STATE OF MINNESOTA

IN COURT OF APPEALS

A06-697

State of Minnesota,
Respondent,

vs.

Adrian Roberts Kjorness,
Appellant.

Filed May 22, 2007

Reversed

Minge, Judge

Lyon County District Court

File No. K1-05-530

Lori Swanson, Attorney General, Peter Marker, Assistant Attorney General, 445 Minnesota Street, 1800 Bremer Tower, St. Paul, MN 55101; and

Richard R. Maes, Lyon County Attorney, Lyon County Judicial Center, 607 West Main Street, Marshall, MN 56258 (for respondent)

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

Matthew H. Morgan, Wesley T. Graham, Henson & Efron, P.A., Special Assistant Public Defenders, 220 South Sixth Street, Suite 1800, Minneapolis, MN 55402 (for appellant)

Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

In his appeal from conviction of fifth-degree controlled substance and of obstructing legal process, appellant contests the validity of a search during a traffic stop. Appellant contends that the police officer impermissibly expanded the scope of the stop by seeking consent to search appellant’s vehicle without a reasonable, articulable suspicion of an additional offense. We reverse.

FACTS

On June 23, 2005, a Marshall police officer stopped appellant Adrian Kjorness for driving over the imaginary centerline of a road. The officer approached the vehicle and asked appellant for his driver’s license. Appellant told the officer that his license was in a friend’s car. Appellant volunteered that he was on break from work. When the officer asked appellant for his name and date of birth, appellant “quickly rattled” off the requested information. The officer noted that appellant “appeared to be very nervous,” was “fidgeting in his seat and pulling on his shorts,” and wanted to use his cell phone during the stop.

The officer returned to his squad car to conduct a license check, and determined that appellant’s driver’s license was valid. The officer wrote appellant a warning for driving over the centerline and for failing to have his driver’s license in his possession. The officer returned to appellant’s vehicle, informed appellant that he was receiving a warning, and asked him if he was on break from work. Appellant reported that he was not on break, but had just left work. When appellant continued to act nervously, the officer asked appellant if he had “any guns, knives, weapons, [or] anything illegal” in his vehicle. After appellant replied that he did not, the officer asked for appellant’s consent to search the vehicle. Appellant got out of his vehicle and answered yes. The officer did not tell appellant that he was free to leave without being searched, but did tell appellant that he did not have to allow the search.

The officer entered the vehicle and opened its center console, where he found appellant’s driver’s license. Although the center console’s lower compartment was locked, the officer opened it using keys that were in the vehicle. Inside the compartment, the officer found two baggies of a leafy green substance, two bundles of a white powdery substance, a scale, and a wallet. The wallet contained $1,100 and a list of initials with a dollar amount next to each. By that point, another officer had arrived at the scene, and the officers noticed that appellant was gone. Later in the day, appellant turned himself in to law enforcement. Subsequent testing revealed that the substances found in the vehicle were methamphetamine and marijuana.

Appellant was charged with one count of fourth-degree controlled-substance crime in violation of Minn. Stat. § 152.024, subd. 2(2) (2004), two counts of fifth-degree controlled-substance crime in violation of Minn. Stat. § 152.025, subds. 2(1), 1(1) (2004), and obstructing legal process in violation of Minn. Stat. § 609.50, subd. 1(1) (2004). Appellant pleaded not guilty to the charges and moved to dismiss or suppress the evidence recovered from the vehicle, arguing that the officer violated his state constitutional rights by unreasonably expanding the scope of a routine traffic stop by requesting permission to search the vehicle. Following an omnibus hearing, the district court denied appellant’s motion. Appellant filed a motion for reconsideration. The district court denied the motion for reconsideration, concluding that appellant’s nervousness and “failure to show identification” constituted reasonable, articulable suspicion for the officer’s expansion of the scope of the stop.

Appellant entered into a Lothenbach agreement, and the case was submitted to the district court on stipulated facts. The district court convicted appellant of and sentenced him for possessing a fifth-degree controlled substance and obstructing legal process. This appeal follows.

