This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


State of Minnesota,


Duane Glenn Betts,

Filed July 28, 1998
Short, Judge

Nobles County District Court
File No. KX97200

Hubert H. Humphrey, III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Kenneth Kohler, Nobles County Attorney, P.O. Box 607, Worthington, MN 56187 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant Public Defender, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Norton, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

A jury convicted Duane Glenn Betts of fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2(1) (1996), refusing to submit to testing in violation of Minn. Stat. § 169.121, subd. 1a (1996) and Minn. Stat. § 169.123, subd. 2a (1996), and possession of an uncased weapon in violation of Minn. Stat. § 97B.045 (1996). On appeal from those convictions, Duane Glenn Betts argues the trial court: (1) erroneously admitted evidence obtained from the investigatory stop of his vehicle; and (2) abused its discretion in admitting certain other evidence. We affirm.


On appeal from a pretrial suppression decision where the facts are not disputed, we independently determine whether the evidence requires suppression as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Evidentiary rulings rest within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. State v. Olkon, 299 N.W.2d 89, 101 (Minn. 1980).


Betts argues the trial court erred in concluding the officer lawfully stopped his vehicle. See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (concluding officer may make investigatory stop of vehicle if officer can articulate particular and objective basis for believing stopped individual engaged in criminal activity) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 694-95 (1981)). In determining the validity of an investigatory stop, we examine the totality of the circumstances, giving due regard to an officer's training and experience in law enforcement. State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (citing Cortez, 449 U.S. at 418, 101 S. Ct. at 695). A "specific and articulable suspicion" of a traffic violation will generally provide the minimal support needed for a "routine traffic check" under the Fourth Amendment. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).

The record demonstrates: (1) the officer's squad car was traveling at 65 mph when Betts's vehicle passed it; (2) radar limitations prevented the officer from "clocking" Betts's car to obtain its exact speed; and (3) the officer concluded Betts was exceeding the speed limit and pulled him over for speeding. Under these circumstances, the officer's investigatory stop of Betts's vehicle was proper. See Minn. Stat. § 169.14, subd. 2(a)(2) (1996) (establishing 65 mph speed limit); State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (concluding officer's observation of traffic law violation, however insignificant, provides objective basis for stopping vehicle).

Betts also argues the trial court erred in admitting evidence obtained from the officer's subsequent, allegedly nonconsensual, search of his stopped vehicle. See George, 557 N.W.2d at 579 (holding search of vehicle lawful if conducted with owner's valid consent) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973)). The determination of whether consent is voluntarily given is a fact question based on all the relevant circumstances. Othoudt, 482 N.W.2d at 222. The record demonstrates: (1) the officer observed furtive movements by Betts and his passenger; (2) after the stop, the officer and Betts sat in the front seat of the squad car, which was not a "restrained or locked situation"; (3) based on Betts's speech pattern and eyes, the officer suspected Betts had been driving under the influence of drugs or alcohol; (4) the officer asked Betts if he was transporting "any weapons, open containers of alcohol, or controlled substances in his vehicle," and if Betts would consent to a search for those items; (5) Betts could not remember telling the officer that he had any objections to the search and told the officer he had "nothing" in the car, "had nothing in that vehicle that was * * * against the law"; and (6) when asked about the search in a post-stop interview conducted shortly after the stop, Betts told the officer " I had nothing to hide, I guess you was [sic] more than welcome to look through it." In addition, there is no indication the officer threatened Betts or otherwise coerced his consent. See State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (holding to establish consent given, consent must be voluntary, without coercion or submission to authority). Under these circumstances, the trial court did not err in concluding Betts consented to the search of his vehicle. See State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990) (holding appropriate review standard on consent issue is whether trial court "clearly erred"); see, e.g., Schneckloth, 412 U.S. at 220, 93 S. Ct. at 2044 (upholding consent to search where defendant's responded "Sure, go ahead" to officer's request to search).


Betts finally argues the trial court abused its discretion in permitting a witness to testify about Betts's drug-related activities on the evening prior to the stop. We disagree. Evidence incidentally necessary as an element of substantive proof of charged offense is not excluded as a prior bad act even though it relates to another crime. State v. Mosby, 450 N.W.2d 629, 632-33 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). The general rule against admitting other crime evidence should not necessarily preclude the state from making out its whole case against an accused based on evidence that may be relevant to the accused's guilt of the charged crime. State v. Wofford, 262 Minn. 112, 118, 114 N.W.2d 267, 271 (1962).

Here, Betts was charged with fifth-degree possession under which the state was required to prove he either physically or constructively possessed the drugs, and he had actual knowledge of their nature. See Minn. Stat. § 152.025, subd. 2(1) (1996) (providing elements of fifth-degree possession); State v. Florine, 303 Minn. 103, 104-05, 226 N.W.2d 609, 610 (1975) (discussing state's burden of proof for possession charge). In addition, because the drugs were in a place to which others had access, the state was required to establish there was "a strong probability (inferable from other evidence) that [Betts] was at the time consciously exercising dominion and control" over them. Florine, 303 Minn. at 105, 226 N.W.2d at 611. The witness's testimony that Betts had certain drugs and drug paraphernalia in his home the night before the stop was admissible as evidence Betts "exercised dominion or control over" drugs and paraphernalia similar to that found in his car. Thus, the trial court did not abuse its discretion in admitting the testimony.


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