State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0566

State of Minnesota,
Respondent,

vs.

Michael Alan Kalberg,
Appellant.

Filed April 3, 2017
Affirmed
Klaphake, Judge*

Meeker County District Court
File No. 47-CR-15-525

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Steven P. Aggergaard,
Special Assistant Public Defender, Bassford Remele, P.A., Minneapolis, Minnesota (for
appellant)

Considered and decided by Johnson, Presiding Judge; Peterson, Judge; and
Klaphake, Judge.

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

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Appellant Michael Alan Kalberg challenges his convictions of possession of a
firearm by an ineligible person, possession of a small amount of marijuana, and possession
of drug paraphernalia, arguing the police officer did not have reasonable, articulable
suspicion to expand the scope of the traffic stop and did not have probable cause to search
his vehicle. He also argues he is entitled to a new trial. Because the police had reasonable
suspicion to justify the expansion of the stop and probable cause to search the vehicle, and
the district court did not abuse its discretion in denying the motion for a mistrial, we affirm.
D E C I S I O N
I. Motion to Suppress
Kalberg argues that the police did not have reasonable suspicion to expand the scope
of the traffic stop after he was pulled over for speeding. When reviewing a district court’s
pretrial order on a motion to suppress evidence, we review the district court’s factual
findings for clear error and its legal determinations de novo. State v. Gauster, 752 N.W.2d
496, 502 (Minn. 2008). Deference must be given to the district court’s credibility
determinations. State v. Miller, 659 N.W.2d 275, 279 (Minn. App. 2003), review denied
(Minn. July 15, 2003).
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. The scope
of a traffic stop “must be strictly tied to and justified by the circumstances that rendered
the initiation of the investigation permissible.” State v. Wiegand, 645 N.W.2d 125, 135
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(Minn. 2002). We review questions of reasonable suspicion de novo, considering the
totality of the circumstances in determining whether a stop is justified. State v. Britton,
604 N.W.2d 84, 87 (Minn. 2000). An of ficer’s suspicion cannot be based on a hunch; it
must be objectively reasonable under the totality of the circumstances. State v. Smith, 814
N.W.2d 346, 351 (Minn. 2012). Evidence discovered during an invalid search must be
suppressed. State v. Askerooth, 681 N.W.2d 353, 370 (Minn. 2004).
Kalberg does not contest the validity of the initial traffic stop for speeding. But he
argues the district court erred in finding the expansion of the traffic stop and subsequent
search of his vehicle were justified. Expansion of a traffic stop beyond its original purpose
is permissible if an officer has reasonable, articulable suspicion of other criminal activity.
Wiegand, 645 N.W.2d at 135. While speaking with Kalberg, Deputy Sebring detected a
strong odor of marijuana emanating from the vehicle. We have long observed that the odor
of marijuana provides an officer with probable cause to search a vehicle. See State v.
Schultz, 271 N.W.2d 836, 837 (Minn. 1978) (stating that if an officer smelled marijuana
before searching a vehicle then the search was justified under the automobile exception);
see also State v. Wicklund, 295 Minn. 403, 405, 205 N.W.2d 509, 511 (1973) (observing a
search was justified after two officers detected the odor of marijuana); State v. Ortega, 749
N.W.2d 851, 854 (Minn. App. 2008) (stating that the odor of marijuana has historically
provided an officer with probable cause to search), aff’d, 770 N.W.2d 145 (Minn. 2009);
State v. Pierce, 347 N.W.2d 829, 833 (Minn. App. 1984) (“It ha s long been held that the
detection of odors alone, which trained police officers can identify as being illicit,
constitutes probable cause to search automobiles for further evidence of crime.”).
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On this record, the expansion of the initial traffic stop was justified by reasonable
suspicion. The odor of marijuana emanating from the vehicle provided Deputy Sebring
not only with reasonable suspicion to expand the scope of the traffic stop, but also probable
cause to search the vehicle. The district court therefore did not err in denying Kalberg’s
motion to suppress the evidence of the firearm, marijuana, and drug paraphernalia
discovered during the search of his vehicle.1
II. Motion for Mistrial
Kalberg argues he is entitled to a new trial because the district court erred in denying
his request for a mistrial. We review a district court’s denial of a motion for a mistrial for
an abuse of discretion. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). A mistrial
should not be granted unless there is a reasonable probability that if the event prompting
the mistrial motion had not occurred then the outcome would have been different. State v.
Manthey, 711 N.W.2d 498, 506 (Minn. 2006). The state concedes that the district court
erred in its initial instructions to the jury because it informed the jury that Kalberg had been
convicted of a crime of violence despite the fact that Kalberg stipulated that he had been
convicted of a crime of violence to keep the jury from hearing that information. But the
state argues that the error was not so prejudicial as to require a new trial.
We conclude that the district court’s error in referencing Kalberg’s prior conviction
for a crime of violence was harmless beyond a reasonable doubt. There is no reasonable

1 Kalberg also challenges the district court’s determinations that the search was justified
because Kalberg consented to it, as a protective search for weapons, and under the
inevitable-discovery doctrine. Because we conclude the search was supported by probable
cause we need not address these claims.
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probability that the outcome would have been different but-for the district court’s error.
The evidence against Kalberg is simply too strong. The firearm was discovered in
Kalberg’s vehicle and there was no one else in the vehicle at the time. In his statement to
the police following his arrest, Kalberg stated that he had purchased the firearm off the
streets approximately seven months ago, admitted it was not properly registered, and then
acknowledged he was “probably not supposed to have it.” When asked, “And you admit
that that [firearm] was yours and you’ve had it for seven months or so now?” he responded,
“Um, correct.” The statement was played for the jury, who were also provided with
transcripts, and admitted into evidence. Deputy Sebring similarly testified that Kalberg
admitted to possessing the firearm and marijuana that were discovered in his vehicle.
Because there is no reasonable probability that the outcome would have been different but-
for the district court’s reference to Kalberg’s prior conviction for a crime of violence, the
district court did not abuse its discretion in denying the motion for a mistrial. Kalberg is
not entitled to a new trial.
Affirmed.