This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed September 13, 2005
Halbrooks, Judge, dissenting
Olmsted County District Court
File No. K0-02-661
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Raymond F. Schmitz, Olmsted County Attorney, Daniel P.H. Reiff, Assistant County Attorney, 151 4th Street Southeast, Rochester, MN 55904 (for respondent)
Considered and decided by
following his conviction for fifth-degree controlled substance crime, appellant
On November 13, 2001, at approximately 3:55 p.m., while traveling along a highway, Olmsted County Deputy Rich Carmack observed an approaching vehicle drift over the centerline. Carmack testified that he saw that the driver, later identified as appellant, “had both his hands up to his mouth and appeared to be lighting what [Carmack] thought to be a pipe of some sort.” Although Carmack did not actually see appellant holding a marijuana pipe, he believed that appellant had such a pipe because of “the fashion in how [appellant] was lighting it.”
After passing the vehicle, Carmack made a U-turn and stopped the vehicle. Appellant gave the deputy his driver’s license but was unable to provide proof of insurance. Carmack acknowledged that he did not see a pipe or any marijuana and that appellant was not holding anything in his hands. Carmack further admitted that he did not smell any burning marijuana and that when asked, appellant denied that he had been smoking or drinking anything.
Carmack returned to his squad car and accessed appellant’s driving record, and discovered that appellant’s license was valid, but his driving record indicated that in 1997 his license had been revoked for “sold/possessed controlled sub[stance].” Carmack returned to the vehicle to give appellant “a verbal warning for crossing the centerline.”
At that point, Carmack asked appellant for consent to search the vehicle. Appellant told Carmack that he could not give permission because the vehicle was not his. Appellant said that the car belonged to Otto Baron, but was unable to provide Baron’s phone number. Carmack checked directory assistance, but was unable to locate Baron’s number. Carmack then “conveyed to [appellant] that [Carmack] believed [appellant] was trying to hide something and that [Carmack] intended to get a drug dog just to walk the perimeter of the vehicle.” According to Carmack, he “explicitly explained” to appellant that he was “not trying to threaten” him. Carmack then “[j]ust talked with” appellant in an attempt to get him to consent, and after “five or ten minutes,” appellant agreed to allow Carmack to search the vehicle.
Carmack ordered appellant out of the vehicle and pat-searched him, finding nothing. When he searched the vehicle, Carmack found a zipped fanny pack on the front passenger seat. Carmack testified that “[appellant] said it wasn’t his and . . . [that] he didn’t know how it got in the vehicle.” Appellant did not object to a search of the fanny pack. When he opened the pack, Carmack found a “one-hitter,” two small plastic bags containing what appeared to be marijuana, and some prescription pill bottles with appellant’s name on them, one of which contained two pills later identified as morphine.
Carmack arrested appellant, handcuffed him, and placed him in the back seat of the squad car. The deputy then continued searching the car and located a gray metal box underneath the passenger seat. The box contained vials of a yellowish liquid, later determined to be methadone. A follow-up investigation revealed that appellant had a valid prescription for the methadone.
After searching the car, Carmack read appellant his Miranda rights and then interviewed him. According to Carmack, after the tape recorder was no longer running, he “commented or mentioned” to appellant that he thought that appellant was smoking marijuana and that appellant admitted doing so.
Appellant was cited for possessing marijuana and released at the scene. Based on the discovery of the two morphine pills, appellant was later charged with fifth-degree controlled substance crime under Minn. Stat. § 152.025, subds. 2(1), 3(b) (2000).
At the omnibus hearing, appellant argued that the initial stop was improper and that, even if the stop was valid, appellant was unlawfully detained, thus tainting any consent to search the vehicle. The district court denied appellant’s suppression motion, ruling that appellant “did not have an expectation of privacy in the vehicle that society is willing to recognize as reasonable.”
legality of an investigative stop is a question of law, which we review
de novo. State v. Munson, 594 N.W.2d 128, 135 (
The district court denied appellant’s motion to suppress on the ground that appellant failed to present sufficient evidence to establish that he had a “reasonable expectation of privacy in the interior of the vehicle.” We do not reach this issue because the controlling issue is whether the initial stop and the continuing detention of appellant’s person was constitutionally valid. The initial stop and the extended seizure of his person is the threshold constitutional issue, not the ultimate search of the vehicle and its contents. See State v. Miller, 659 N.W.2d 275, 282 (Minn. App. 2003) (noting that passenger had standing to challenge search with drug-detection dog and his continued detention as unrelated to initial stop). Once a seizure or search becomes “unreasonable” under the constitution, any subsequent “fruits” must be suppressed. See State v. Bergerson, 659 N.W.2d 791, 797-98 (Minn. App. 2003) (explaining and applying “fruit of poisonous tree” doctrine).
stops are permitted under the constitution if there is a particularized basis
for suspecting criminal activity. State v. Fort, 660 N.W.2d 415, 418 (
Once the vehicle
was stopped, however, “the scope and duration of the . . . investigation must
be limited to the justification for the stop.”
