This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Austin Manuel Fischer, petitioner,





State of Minnesota,



Filed June 7, 2005


Kalitowski, Judge


Ramsey County District Court

File No. K0-02-2349


John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


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


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Austin Fischer contends the district court erred in denying his postconviction petition challenging his April 28, 2003 conviction for fifth-degree possession of a controlled substance (psilocyn mushrooms).  Appellant asserts that his Fourth Amendment rights were violated because:  (1) the officer who stopped him for speeding and discovered his license was suspended did not have reason to believe appellant was armed and dangerous and therefore performed an illegal pat-search; (2) the officers could not make a custodial arrest for appellant’s misdemeanor license violation and, therefore, the officers could not search him incident to arrest; and (3) the drugs found in his car must be suppressed because there was no evidence of a police inventory-search policy, and another licensed driver was present to take custody of his vehicle.  We affirm.



              The supreme court has stated that appellate courts “have an ‘obligation to extend a broad review of both questions of law and fact in postconviction proceedings.’”  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003) (quoting State ex rel. Pittman v. Tahash, 284 Minn. 365, 368, 170 N.W.2d 445, 447 (1969)).  On issues of law this court exercises de novo review, but on “factual matters, our review is limited to whether there is sufficient evidence in the record to sustain the postconviction court’s findings.”  Id.

Appellant was pulled over for speeding on May 13, 2002.  A police officer stopped appellant after clocking him traveling 65 miles per hour in a 50-mile-per-hour zone.  The officer then learned from the police dispatcher that the registered owner of the vehicle (appellant) had a suspended license.  Appellant does not dispute the validity of the stop, nor does he dispute the fact that his license was suspended at the time he was stopped.

            After identifying appellant as the driver of the vehicle, the officer asked appellant to step out of the car.  When appellant stepped out of the car, the officer immediately conducted a pat-search, during which he detected a hard object in appellant’s pocket.  When asked what it was, appellant responded, “I don’t know.”  After a brief exchange, the officer asked appellant if he could take the object out of his pocket, and appellant said “go ahead.”  The object turned out to be a digital scale, which the officer described as “drug paraphernalia” at the Rasmussen hearing.  The officer then asked appellant if there was anything in the car he should know about.  And appellant replied “No, sir.”  After another brief exchange, the officer placed appellant in the back of his squad car. 

            A second police officer arrived around the time appellant was placed in the back of the squad car.  At the Rasmussen hearing, the second officer testified that he walked around appellant’s car several times—shining his flashlight into the vehicle—and that he saw a “marijuana pipe” in plain view on the center console of the car.

The district court specifically found that the second officer “observed a marijuana pipe sitting in the center console area of the interior of the car,” thus indicating that the court believed the officer’s testimony.  See State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (credibility determinations are left to the fact-finder).  And the officer’s testimony is sufficient to support the court’s finding.  See Butala, 664 N.W.2d at 338 (stating that on “factual matters, our review is limited to whether there is sufficient evidence in the record to sustain the postconviction court’s findings”).  Because appellant does not dispute the validity of the stop, and the district court’s findings of fact indicate that the second officer’s discovery of the marijuana pipe in plain view was unrelated to the search of appellant’s person, we need not address the other issues raised by appellant.  The psilocyn mushrooms forming the basis for the possession charges here were discovered during the search of appellant’s car.  Accordingly, the only question for this court is whether discovery of a marijuana pipe, by itself, provided sufficient probable cause to search appellant’s car.

It is well settled that 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 (Minn. 1982).  Here, appellant argues that the presence of the marijuana pipe, at most a petty misdemeanor, did not provide probable cause to search appellant’s car.

The supreme court addressed a similar fact-pattern in State v. Hanson, 364 N.W.2d 786 (Minn. 1985).  In Hanson, police stopped a car after seeing it weaving and crossing over the center line.  Id. at 787.  When the officers approached the car, they “saw an open beer can on the floor and a hand-rolled cigarette surrounded by leafy material and placed in an open book that was on the seat between the [driver and a passenger].”  Id. at 788.  One of the officers opened the passenger door, asked the passenger to get out, seized the cigarette, frisked the passenger, and searched the car.  Id.  The passenger and driver were subsequently detained in police custody and, in their motions to suppress the evidence, argued that there was no justification for frisking them or searching the car.  Id. at 789.  The supreme court held that the frisks and the search of the car were justified and explained:

The frisk of their persons and the further search of the car were both clearly justified. It is true that possession of a single marijuana cigarette is a petty misdemeanor, which ordinarily does not justify a custodial arrest. Minn. R. Crim. P. 6.01, subd. 1(1)(a); State v. Martin, 253 N.W.2d 404 (Minn. 1977). However, the fact that police officers apparently do not have grounds to custodially arrest a defendant does not mean that the officers do not have grounds to conduct a search.


Id. (citations omitted).  The court went on to state that “[t]he discovery of the cigarette clearly justified the further search of the car, including the trunk.”  Id.

While appellant attempts to distinguish Hanson by citing other factors that may have been involved in that court’s probable cause determination, the Hanson court based its probable cause determination on the discovery of a “single marijuana cigarette.”  See id; see also State v. Schinzing, 342 N.W.2d 105, 110 (Minn. 1983) (holding that discovery of a marijuana cigarette butt and a “stone” used to smoke marijuana provided probable cause to search the entire vehicle, including the trunk, but remanding for findings on whether the “stone” and cigarette were discovered in plain view); State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986) (stating that “[u]pon observing evidence in plain view, a warrantless search of the remainder of the passenger compartment is justified”).  Accordingly, because appellant was lawfully stopped, and a police officer saw a marijuana pipe in plain view, we conclude that the search of the car and subsequent discovery of contraband were justified under the motor-vehicle exception to the warrant requirement.


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