D E C I S I O N

The issue on appeal is whether the evidence discovered as a result of the search should be suppressed and the conviction reversed because the officer improperly expanded the scope of the traffic stop when he asked for appellant’s consent to search the vehicle. The issue is narrowly framed because the parties do not disagree that if the scope was improperly expanded, the evidence discovered as a result of the search should be suppressed and the conviction should be reversed. Because appellant does not dispute that the traffic stop was justified at its inception, our inquiry is limited to whether the officer’s expansion of the stop was supported by reasonable articulable suspicion. “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 suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We review factual findings for clear error. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). If the facts are undisputed, we review de novo a district court’s determination of the legality of a stop. See Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

The Minnesota Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects” against “unreasonable searches and seizures.” Minn. Const. art. I, § 10. The scope of a traffic-stop investigation is limited to the justification for the stop. See State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004). “An initially valid stop may become invalid if it becomes ‘intolerable’ in its ‘intensity or scope.’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 1878 (1968)).

Article I, section 10 of the Minnesota Constitution limits the effectiveness of consent by the driver to expand the scope of a traffic stop. See State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005); State v. Fort, 660 N.W.2d 415, 418-19 (Minn. 2003). The basic limit is that the officer must have reasonable, articulable suspicion of criminal activity in addition to the initial traffic violation before requesting such consent to search. Id. A driver’s failure to produce a license does not raise the requisite suspicion necessary to expand the scope of an ordinary traffic stop. See Askerooth, 681 N.W.2d at 365.

But if the driver’s behavior and the circumstances of the stop “give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.” State v. Syhavong, 661 N.W.2d 278, 282 (Minn. App. 2003) (quotation omitted). The existence of reasonable suspicion “is determined from the totality of the circumstances.” Id. at 281. Therefore, even if one factor is not “independently suspicious,” several “factors in their totality” may provide an officer with reasonable suspicion to expand the scope of a stop. See State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998).

Based on their training and experience, we allow officers to “make inferences and deductions that might elude an untrained person.” Syhavong, 661 N.W.2d at 282. Officers must base their suspicions on objective facts rather than hunches. State v. Cripps, 533 N.W.2d 388, 391-92 (Minn. 1995). Nervousness, standing alone, is not an adequate reason justifying the expansion of the scope of a stop. Syhavong, 661 N.W.2d at 282. And incidental behaviors that can fairly be attributed to nervousness are not adequate. In Fort, for example, the supreme court concluded that a suspect’s nervousness and avoidance of eye contact, coupled with the fact that the vehicle was stopped in a “high drug area,” did not provide the officer with a sufficient basis on which to expand the scope of a routine traffic stop and that the consent to search was not effective. 660 N.W.2d at 419.

Here, the officer did not testify that he suspected appellant of any crime other than the initial traffic violation that formed the basis for the stop. The purpose of the stop was to address appellant’s illegal crossing of an imaginary centerline. At the time of the stop, appellant said he did not have his driver’s license. The officer did not base his request to search appellant’s vehicle on the purpose of the stop or the lack of a driver’s license.

The officer testified about appellant’s incidental behavior – inconsistent statements about whether appellant was on break or had finished work at the time, appellant’s pulling on his shorts, and his fidgeting. The officer explained, “[appellant] was acting extremely nervous for a person who was just being stopped for a minor offense, when he was told he was getting a written warning.” But the officer had not been troubled by appellant’s failure to have his driver’s license; the license search showed that appellant’s record was clean. And the officer did not suggest that appellant’s confusion and fidgeting were more than nervousness. Nervousness is a common reaction of motorists pulled over for a traffic violation. To read into that reaction an indication of circumstances that justify expansion of a routine traffic stop would give officers unlimited discretion. This would neutralize the requirement of a reasonably articulable and objective standard for suspecting criminal activity.

Here, there is no indication that the officers had reason to believe that appellant was a safety threat or that any criminal activity had occurred. The parties do not raise and we do not consider whether appellant knowingly and voluntarily consented to the search. The legality of the search and the consent depend on the adequacy of the other circumstances. Based on the record in this case and on the Burbach/Fort standard, we conclude that under the totality of the circumstances, the officer’s request for appellant’s consent to search was not supported by reasonable articulable suspicion of additional

criminal activity, that the search violated article 1, section 10, of the Minnesota Constitution, and that the evidence obtained as a result of the search is not admissible.

Reversed.

Dated: