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This opinion will be unpublished and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
A16-0990

State of Minnesota,
Respondent,

vs.

Jovon Nathan Freshwater,
Appellant.

Filed April 3, 2017
Affirmed
Kalitowski, Judge

Hennepin County District Court
File No. 27-CR-15-22422

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middle brook, Chief Appellate Public Defender, St. Paul, Minnesota; Kate M.
Baxter-Kauf, Special Assistant Public Defender, Lockridge Grindal Nauen P.L.L.P.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Kalitowski,
Judge.

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

2
U N P U B L I S H E D O P I N I O N
KALITOWSKI, Judge
Appellant Jovon Freshwater challenges his convictions of two counts of second -
degree controlled-substance crimes. Following proceedings under Minn. R. Crim. P. 26.01,
subd. 4, Freshwater argues that the district court erred in denying his motion to suppress
evidence because (1) police lacked reasonable suspicion to stop his vehicle, (2) reasonable
suspicion that he was armed and dangerous did not support the pat-search, (3) police lacked
probable cause to arrest him, and (4) the district court erred in crediting the officers’
testimony. We affirm.
D E C I S I O N
Appellate review following a stipulated -facts proceeding is limited to whether the
district court’s ruling on a specific pretrial issue was proper. Minn. R. Crim. P. 26.01, subd.
4(f). When the pretrial order is a motion to suppress evidence, this court reviews the district
court’s factual findings for clear error and its legal determinations de novo.” State v. Diede,
795 N.W.2d 836, 849 (Minn. 2011).
I. The Stop
Freshwater argues that police lacked reasonable suspicion to stop his vehicle. Under
the Fourth Amendment, “a police officer may not stop a vehicle without a reasonable basis
for doing so.” In re Welfare of G.M. , 560 N.W .2d 68 7, 691 (Minn. 1997) (quotation
omitted). A stop is lawful when police can “articulate[] a particularized and objective basis
for suspecting the particular persons stopped of criminal activity.” Id. (quotation omitted).
Whether such a basis exists is based on the totality of the circumstances , and police are

3
allowed to “draw[] inferences and make[] deductions that might well elude an untrained
person.” Id. (quotation omitted). “[T]he reasonable suspicion standard is not high” and “is
met when an officer observes unusual conduct that leads the officer to reasonably conclude
in light of his or her experience that criminal activity may be afoot.” State v. Timberlake,
744 N.W.2d 390, 393 (Minn. 2008) (quotations omitted).
The district court concluded that the officer had probable cause to arrest Freshwater
at the time of the stop. The district court cited several pieces of evidence to support its
conclusion, including that an experienced police officer personally observed two known
narcotics users for approximatel y 10 to 15 minutes as they appeared to be waiting for
someone. During this time, Freshwater drove up to the curb, the female narcotics user went
to the rear of the vehicle and appeared to be acting as a lookout, and the male narcotics
user went to the front passenger door where the officer observed a hand-to-hand exchange
between the male narcotics user and Freshwater. The interaction happened quickly, lasting
approximately 30 seconds. The district court also noted the officer has observed “hundreds
of drug transactions” during his career, and “these facts gave the officer not just reasonable,
articulable suspicion, but, in fact, probable cause that a narcotics transaction had taken
place.”
We need not determine whether the officer had probable cause to arrest Freshwater
after observing the interaction between the male narcotics user and Freshwater, because
the district court also concluded that the facts gave the officer reasonable suspicion to stop
Freshwater. The totality of the circumstances, including th e time that the officer spent
observing the parties, the parties’ behaviors, and the hand-to-hand exchange is conduct that

