the appellant fails to object to jury instructions at trial, this court will decline review unless the instructions constitute a plain error affecting substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Even then, this court should “correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotation omitted).

District courts are allowed “considerable latitude” in the selection of language for jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  The jury charge must be read as a whole, and if the charge correctly states the law in language that can be understood by the jury, there is no reversible error.  State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998); State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (“The jury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.”).  “An instruction is in error if it materially misstates the law.  Furthermore, it is well settled that the court’s instructions must define the crime charged.  In accordance with this, it is desirable for the court to explain the elements of the offense rather than simply to read statutes.”  State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (citations omitted).

In State v. Stempf, this court held that “[w]here jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed, the instructions violate the defendant’s right to a unanimous verdict.”  627 N.W.2d 352, 354 (Minn. App. 2001) (citing State v. Begbie, 415 N.W.2d 103, 105 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988)).  In Stempf, this court reversed the appellant’s conviction of possession of a controlled substance when the jurors were presented with evidence that he possessed methamphetamine in a truck and also at his work.  Id. at 359.  The court held that the jury instructions violated the appellant’s right to a unanimous verdict because the jurors, in finding him guilty of possessing drugs, could have relied on separate instances of possession.  Id.

In Crowsbreast, however, the defendant was convicted of first-degree domestic-abuse homicide, which required proof of several elements, including a pattern of abuse.  The Minnesota Supreme Court held that the jury did not have to unanimously agree on what acts constituted the pattern of abuse.  629 N.W.2d at 436.  This clouds the holding in the Stempf case and complicates the determination of what is meant by the unanimity rule. 

Here, appellant was convicted of conspiracy to commit a controlled-substance crime in the first degree, in violation of Minn. Stat. §§ 152.021, subd. 2a, .096.  The state had the burden of proving that, on the date in question, appellant and his alleged co-conspirator agreed to manufacture a controlled substance and made an overt act in furtherance of that crime.  Minn. Stat. §§ 152.021, subd. 2a, .096, subd. 1, 609.175, subd. 2 (2002); see State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980) (setting out elements of the crime of conspiracy).  At trial, the state attempted to prove the overt act with two instances: “purchase and possession of antihistamines and obtaining and possessing and/or peeling matchbooks.”  The judge instructed the jury that appellant was guilty if he or another party to the conspiracy did one of the alleged overt acts with the purpose of furthering the conspiracy.  The instructions required the jurors to find only that one of the two conspirators committed one of two acts.  This is greater ambiguity than existed in Crowsbreast.  Like Stempf, this instruction potentially allowed jurors to convict appellant while disagreeing as to which alleged overt act satisfied the element.  As a result, we conclude that the trial court erred.

But, even though we conclude that the trial court’s instruction was error, we do not find it constituted plain error.  Plain error exists when the court’s instruction goes against clear and established law.  See State v. Ihle, 640 N.W.2d at 910, 917 (Minn. 2002).  Here, the district court followed the recommended jury instruction for conspiracy as provided in 10 Minnesota Practice, CRIMJIG 5.07 (1999).  See State v. Sutherlin, 396 N.W.2d 238, 241 (Minn. 1986) (finding the district court did not commit plain error when it followed the recommended instruction without objection).  Further, the law in this area is unsettled, as courts continue to grapple with the implications of Stempf on the unanimity requirement.  See Crowsbreast, 629 N.W.2d at 438 (finding the district court did not commit plain error when the error occurred, if at all, in an unclear area of the law); State v. Cross, 577 N.W.2d 721, 726-27 (Minn. 1998) (holding the jury may reach a unanimous verdict without agreeing on precisely how or when a crime was committed if those facts are not elements of the crime charged); Begbie, 415 N.W.2d at 106 (holding it is sufficient that all jurors unanimously agree on their ultimate conclusion that defendant was guilty of the ultimate charge, even though they may not have agreed upon exactly which individual was the intended victim of defendant’s act).  Therefore, we conclude that the jury instruction did not constitute plain error.

Finally, even if the CRIMJIG instruction was plain error, we conclude that it did not affect appellant’s substantial rights.  The requirement that plain error affect substantial rights is “satisfied if the error was prejudicial and affected the outcome of the case.”  Griller, 583 N.W.2d at 741.  At trial, the state alleged two overt acts and presented evidence of those acts through the trooper’s testimony.  With the ample evidence presented of the volume and variety of precursor ingredients and drug paraphernalia in appellant’s possession, we conclude the jury’s verdict was not affected by the lack of a unanimity instruction.