This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1223

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jason Michael Agnes,

Appellant.

 

 

Filed September 18, 2007

Affirmed

Randall, Judge

 

 

Dakota County District Court

File No. K9-05-1969

 

 

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

 

James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent) 

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Randall, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from conviction of first-degree controlled-substance offense, appellant argues that the police who stopped appellant for speeding did not have articulable suspicion to conduct a canine sniff of the vehicle after appellant declined to give consent to search the car.  Alternatively, appellant, who was convicted following a Lothenbach stipulated-facts trial, argues that because his passenger admitted to possessing some of the methamphetamine found in the car, there was insufficient evidence to prove that appellant himself possessed more than 25 grams.  We affirm.

FACTS

            Minnesota State Patrolman Tegdesch stopped appellant Jason Agnes after clocking him driving 72 miles per hour in a 55 mile-per-hour zone on Interstate 35E southbound near Interstate 494.  When Tegdesch asked for appellant’s driver’s license, appellant said that he did not have it because he lost it a few weeks earlier.  When asked for proof of insurance, appellant began to reach toward the glove compartment and then pulled away.  Patrolman Tegdesch noticed that appellant’s hands were shaking and that he was fidgety. 

            Patrolman Tegdesch invited appellant to sit in his squad car to get identifying information from the state database. [1] Appellant initially provided the name of Andrew William Agnes.  No picture was available to Patrolman Tegdesch so he asked for assistance from Trooper Boetel, who was working nearby.  The picture that Trooper Boetel obtained did not look like appellant.  Appellant explained that the picture was taken when he was 16 years old, but when stopped, he was “about 22 or 23” and said there would have been a more recent picture from a license renewal.  All of this made Patrolman Tegdesch suspicious.

            Patrolman Tegdesch began asking appellant other questions.  Appellant indicated that he was going to his aunt’s house in Apple Valley.  Appellant continued to fidget; his mouth was dry, and he kept asking for water.  Meanwhile, Trooper Boetel approached the passenger in appellant’s car, Wesley Martin Vanderveen.  He said he knew the driver only as “Baar” and had not known him for long.  Vanderveen said they were going to Shakopee or Savage to return him to his car.

            Appellant said that he had bought the car that he was driving from his sister a week earlier and that the title had yet to be transferred.  When Trooper Boetel asked appellant for identifying paperwork, appellant began to walk toward the vehicle, but “[w]hen he got close to the passenger door, he stopped, turned and said that he didn’t have anything.”  Trooper Boetel followed up by asking if he had the vehicle title in the glove box.  “He said that he did, started to walk towards the glove box, and actually reached his hand out towards the glove box and then stopped and said that he didn’t have a key for the glove box.”  For that model of car, Trooper Boetel knew that the glove box key is the same as the one for the doors and trunk.

            Trooper Boetel noticed a chrome pick on the center console.  Vanderveen willingly gave it to the officer.  Trooper Boetel saw particles on it and Patrolman Tegdesch claimed he saw residue on it (neither included that description in their reports).  Appellant said that the pick was part of a manicure set.  No other manicure tools were visible, and appellant’s hands were marked with grease and did not appear to have been manicured recently.  Based on Trooper Boetel’s experience in drug work, such picks are used to clean marijuana or methamphetamine pipes. 

            Trooper Boetel began to scrutinize the two for drug use.  Appellant had glassy eyes, was very talkative, moved his hands and arms, was constantly moving, and “[h]e would constantly swallow and . . . push his tongue to the top of his mouth, as if trying to get saliva or liquid to swallow.”  Such behavior is typical of some methamphetamine users.  The suspicious activity was noted in the officers’ reports.  The officers conferred about these observations and decided to issue a speeding ticket and search the car for narcotics. 

            They requested appellant’s permission to search his car.  He consented momentarily and then said that he wanted to call his sister first.  But because he claimed to own the car, the officers told him he could decide for himself.  Appellant did not consent to a search.  The officers told appellant that he was free to go and offered him a ride, but also informed him that they were going to search the vehicle.

            From outside appellant’s car, a drug-sniffing dog detected the scent of drugs in the front-seat area.  Inside the car, the dog picked up scents in the center console and glove box.  A subsequent search of the center console uncovered a baggie with a substance suspected to be marijuana and drug paraphernalia with drug residue.  The glove box contained three baggies with a crystal-like substance suspected to be methamphetamine, a
digital scale, unused baggies, and a small glass pipe.  Subsequent testing confirmed that the substance was methamphetamine with a total weight of 26.48 grams divided into amounts of 3.4 grams, 3.48 grams, and 19.6 grams.  Other drug paraphernalia were found in the vehicle, as well as a Minnesota photo-identification card and the key to the glove box. 