4
allowed the officer, making inferences based on his training and experience, to reasonably
conclude that Freshwater was involved in c riminal activity. See State v. Hunter , 857
N.W.2d 537, 544 (Minn. App. 2014) (finding reasonable suspicion to stop and investigate
where officers conducting surveillance in an area known for drug activity observed
appellant park his SUV in a remote area of a parking lot, a sedan entered and parked next
to the SUV a few minutes later, and the individuals in the sedan left the car running and
entered the SUV). Thus, the district court properly concluded that the officer had
reasonable suspicion to stop Freshwater.
II. The Terry Search
Freshwater argues that evidence found during the pat -search should not be
considered in the probable -cause determination . He contends that he was arrested
immediately upon being stopped and, because police lacked probable cause, the pat-search
was an illegal search incident to arrest. Alternatively, Freshwater argues that if the pat -
search was not conducted as incident to an arrest, the Terry standard was not satisfied.
“Warrantless searches are ‘per se unreasonable’” subject to limited exceptions. State
v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (quoting Katz v. United States, 389 U.S.
347, 357, 88 S. Ct. 507, 514 (1967)). One exception exists when police “have a reasonable,
articulable suspicion that a suspect might be engag ed in criminal activity” and police
“reasonably believe[] the suspect might be armed and dangerous.” State v. Flowers , 734
N.W.2d 239, 250 (Minn. 2007) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884
(1968)). Absolute certainty that an individual is armed and dangerous is not required; “the
issue is whether a reasonably prudent man in the circumstances would be warranted in the

5
belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S. Ct. at
1883. Because “a substanti al nexus exists between drug dealing and violence,” it is
reasonable for police “to believe a person may be armed and dangerous when the person is
suspected of being involved in a drug transaction.” United States v. Bustos -Torres, 396
F.3d 935, 943 ( 8th Cir. 2005); State v. Lemert, 843 N.W.2d 227, 232 (Minn. 2014). Any
evidence obtained during a lawful pat -search may be confiscated. Welfare of G.M. , 560
N.W.2d at 693.
We first address when Freshwater was arrested. The test for whether a person is
arrested is “whether a reasonable person would have concluded, under the circumstances,
that he was under arrest and not free to go.” State v. Beckman, 354 N.W.2d 432, 436 (Minn.
1984) (emphasis added). Conversely, a person is seized when an officer “by physical force
or show of authority, has in some way restrained the liberty of a citizen.” State v. Harris,
590 N.W.2d 90, 98 (Minn. 1999) (quotation omitted). Whether someone is under arrest is
determined by an objective standard. Beckman, 354 N.W.2d at 436. It is not determinative
that a reasonable person may believe they are not free to go. Id. The “not free to leave
language” is not dispositive , because someone being detained temporarily “is not free to
leave” but “that does not convert the detention into an arrest.” State v. Moffatt, 450 N.W.2d
116, 120 (Minn. 1990).
In State v. Moffatt, the supreme court held that persons detained in a squad car for
more than an hour while police conducted an investigation were not under arrest. Id. at
119–20. The supreme court reasoned that the men, who were being investigated for
burglary, were told they were being detained and that they were not under arrest , and not

6
putting them in a squad car may have been foolish because they may have had access to
weapons in the car they were driving. Id. at 120. The court also reasoned it would have
been foolish to allow the men to “stand around outside.” Id. Thus, the supreme court
concluded that the most reasonable and prudent decision was to place the men in different
squad cars while the officers conducted their investigation. Id.
Here, Freshwater was being investigated for a narcotics crime, which often involves
weapons. As in Moffatt, the officer reasonably did not leave him in his car where he may
have access to weapons. Additionally, the officer did not tell Freshwater that he was under
arrest, but that he was being detained because a narcotics investigator was on the way.
Freshwater was handcuffed and pat-searched pending arrival of the investigator, which
happened only minut es after he was detained. Under the circumstances, a reasonable
person would likely conclude they were being detained for further investigation, but not
arrested. See Moffatt, 450 N.W.2d at 120. Thus, Freshwater was not arrested immediately
after he was stopped.
Freshwater challenges the district court’s basis for the pat-search and its conclusion
that the officer had reason to believe Freshwater was armed and dangerous. The totality of
the circumstances supports the district court’s conclusion. First, the officer was instructed
to stop Freshwater due to his suspected involvement in a narcotics transaction. Upon being
stopped, Freshwater was nervous and visibly shaking, which the officer testified made him
suspicious that Freshwater wa s in possession of contraband. Taking into account the
officer’s seven years of experience, Freshwater’s demeanor, the recognition that narcotics
and weapons are often discovered together, as well as the officer’s personal experience of

