This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Robert Rosas,


Filed September 30, 1997


Harten, Judge

Polk County District Court

File No. K2-96-414

John M. Stuart, Minnesota State Public Defender, Elizabeth I. Wrobel, Assistant State Public Defender, 2829 University Avenue S.E., Ste. 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, Todd P. Zettler, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Wayne H. Swanson, Polk County Attorney, 101 Crookston Professional Center, 223 East Seventh Street, Crookston, MN 56716 (for respondent)

Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.



Robert Rosas appeals his conviction for possession of marijuana, arguing for the first time on appeal that the marijuana should be suppressed because the police lacked reasonable suspicion to stop Rosas. Rosas also argues that his constitutional rights were violated when Minnesota police returned him to Minnesota without first bringing him before a North Dakota magistrate as required by North Dakota's fresh pursuit statute, and that the district court erred in refusing to suppress the marijuana based on this violation. We affirm.


On April 5, 1996, local police were preparing to execute a search warrant at Lee Trevino's residence in East Grand Forks, Minnesota, where sales of marijuana and cocaine had occurred within the preceding year. While Officers Moreno and Quanrud were surveilling the residence, they saw three men walk toward a nearby vehicle. The physical appearance of one of the men was similar to the known description of Trevino, for whom there were outstanding warrants. The officers ran a license check on the vehicle and found it to be registered to Nathan Hendricks, who had previously sold marijuana to a confidential informant.

The officers began to follow the vehicle in an unmarked car and requested that a marked patrol car stop the vehicle. Officer Robertson responded and activated his red lights. The vehicle did not stop and appeared to increase speed as it entered a ramp to cross the bridge into Grand Forks, North Dakota.

When the vehicle was approximately 3/4 of the way across the bridge, Officer Moreno saw Rosas, the front-seat passenger, throw a white-colored object from the vehicle. The object landed on the frozen river below. After crossing the bridge into North Dakota, Officer Quanrud stopped the vehicle.

Officer Moreno asked Rosas what he had thrown. Rosas replied that he had thrown a beer. Officer Manais searched the riverbank and discovered no open containers but found on the frozen river a white bag containing what proved to be 322 grams of marijuana in three ziplock plastic bags. Officer Moreno inspected the bag and identified it as the same bag that Rosas had thrown from the vehicle.

After consulting with North Dakota police officers regarding jurisdiction and arrest procedures, and being advised that they had the powers of arrest, Minnesota police arrested Rosas and transported him to the East Grand Forks Police Department where he was charged with possession of marijuana.

Rosas filed a motion to suppress the marijuana and dismiss the complaint because he was transported from North Dakota to Minnesota in violation of North Dakota's fresh pursuit statute. Rosas did not, however, raise any Fourth Amendment challenges to the stop itself. The district court ruled that the violation was statutory, not constitutional, and refused to suppress the marijuana. Rosas was subsequently convicted of possession of marijuana in a bench trial on a stipulated record.


Because the facts in this case are undisputed and the district court's decision is primarily a question of law, we independently review the record to determine whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

1. Fourth Amendment Challenge. Because Rosas did not challenge the constitutionality of the investigatory stop in the district court, he has waived this issue. See Minn. R. Crim. P. 10.03 (failure to raise any defense available to the moving party in a pretrial motion constitutes waiver of that defense); see also Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (validity of warrantless arrest waived because issue was not raised in district court); State v. Merrill, 274 N.W.2d 99, 109 (Minn. 1978) (validity of search waived because issue was not raised at omnibus hearing or trial).

Nevertheless, even if we did not deem the issue waived, we conclude that the record supports the constitutionality of the investigatory stop. According to the record, the backseat passenger fit the description of Trevino, and the officers knew of outstanding warrants against him. Therefore, at the time Officer Robertson activated his lights, the officers had reasonable suspicion to stop the vehicle for the limited purpose of confirming or dispelling their belief that the backseat passenger was Trevino. The fact that the backseat passenger proved not to be Trevino does not alter our conclusion that the investigatory stop was reasonable and thus constitutional. See State v. Sanders, 339 N.W.2d 557, 560 (Minn. 1983) (upholding stop of vehicle based on arrest order for person reasonably but erroneously believed to be driving).

2. Violation of North Dakota Statute. Rosas argues that the marijuana should be suppressed because his arrest and return to Minnesota without first having been brought before a North Dakota magistrate violated North Dakota's fresh pursuit statute and hence his constitutional right to due process.

Although it does appear that North Dakota's fresh pursuit statute was violated, we do not find that this violation warrants suppression of the marijuana. In order for evidence to be excluded as "fruit of the poisonous tree," it must be found that it was obtained by exploitation of a prior illegality. State v. Sorenson, 441 N.W.2d 455, 458 (Minn. 1989). Because the marijuana was discovered before the violation of the fresh pursuit statute, the marijuana was not obtained through exploitation of the violation and should not be suppressed on this basis.