            Appellant was charged with first-degree possession of 25 grams or more of methamphetamine under Minn. Stat. § 152.021, subd. 2(1) (2004), and gross-misdemeanor false information to a police officer under Minn. Stat. § 609.506, subd. 2 (2004).  Vanderveen was charged with fifth-degree controlled-substance crime under Minn. Stat. § 152.025 (2004).  He pleaded guilty to third-degree controlled-substance crime under Minn. Stat. § 152.023, subd. 2 (2004), for a guidelines sentence and probation to be served in chemical-dependency treatment.  In addition, Vanderveen was expected to testify against appellant.  In entering the guilty plea, Vanderveen said that he met appellant approximately two weeks before the traffic stop because appellant was known for selling methamphetamine and had purchased methamphetamine from appellant immediately before the stop.  Vanderveen indicated that he owned some of the methamphetamine in the car but testified he and appellant “jointly possessed” the entire amount.

            Appellant challenged the search.  The district court denied the suppression motion.  Appellant agreed to a Lothenbach stipulated-facts trial.  The district court found appellant guilty and sentenced appellant to a downward departure of 75 months in prison, surcharge, and fees.  This appeal follows.

D E C I S I O N

I.

 

            Appellant argues that nervous behavior and lack of a driver’s license and proof of insurance during a routine traffic stop did not provide reasonable articulable suspicion of drug possession.  This court reviews the district court’s ruling on the legality of an investigatory stop de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  “In doing so, we review findings of fact for clear error, giving due weight to the inferences drawn from those facts by the district court.”  Id. (quotation omitted).

            People have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Although most searches require a search warrant, the unique nature of automobiles permits a well-established exception for searches of contraband goods transported in motor vehicles.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). 

            Justification for police to stop an automobile requires “reasonable articulable suspicion,” that is, “the stop was not the product of mere whim, caprice, or idle curiosity.”  Id. At 136 (quoting State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996)).  A stop’s scope and duration is limited to the reason for the stop.  State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003).  Any expansion of the stop requires additional “reasonable articulable suspicion of other criminal activity.”  Id. at 419.  Independent probable cause or reasonableness is necessary to support expansion of the initial intrusion.  State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004).  Use of a dog sniff to detect narcotics in a vehicle “require[s] a reasonable articulable suspicion of drug-related criminal activity before law enforcement may conduct a dog sniff around a motor vehicle stopped for a routine equipment violation.”  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002); see also State v. Miller, 659 N.W.2d 275, 278-79 (Minn. App. 2003), review denied (Minn. Jul. 15, 2003) (holding that cracked windshield justifying stop did not provide reasonable articulable suspicion to use drug-sniffing dog on vehicle).

            Several situations have been found not to provide sufficient reasonable articulable suspicion to expand a traffic stop into a search for drugs.  The nervousness of a stopped driver is not enough.  State v. Burbach, 706 N.W.2d 484, 491 (Minn. 2005).  Similarly, a driver who acts suspiciously and exhibits indicia of intoxication does not justify an expanded search.  Wiegand, 645 N.W.2d at 137 (stating that “Wiegand was evasive, nervous, and had glossy eyes,” but the officer only thought that he was acting suspiciously and was not intoxicated and thus lacked an articulable basis to suspect criminal activity); Miller, 659 N.W.2d at 279 (finding that factors such as unresponsiveness to officers, glassy eyes, and lethargic actions do not rise to a level of reasonable articulable suspicion, even when viewed by officers with experience with observing people under the influence of drugs). 

            Here, the traffic stop was justified because appellant was driving 72 miles per hour in a 55 mile-per-hour zone.  Thus, the initial stop was legitimate.  Upon stopping the vehicle, Patrolman Tegdesch asked for appellant’s license and proof of insurance, but appellant did not have them.  When Trooper Boetel obtained a picture from the name that appellant provided, the image did not look like appellant.  Appellant’s excuse for his lack of semblance to the photo did not make sense.  Patrolman Tegdesch was merely suspicious at this time.  Both Tegdesch and Boetel asked the driver and passenger questions.  They differed as to appellant’s name and their destination. 

            Appellant also acted as though he was trying to hide something.  Initially, when asked for proof of insurance, appellant began to reach for the glove box and then pulled away, saying he did not have proof of insurance.  Similarly, appellant walked toward the passenger side to get the vehicle’s title, but when he neared the passenger door, he stopped, turned, and said he had nothing.  A follow-up question about whether the title was in the glove box encouraged appellant to walk to the glove box, reach out for it, and then stop to say he did not have the glove-box key.   