7
discovering narcotics and weapons together in prior investigations, the officer conducted a
lawful pat-search of Freshwater.
During the search, the officer felt a hard object tucked behind Freshwater’s genitals.
The officer did not believe this object to be a weapon, so he left it in place. When the officer
patted down Freshwater’s front pockets, he felt several hard objects that he testified could
have been weapons. He removed these objects and discovered a digital scale of the type
commonly used to weigh and measure narcotics and over $1,000 in currency. Because the
officer had a reasonable, articulable suspicion that Freshwater was involved in criminal
activity, and that he was armed, and dangerous, the pat-search was lawful. Thus, the district
court did not err in denying Freshwater’s motion to suppress.
III. The Arrest
Freshwater argues that police lacked probable cause to arrest him. Freshwater relies
on two unpublished cases of this court to make this argument. But an unpublished decision
of this court is not precedent. Minn . Stat. § 480A.08, subd. 3 (2016); see also Freeman v.
State, 804 N.W.2d 144, 147 (Minn. App. 2011) (stating that unpublished decisions are not
binding authority), review denied (Minn. Dec. 13, 2011).
Both the federal and state constitutions prohibit unre asonable seizures. U.S. Const.
amend. IV; Minn. Const. art. I, § 10. Although an arrest without a warrant is presumed
unreasonable, “[a] warrantless arrest is reasonable if supported by probable cause.” State
v. Williams, 794 N.W.2d 867, 871 (Minn. 2011). Probable cause to arrest is established
when “the objective facts are such that under the circumstances, a person of ordinary care
and prudence would entertain an honest and strong suspicion that a crime has been

8
committed.” Welfare of G.M., 560 N.W.2d at 695. In determining whether probable cause
exists, this court “takes into account the totality of the circumstances, including the
expertise and experience of the arresting police officers.” State v. Hawkins , 622 N.W.2d
576, 580 (Minn. App. 2001).
Here, law enforcement observed two known narcotics users for a period of 10 to 15
minutes who appeared to be waiting for someone. During this time, Freshwater was the
only person who pulled up to the curb and interacted with the individuals. One of the
persons then acted as a lookout while a hand -to-hand transaction occurred between the
other person and Freshwater. All of this occurred in an area known for drug activity. After
the transaction, the narcotics users began to leave the area, which suggests that they were
there to meet Freshwater. When officers responded to the scene, Freshwater drove away.
Following a stop, a lawful Terry search was conducted in which officers found a digital
scale consistent to what is usually used to weigh and measure narcotics and a large sum of
money. The scale and the money, together with the circumstances occurring b efore the
stop, provided probable cause to arrest Freshwater.
Because officers had probable cause to arrest Freshwater, the heroin discovered at
the police station was found as a lawful search incident to arrest. Thus, the district court
did not err in admitting the heroin into evidence.
IV. Officer Testimony
Finally, Freshwater argues that the district court erred in crediting the officers’
testimony. “The assessment of a witness’s credibility is exclusively the province of the
[factfinder].” State v. McCray , 753 N.W.2d 746, 754 (Minn. 2008) (quotation omitted).

9
This court assumes that the factfinder “credited the state’s witnesses and rejected any
contrary evidence.” State v. Pendleton, 759 N.W.2d 900, 909 (Minn. 2009). Where there
is conflicting evidence, this court “defer[s] to the district court’s credibility determination.”
State v. Kramer , 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn. Nov. 18,
2003). We therefore reject Freshwater’s argument.
Affirmed.