State of Minnesota v. Elliott Patrick Ketz

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1163

State of Minnesota,
Respondent,

vs.

Elliott Patrick Ketz,
Appellant.

Filed August 17, 2015
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27CR1222032

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant); and

Timothy Droske, Tiana Towns, Special Assistant Public Defenders, Dorsey & Whitney,
L.L.P., Minneapolis, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Schellhas, Judge; and

Reyes, Judge.
 UNPUBLISHED OPINION

REYES, Judge

Appellant Elliott Patrick Ketz contends that his conviction should be reversed

because (1) the district court erred in denying his motion to suppress the evidence; (2) the

methamphetamine discovered during the search should not have been admitted into

evidence because the state did not properly establish its chain-of-custody; (3) the

evidence is insufficient to support his conviction for the sale offense; and (4) the district

court abused its discretion by imposing a 189-month sentence. We affirm.

FACTS

Officer Bartholomew and Sergeant Robinson, two undercover Minneapolis

officers, were working in North Minneapolis on July 10, 2012, at around 10:30 p.m.

when they observed a vehicle parked in the middle of an alley with its lights off. The

officers proceeded down the alley towards the parked vehicle in their unmarked SUV.

As they got closer, the driver of the vehicle turned the vehicle’s headlights on and pulled

forward so that the SUV could pass. The driver was later identified as T.T.

The officers drove by and noticed a man standing next to an unoccupied vehicle in

the driveway adjacent to the alley. Officer Bartholomew observed the man pull on the

passenger door handle of the vehicle and that the man was holding a small bag in his

other hand. He then saw the man “sprint” back to T.T.’s vehicle and the vehicle “sped

away at a high rate of speed.” Officer Bartholomew alerted other officers of a possible

automobile theft in progress and provided the license plate number and description of

T.T.’s vehicle. The man was later identified as appellant.

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 The two undercover officers followed the vehicle. At that time, uniformed

Officers Tidgwell and Tucker spotted T.T.’s vehicle and activated the emergency lights

in their marked squad car to initiate a traffic stop. As they drove behind T.T.’s vehicle,

Officer Tidgwell observed appellant talking to T.T. and leaning forward in his seat “bent

over at the waist,” appearing as though he was maneuvering his hands underneath the

seat. The vehicle did not stop right away and instead turned right at an intersection and

continued for a short distance before pulling over. Officers Pucely and Yang arrived in

another marked squad car to assist.

As Officer Tidgwell approached the passenger side of the vehicle, he noticed that

appellant was still moving around in his seat. Officer Tidgwell yelled for him to put his

hands up but appellant continued moving his hands around and reaching down

underneath the seat. Appellant was ordered to show his hands and get out of the vehicle

multiple times before he complied. Officer Tidgwell and two other officers pulled him

out of the vehicle, brought him back to the squad car, and handcuffed him.

Officer Pucely searched the area around the front passenger seat. He discovered a

small blue bag underneath the seat where appellant had been sitting. The bag contained

three packages of suspected methamphetamine, a small bag of suspected marijuana, a

glass pipe, a small spoon, and a digital scale. All three packages containing suspected

methamphetamine field-tested positive for methamphetamine. Officer Pucely weighed

the three samples which revealed their respective weights with packaging as 10.5 grams,

0.7 grams, and 9.3 grams for a total of 20.5 grams. Appellant was charged with one

count of first-degree sale of a controlled substance in violation of Minn. Stat. § 152.021,

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subd. 1(1) (2010), and one count of second-degree possession of a controlled substance in

violation of Minn. Stat. § 152.022, subd. 2(a)(1) (2010).

Prior to trial, appellant moved to suppress the evidence, arguing that the stop was

not supported by a reasonable, articulable suspicion and that the search exceeded the

scope of the initial stop. The district court denied appellant’s motion. The district court

concluded that there was a reasonable, articulable suspicion to conduct the subsequent

search of T.T.’s vehicle for a weapon based on appellant’s furtive movements inside the

vehicle and failure to comply with the officer’s orders to show his hands and exit the

vehicle. Appellant waived his right to a jury trial and the matter was scheduled for a

court trial.

At trial, the district court heard testimony from T.T., appellant, Officers

Bartholomew, Tidgwell, and Pucely, and a forensic scientist from the Bureau of Criminal

Apprehension (BCA). T.T. testified that she picked up appellant from his residence that

evening to buy methamphetamine. T.T. had previously purchased methamphetamine

from appellant on two or three other occasions, and she had never possessed more than

one gram at a time. Appellant denied selling methamphetamine and denied that the bag

containing contraband belonged to him. Appellant testified that he was getting a ride

from T.T. to run an errand.

Officer Pucely testified that after he conducted a field test of the

methamphetamine, the packages were switched over to different bags by another officer

in preparation for testing by the BCA. Officer Pucely had training and experience

performing field tests on controlled substances. He stated that a baggie used to package

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methamphetamine typically weighs between 0.1 grams to 0.3 grams. In his experience,

the sample containing 0.7 grams (including packaging) of methamphetamine was

consistent with an amount for individual use, whereas the weight of the other two

samples was more consistent with an amount intended for distribution. Exhibit 3

contained the 10.5 grams and 0.7 grams of methamphetamine. Exhibit 5 contained the

sample of 9.3 grams of methamphetamine. Both exhibits were received into evidence

without any objection.

Myha Le, a forensic scientist from the BCA, testified that (1) Exhibit 3, also

known as BCA Item No. 1, weighed 7.4 grams and tested positive for methamphetamine

and (2) Exhibit 5, also known as BCA Item No. 2, weighed 5.8 grams and tested positive

for methamphetamine. Both samples were weighed without packaging and totaled

13.2 grams. The BCA report corroborated Le’s testimony and was received into

evidence without any objection. The district court found appellant guilty of both counts

and sentenced him to 189 months in prison. This appeal followed.

DECISION

I. The district court did not err in denying appellant’s motion to suppress the
evidence.

Appellant argues that the district court erred when it denied his motion to suppress

the evidence because (1) “there is nothing in the record” to support its finding that the

officers had a reasonable, articulable suspicion that appellant was engaged in criminal

activity and (2) the officers impermissibly broadened the scope of the stop when they

searched T.T.’s vehicle.

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 When reviewing a district court’s pretrial order on a motion to suppress evidence,

“we review the district court’s factual findings under a clearly erroneous standard and the

district court’s legal determinations de novo.” State v. Jordan, 742 N.W.2d 149, 152

(Minn. 2007). A finding of fact is clearly erroneous if, after reviewing the record, this

court “reaches the firm conviction that a mistake was made.” State v. Kvam, 336 N.W.2d

525, 529 (Minn. 1983). We review de novo a district court’s determination that there

existed a reasonable, articulable suspicion justifying a search. State v. Britton, 604

N.W.2d 84, 87 (Minn. 2000).

A. The seizure

The Fourth Amendment to the United States Constitution guarantees the “right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. The

Fourth Amendment also protects the right of the people to be secure in their motor

vehicles. See Britton, 604 N.W.2d at 87. As a general rule, a law-enforcement officer

may not seize a person traveling in a vehicle without probable cause. State v. Flowers,

734 N.W.2d 239, 248 (Minn. 2007).

A law-enforcement officer may, however, “consistent with the Fourth

Amendment, conduct a brief, investigatory stop” of a motor vehicle if “the officer has a

reasonable, articulable suspicion that criminal activity is afoot.” State v. Timberlake, 744

N.W.2d 390, 393 (Minn. 2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.

Ct. 673, 675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85

6
(1968))). A reasonable suspicion exists if, “in justifying the particular intrusion the

police officer [is] able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S.

at 21, 88 S. Ct. at 1880. The reasonable-suspicion standard is not high, but the suspicion

must be “something more than an unarticulated hunch.” State v. Davis, 732 N.W.2d 173,

182 (Minn. 2007) (quotation omitted).

Officer Bartholomew testified that, in his experience, a vehicle parked in an alley

with its lights out is behavior consistent with the commission of a crime. Additionally,

he observed appellant standing next to an unoccupied, parked vehicle and pulling at the

handle of the passenger door while holding a bag in his hand. This was an area where

there had been a lot of burglaries, thefts, and robberies. Officer Bartholomew observed

appellant sprint back to T.T.’s vehicle before the vehicle sped out of the alley. Based on

the totality of the circumstances, we conclude that the officers had a reasonable,

articulable suspicion that criminal activity was afoot and thus the Terry stop of T.T.’s

vehicle was justified.

Appellant relies on Britton to argue that Officer Bartholomew’s suspicion was not

objectively reasonable because his “stated rationale for stopping [the] car would support

stopping any car at all.” 604 N.W.2d at 89. We are not persuaded. In Britton, two

officers conducted a traffic stop of a vehicle based on the sole observation of a broken

rear passenger window covered with a plastic bag. Id. at 86. The officer who initiated

the stop testified that, in his experience, a broken window was an indication that a vehicle

may have been stolen. Id. Upon review, the Minnesota Supreme Court explained that,

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while deference is given to police officer training and experience, the officer’s stated

rationale for stopping Britton’s vehicle “would support stopping any car at all with a

broken window.” Id. at 89. Accordingly, the court held that without any other

articulable reasons, that observation alone was insufficient to justify the Terry stop. Id.

Unlike Britton, here, the district court found numerous facts in the record to

support its conclusion that Officer Bartholomew had a reasonable, articulable suspicion

that a possible automobile theft was in progress. As stated above, appellant was pulling

on the handle of an unoccupied parked car, while another car was parked in the alley with

its lights out and appeared to be waiting for appellant in a high-crime area. Officers

observed appellant sprint back to that vehicle. The vehicle sped out of the alley at a high

rate of speed. Each of those factors alone could be explained as completely lawful

conduct and insufficient to justify Officer Bartholomew’s suspicion. But taken together,

we conclude that these facts establish a reasonable, articulable suspicion that criminal

activity was afoot.

B. The search

A police officer may conduct a limited pat search of a seized person for weapons

on less than probable cause if he can “point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant the intrusion.”

State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (quoting Terry, 392 U.S. at 21, 88

S. Ct. at 1880). Moreover, our courts have stated “that an officer may conduct a

protective search of the passenger compartment of the vehicle, limited to those areas in

which a weapon may be placed or hidden” if the officer has a reasonable, articulable

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suspicion that the person stopped is engaged in criminal activity and the officer possesses

a reasonable belief, based on articulable facts, that the person is dangerous and can gain

immediate access to control of a weapon. Flowers, 734 N.W.2d at 251 (quotation

omitted). The burden is on the state to allege specific and articulable facts that establish

that such objectively reasonable suspicion exists. Id. at 256.

In Flowers, the Minnesota Supreme Court concluded that officers had a

reasonable, articulable suspicion that the defendant was armed where the defendant failed

to immediately stop his vehicle during the traffic stop and was making several furtive

movements. Id. at 252. Similarly, in the instant case, appellant made furtive movements

while the officers were conducting a traffic stop and he failed to comply with Officer

Tidgwell’s request to exit the vehicle and show his hands. Officer Tidgwell testified, “I

didn’t know what he had in his hands. With his movements I was unable to see and I

didn’t know if it was a weapon or what it was.” Based on the totality of the

circumstances, Officer Tidgwell had a reasonable, articulable suspicion that appellant

was armed and dangerous.

Appellant argues that even if there was a reasonable, articulable suspicion that a

weapon was in the vehicle, once appellant was removed from the vehicle and placed in

the squad car, any fear would have “dissipated by the time the search was conducted.”

We are not persuaded. In Michigan v. Long, the Supreme Court rejected a similar

argument, explaining that officer safety is still at issue even “if the suspect is not placed

under arrest, [because] he will be permitted to reenter his automobile, and he will then

have access to any weapon inside.” 463 U.S. 1032, 1052, 103 S. Ct. 3469, 3482 (1983).

9
 Minnesota courts have followed the reasoning in Long to permit the search of a

vehicle for weapons even after a suspect has been removed from the vehicle and briefly

detained. See State v. Waddell, 655 N.W.2d 803, 810 (Minn. 2003) (“A protective search

of the passenger compartment of the vehicle . . . is permissible if the officer possesses a

reasonable belief, based on specific and articulable facts, that the suspect is dangerous

and may gain immediate control of the a weapon.”); see also Gilchrist, 299 N.W.2d at

916 (determining that “[t]he police officer may have reasonably been concerned that,

when defendant was allowed to reenter his car after the search, he would be able to reach

under the seat, pull out a gun, and start shooting”). Thus, appellant’s argument lacks

merit.

Because the search of T.T.’s vehicle for a weapon was supported by a reasonable,

articulable suspicion, the district court did not err in denying appellant’s motion to

suppress the evidence discovered during the search. See Waddell, 655 N.W.2d at 810

(“If, while conducting a legitimate protective search of the interior of the vehicle the

officer discovers other evidence of a crime, the Fourth Amendment does not require its

suppression.”).

II. The district court did not commit error that is plain and which affected
appellant’s substantial rights by admitting evidence of the methamphetamine.

Appellant next asserts that the district court plainly erred when it admitted

evidence of the methamphetamine without properly establishing its chain of custody.

Specifically, appellant argues that the complete chain of custody should have been

10
established because of the discrepancy in the weight of the methamphetamine after it was

sent to the BCA.

This challenge is an objection to foundation that should have been raised at the

time the evidence was introduced at trial. See State v. Eli, 402 N.W.2d 627, 630 (Minn.

App. 1987) (explaining that defendant’s challenge to the identity of the donor of a blood

sample was a foundational objection that should have been raised at the time the test

results were introduced). Because appellant made no objections at trial, we review for

plain error. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under the plain-

error test, appellant must show (1) error, (2) that was plain, and (3) that affected the

appellant’s “substantial rights.” State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012). If

all three prongs are satisfied, then a reviewing court must decide whether to address the

error to ensure the “fairness and the integrity of the judicial proceedings.” Griller, 583

N.W.2d at 740. “[I]f we find that any one of the requirements is not satisfied, we need

not address any of the others.” Montanaro v. State, 802 N.W.2d 726, 732 (Minn. 2011).

An error is prejudicial where there is a reasonable likelihood that the error had a

significant effect on the verdict. Griller, 583 N.W.2d at 741. “The defendant bears the

heavy burden of proving that the error was prejudicial.” Milton, 821 N.W.2d at 809

(quotation omitted). We conclude that any purported error by the district court when it

admitted evidence of the methamphetamine without establishing the complete chain of

custody did not affect appellant’s substantial rights.

First, although the BCA test results revealed a weight of 13.2 grams of

methamphetamine rather than the 20.5 grams determined during the field test, the

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amounts still met the threshold amounts required to be convicted of first-degree sale of a

controlled substance and second-degree possession of a controlled substance. See Minn.

Stat. § 152.021, subd. 1(1) (requiring a person to possess a total weight of ten grams or

more to be guilty of the offense); Minn. Stat. § 152.022, subd. 2(a)(1) (requiring a person

to possess a total weight of six grams or more to be guilty of the offense).

Second, a field test was conducted on all three samples at the time they were

discovered and they all tested positive for methamphetamine. Our courts have allowed

non-scientific evidence relating to identity and weight of an alleged contraband to be

sufficient to support a conviction. See State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn.

2004) (“[C]ircumstantial evidence and officer testimony may be presented to the jury to

attempt to prove the identity of [a] substance.”). Here, Officer Pucely testified that, based

on his experience and training, the contraband recovered looked like methamphetamine.

He had experience conducting field tests on contraband and testified that the substances

field-tested positive for methamphetamine. Additionally, there is sufficient

circumstantial evidence for a reasonable person to conclude that appellant possessed

methamphetamine at the time of incident. Officers observed appellant carrying a small

bag in his hand before he got into T.T.’s vehicle. T.T. testified that she picked up

appellant that evening to purchase methamphetamine. The small bag that contained the

methamphetamine was discovered underneath the passenger seat where appellant was

seated. Because appellant has not established that the admissibility of the

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methamphetamine affected his substantial rights, he is not entitled to relief on this

ground.1

III. The evidence is sufficient to support appellant’s conviction of first-degree sale
of methamphetamine.

Appellant next contends that the evidence was insufficient to convict him of first-

degree sale of ten grams or more of methamphetamine because the uncontroverted

testimony established that T.T. only intended to buy a half gram of methamphetamine

from appellant that evening and T.T. testified that she never possessed more than one

gram at a time. We disagree.

In assessing the sufficiency of the evidence, we review the
evidence to determine whether the facts in the record and the
legitimate inferences drawn from them would permit the jury
to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.

State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted). “The jury’s

verdict will be upheld if, giving due regard to the presumption of innocence and to the

state’s burden of proof beyond a reasonable doubt, the jury could reasonably have found

the defendant guilty.” Id. (quotation omitted). “[R]eview [of] criminal bench trials [is]

the same as jury trials when determining whether the evidence is sufficient to sustain

convictions.” State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998).

Appellant was convicted of sale of a controlled substance crime in the first degree

which provides that “[a] person is guilty of controlled substance in the first degree if:

1
Because we determine that any purported error did not affect appellant’s substantial
rights, we need not reach the issue of whether the error was plain. See Montanaro, 802
N.W.2d at 732.

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(1) on one or more occasions within a 90-day period the person unlawfully sells one or

more mixtures of a total weight of ten grams or more containing . . . methamphetamine.”

Minn. Stat. § 152.021, subd. 1(1). The definition of “sale” includes possession with the

intent to sell. Minn. Stat. § 152.01, subd. 15a(3) (2010).

The state offered both direct evidence and circumstantial evidence to prove that

appellant possessed more than ten grams of methamphetamine with the intent to sell.

T.T.’s testimony provided direct evidence of appellant’s intent to sell methamphetamine

that evening.