            In addition, Trooper Boetel noticed a chrome pick in plain view.  Trooper Boetel knew from his experience in drug enforcement that such objects are typical of cleaning tools for marijuana and methamphetamine pipes.  Further, appellant, who had been shaky and nervous throughout the encounter, although it was merely a stop for speeding, was consistently acting in a manner typical of drug use.  Appellant had glassy eyes, was talkative, expressive with his hands and arms, and constantly moving.  In addition, appellant consistently “swallow[ed] and . . . push[ed] his tongue to the top of his mouth, as if trying to get saliva or liquid to swallow.”  Both Trooper Boetel and Patrolman Tegdesch noticed this behavior throughout the stop.  Such behavior is often found with methamphetamine users.

            This is more than the individual actions that appellant argues were in themselves not necessarily indicative of drug use to justify the dog sniff.  The articulable suspicion arises from the sum of the parts.  Trooper Boetel noted the drug-related activity in his report.  The drug search did not significantly increase the duration of the stop because Trooper Boetel had the drug-sniffing dog in his car.  The availability of the dog was not pretextual but the luck of the draw of which available officer was nearest to Patrolman Tegdesch when he needed assistance in checking appellant’s license information. 

            The district court’s order and supporting memorandum provided extensive details of these circumstances in denying appellant’s motion to suppress evidence from the search.  The district court, likewise, connected the suspicious activities to a reasonable, articulable suspicion justifying a drug search.  Given the circumstances, sufficient evidence supports expanding the traffic stop to include a dog sniff for drugs.

II.

            Appellant argues that evidence is insufficient to prove that he owned all the methamphetamine found in the car.  The state must prove “beyond a reasonable doubt all of the essential elements of the crime with which the defendant is charged.”  State v. Ewing, 250 Minn. 436, 442, 84 N.W.2d 904, 909 (1957).  In considering a claim of insufficient evidence, this court’s review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” was sufficient for the district court to reach the verdict that it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). 

            Appellant was convicted of first-degree controlled-substance crime under Minn. Stat. § 152.021, subd. 2(1) (2004).  Minnesota law provides that a person is guilty of the crime if “the person unlawfully possesses one or more mixtures of a total weight of 25 grams or more containing . . . methamphetamine.”  Minn. Stat. §152.021, subd. 2(1).  Appellant argues that the state failed to prove beyond a reasonable doubt that appellant unlawfully possessed at least 25 grams of methamphetamine when Vanderveen owned some of that amount, and 26.48 grams was the total amount in evidence that either one or both could have had in their possession.  The glove box had three baggies containing 3.4 grams, 3.48 grams, and 19.6 grams of methamphetamine.  In pleading guilty to third-degree controlled-substance crime, Vanderveen admitted that he paid $400 for a quarter ounce from appellant shortly before the stop.  Appellant placed the methamphetamine in separate baggies and placed them in the glove box.  Nonetheless, he also testified that he “jointly possessed” the entire quantity of methamphetamine in the car with appellant.  The two also smoked some of the methamphetamine before they got into the car.  Although Vanderveen had purchased some methamphetamine, he and appellant had not identified which part of the amount was Vanderveen’s.

            Appellant was the one who divided the quantity of methamphetamine, and it was secreted in a location in appellant’s car by appellant’s choice and appellant’s action.  The glove box was locked.  The key was the same key that opened the door and trunk of appellant’s car, and appellant had control over the key.  Appellant was driving the vehicle when it was stopped.  A fact-finder could infer that the driver or person in control of the vehicle knowingly possessed the controlled substances found within the vehicle.  Minn. Stat. § 152.028, subd. 2 (2004). 

            In addition, the state may prove constructive possession by showing: (a) that the police found the drugs in a place under appellant’s exclusive control and to which others did not normally have access; or (b) that, if police found the drugs in a place to which others had access, a strong probability (inferable from other evidence) exists that he was consciously exercising dominion and control over the drugs.  State v. Florine, 303 Minn. 103, 105, 226 N.W.2d 609, 611 (1975).  Appellant placed the drugs in the locked glove box.  The locked glove box indicated exclusive control over a place where people, other than appellant with his car keys, would normally not have access.  It is reasonable that a fact-finder could determine that drugs stashed in appellant’s vehicle with a lock to which he owned the key were under appellant’s dominion and control.

            Based on this evidence, appellant had possession of the methamphetamine, packaged it, and cared for it in a place locked with his own key in his own car that he was driving.  Notwithstanding any claims that Vanderveen may have to some of the methamphetamine, his share had yet to be determined based on the available evidence, and appellant controlled “that share yet to be determined.”  Considering the evidence in the light most favorable to the conviction, appellant “possessed” the methamphetamine in his car.  As the possession element is met, the evidence is sufficient for appellant’s conviction. 

            Because the evidence is sufficient for appellant’s conviction, we do not need to address the state’s argument that appellant’s Lothenbach stipulation precluded his raising a sufficiency-of-the-evidence issue.

            Affirmed.