Fort, 660 N.W.2d at 418. Any “expansion of the scope or duration of a
traffic stop must be justified by a reasonable articulable suspicion of other
Here, appellant gave the deputy his driver’s license but was unable to provide proof of insurance. The deputy acknowledged that he did not see a pipe or any marijuana and that appellant was not holding anything in his hands. The deputy further admitted that he did not smell any burning marijuana and that, when asked, appellant denied that he had been smoking or drinking anything. The deputy agreed that appellant told him that he had been using a cell phone. Finally, appellant’s driving record indicated that his license was valid. The deputy testified that he went back to the vehicle to “give [appellant] a verbal warning for crossing the centerline.”
Once the deputy’s initial suspicions were dispelled, the stop should have ended. Rather than giving appellant a warning and allowing him to leave, however, the deputy continued to detain and question him. Because the deputy lacked any objective reasonable suspicion to prolong the investigative stop once his initial suspicions were allayed, the evidence discovered during the search of the vehicle was the fruit of an unlawful search and must be suppressed. Fort, 660 N.W.2d at 419 (holding that in absence of reasonable, articulable suspicion, consent to search obtained by exploitation of routine traffic stop that exceeds scope of stop’s underlying justification is invalid).
We therefore reverse the district court’s pretrial order denying appellant’s motion to suppress.
HALBROOKS, Judge (dissenting)
I respectfully dissent. Determining whether evidence must be
suppressed based on a violation of the Fourth Amendment involves a two-step
analysis. See State v. Colosimo, 669 N.W.2d 1, 5 (
It is well established that
Fourth Amendment rights are personal and may not be vicariously asserted. See,
e.g., United States v. Payner, 447 U.S. 727, 731, 100 S. Ct. 2439,
2444 (1980) (stating that a person’s “Fourth Amendment rights are violated only
when the challenged conduct invaded his
legitimate expectation of privacy rather than that of a third party”) (emphasis
in original); United States v. Wright,
826 F.2d 938, 944 (10th Cir. 1987) (stating that “it is not grounds for
suppression [of evidence allegedly seized in violation of the Fourth Amendment]
at all that the reasonable expectation of privacy of a third party was even
flagrantly violated”). Moreover, the
party seeking suppression of evidence bears the burden of demonstrating that
his or her personal Fourth Amendment rights were violated. State
v. Robinson, 458 N.W.2d 421, 423 (Minn.
App. 1990) (citing Rakas v. Illinois,
A search cannot violate a
person’s Fourth Amendment rights unless he or she has a legitimate expectation
of privacy in the area or items searched.
Resolving the issue of whether a person has a legitimate expectation of privacy in the place searched or object seized involves a two-part test:
A court must determine: (1) whether the petitioner has asserted a subjective expectation of privacy, and (2) whether the petitioner’s subjective expectation is objectively reasonable. The first part of the test is a question of fact that we review under a clearly erroneous standard, while the second part is a question of law, dictating de novo review.
United States v. Kiser, 948 F.2d 418, 423 (8th Cir. 1991) (citation omitted).
In this case, it is clear that appellant has asserted a subjective expectation of privacy in the car that he was driving. The question is therefore whether appellant’s subjective expectation of privacy is one that society is prepared to recognize as reasonable. In denying appellant’s motion to suppress, the district court noted that
[appellant] claims he was in possession of the vehicle with the owner’s permission, yet did not know how to contact the owner to verify or negate this assertion. It is unknown to the [district] court if this was a single occurrence, or if [appellant] had had the owner’s permission to drive the vehicle on other occasions. Furthermore, it is unknown whether [appellant] and the owner had a personal or business relationship. These factors contribute to the determination of whether [appellant’s] expectation of privacy in the vehicle was reasonable.
Because of the “scarcity of information regarding the circumstances of [appellant’s] use of Mr. Baron’s vehicle,” the district court concluded that appellant had not established that he had a reasonable expectation of privacy in the interior of the car.
As previously noted,
appellant bears the burden of establishing that he had a “personal and
legitimate expectation of privacy.”
 The dissent similarly focuses on whether
appellant had an expectation of privacy in the vehicle so as to allow him to
challenge its search. But appellant had
a valid and constitutionally protected expectation of privacy in his person, so
as to keep him free of unreasonable searches and seizures. See
Even the district court was “extremely troubled” by the techniques employed by
Carmack to gain appellant’s consent for the search and by the “coercive nature
of the search involved in this case.”
“[T]he Fourth and Fourteenth Amendments require that a consent not be
coerced, by explicit or implicit means, by implied threat or covert force. For, no
matter how subtly the coercion was applied, the resulting ‘consent’ would be no
more than a pretext for the unjustified police intrusion against which the
Fourth Amendment is directed.” Schneckloth v. Bustamonte, 412
Appellant argues that “the question is not whether appellant had an expectation
of privacy in the interior of the car[,] but instead whether he had standing to
challenge the stop of his person and his . . . continued
detention.” But as the Supreme Court has
stated, the proper approach is to address the scope of a defendant’s Fourth
Amendment rights directly, rather than through the lens of standing. Rakas
 The district court also accepted that appellant had asserted an expectation of privacy.
Like the majority, I have grave concerns about the tactics employed by