“A conviction based on circumstantial evidence warrants stricter scrutiny.”2 State

v. Smith, 619 N.W.2d 766, 769 (Minn. App. 2000), review denied (Minn. Jan. 16, 2001).

“While the law does not prefer direct evidence to circumstantial evidence, a conviction

based on circumstantial evidence requires that the circumstances proved be consistent

with an appellant’s guilt and inconsistent with any other rational or reasonable

hypothesis.” State v. Sam, 859 N.W.2d 825, 833 (Minn. App. 2015) (citations omitted).

When reviewing the sufficiency of circumstantial evidence, we apply a two-step

process. Silvernail, 831 N.W.2d at 598. Our first task is to identify the circumstances

2
It is unclear which standard of review we should apply when we are reviewing the
sufficiency of the evidence that includes both direct and circumstantial evidence. In State
v. Silvernail, our supreme court acknowledged as much, explaining that it presents a
“broader question of the applicable standard for reviewing the sufficiency of the evidence
when the [s]tate presents both direct and circumstantial evidence to obtain a conviction.”
831 N.W.2d 594, 598 (Minn. 2013). However, it declined to resolve the dispute and
applied the circumstantial-evidence standard, stating that “even under the more favorable
[circumstantial-evidence] standard proposed by [defendant], the record contains
sufficient evidence to support the jury’s verdict.” Id. Therefore, we also apply the
circumstantial-evidence standard in this review.

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proved, giving deference to the fact-finder and construing the evidence in the light most

favorable to the verdict. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010). Under

this step, we assume that the fact-finder rejected the defendant’s version of events. See

Al-Naseer, 788 N.W.2d at 473.

Taken in the light most favorable to the verdict, the evidence established the

following circumstances: (1) T.T. stated that appellant sold methamphetamine to her on

prior occasions; (2) a bag found underneath the passenger seat of the vehicle where

appellant was sitting contained three separate packages of methamphetamine and a digital

scale; (3) Officer Bartholomew positively identified the bag containing the contraband as

the one he saw appellant holding in the alley; (4) Officer Pucely testified that the amount

of methamphetamine discovered was consistent with an amount for distribution and that

digital scales are typically used to weigh the contraband prior to a sale.

The second step requires this court “to determine whether the circumstances

proved are consistent with guilt and inconsistent with any rational hypothesis except that

of guilt.” Silvernail, 831 N.W.2d at 599 (quotation omitted). We determine that the

circumstances proved are consistent with guilt. One can reasonably infer that appellant

possessed the methamphetamine with the intent to sell some of it to T.T. that evening

when he got into her car holding a bag that contained an amount of methamphetamine

consistent with distribution and a digital scale. The circumstances proved are

inconsistent with any rational hypotheses except that of guilt. Accordingly, the evidence

is sufficient to support appellant’s conviction of first-degree sale of a controlled

substance.

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IV. The district court did not abuse its discretion in sentencing appellant to 189
months, the top of the presumptive sentencing range.

Lastly, appellant argues that the district court abused its discretion when it

sentenced appellant to the top of the presumptive range on the guidelines rather than the

158-month sentence recommended in the presentence investigation report. This court

reviews sentences imposed by the district court for an abuse of discretion. State v. Delk,

781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).

A district court must impose the presumptive guidelines sentence absent

“identifiable, substantial, and compelling circumstances to support a sentence outside the

range on the grids.” Minn. Sent. Guidelines 2.D (2012). Sentence ranges in the

sentencing guidelines are presumed to be appropriate for the crimes to which they apply.

Id. “All three numbers in any given cell [on the sentencing guidelines grid] constitute an

acceptable sentence.” State v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008); see also

Delk, 781 N.W.2d at 428 (“[A]ny sentence within the presumptive range for the

convicted offense constitutes a presumptive sentence.”). A district court does not have to

explain its reasons for imposing a presumptive sentence, and we will not interfere with

the district court’s exercise of discretion when “the record shows the [district] court

carefully evaluated all the testimony and information presented before making a

determination.” State v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. 1985). “[I]t would be

a rare case which would warrant reversal of the refusal to depart.” State v. Kindem, 313

N.W.2d 6, 7 (Minn. 1981).

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 With appellant’s seven criminal-history points and conviction of a severity level

nine offense, the presumptive sentencing range under the Minnesota Sentencing

Guidelines was between 135 and 189 months in prison. The district court sentenced

appellant to 189 months in prison, the top of the range, but still a presumptive sentence.

The district court indicated that it reviewed the presentence investigation and written

submissions by appellant. We conclude that the district court did not abuse its discretion

in sentencing appellant to the top of the presumptive range of 189 months.

Affirmed.

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