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This opinion will be unpublished and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
A16-1456

State of Minnesota,
Respondent,

vs.

Jonathan Eugene Jackson,
Appellant.

Filed July 31, 2017
Affirmed
Reilly, Judge

Hennepin County District Court
File No. 27-CR-15-946

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

Michael O. Freeman, Kelly O’Neill Moller, Assistant County At torney, Minneapolis,
Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, J odi Lynn Proulx, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Pres iding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
On appeal from his conviction of unlawfu lly possessing a firearm in violation of
Minn. Stat. § 624.713, subd. 1(2) (2014), appellant Jonathan Eugene Jackson argues that

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the district court (1) erred when it failed to suppress evidence discovered during an
unlawful stop and search of a motor vehicle, and (2) committed plain error that affected his
substantial rights when it failed to instruct the jury on the defi nition of constructive
possession. We affirm.
FACTS
On January 10, 2015, at approximately 6:30 p.m., Minneapolis Police Officers
Ringgenberg and Bloss were on patrol in a marked squad car; there was snow on the ground
and the roads were slippery. As the officers drove westbound on 30th Avenue North, they
saw a sedan traveling northbound on Dupont Avenue toward the four-way stop at the
intersection of 30th Avenue North and Dupont Avenue. The officers saw the sedan fail to
stop at the stop sign and drive into the intersec tion, and then briefly stop in the middle of
the intersection. The officers turned right onto Dupont Avenue and followed the sedan for
a short distance before activating the emergency lights to stop the sedan.
As Officer Ringgenberg approached the driv er’s side of the sedan, he detected an
odor of unburnt marijuana emanating from the vehicle; Officer Ringgenberg also noticed
that Jackson was sweating, which he considered “odd” in light of the freezing temperature.
In response to Officer Ringgenberg’s request for identification, the driver produced a card
that identified him as Jonathan Eugene Jackson. A routine record check revealed that the
sedan was not registered to Jackson and that Jackson’s driving privileges had been revoked.
After performing the record ch eck, Officer Ringgenberg asked Jackson to step out of the
vehicle, performed a protective pat-search, and placed Jackson under arrest.

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While Officer Bloss attended to Jackson, Officer Ringgenberg returned to the sedan
and searched the inside of the vehicle for ma rijuana. As part of this search, Officer
Ringgenberg peered inside an unzipped, black b ackpack on the floor of the front
passenger’s side of the vehicle. Inside of the backpack, Officer Ringgenberg found a black,
partially loaded, semiautomatic handgun. A subsequent inventory search revealed that the
backpack also contained a letter addressed to Jackson from the United States Department
of Education and a credit card in Jackson’s na me. Marijuana was not found inside of the
backpack or anywhere else in the sedan. Following the stop and search of the sedan,
Jackson was charged with one count of unlawful possession of a firearm.
At the evidentiary hearing, the dist rict court heard testimony from Officer
Ringgenberg, whom the district court found to be credible. Officer Ringgenberg testified
that he stopped the sedan after witnessing the driver fail to properly stop at the intersection,
a violation of Minn. Stat. § 169.06, subd. 4( a) (2014). The squad camera did not record
this traffic violation.1 Officer Ringgenberg also testified that he smelled an odor of unburnt
marijuana coming from the sedan and that, in his experience , it is not uncommon for the
odor of marijuana to linger even after the substance is removed because the substance often
has a potent and lasting odor. At the conclusion of the evid entiary hearing, the district
court noted that the sedan is onl y visible after “it is in the intersection, . . . due to the
relatively narrow angle of the camera.” The district court also found Officer Ringgenberg’s

1 The squad car was equipped with a camera that activated when th e squad lights turned
on. The camera recorded 30 s econds prior to its activation. The officer testified that
appellant drove several blocks before the officer activated his overhead emergency lights.

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testimony—that he detected an odor of un burnt marijuana coming from inside of the
sedan—to be credible, even th ough marijuana was not found in the vehicle. The district
court explained that Officer Ringgenberg “has been trained in identifying marijuana, sees
marijuana nearly every week through the course of his work, and through that experience
became able to identify marijuana odors,” noting that it “was not surprising” that marijuana
was not found “because marijuana’s strong and distinctive odor can linger for some time
after the substance is removed.” For these r easons, the district court concluded that the
stop and search of the vehicle was lawful u nder the automobile exception, and denied
Jackson’s suppression motion.
At trial, the state introduced expert tes timony that Jackson could not be excluded as
a contributor to the DNA mixture found on the firearm. Jackson’s defense at trial was that
he did not know that there wa s a firearm in the backpack, did not own the backpack, and
did not know how his personal be longings ended up in the back pack. At the close of the
trial, the district court provide d copies of the proposed jury instructions to counsel and
suggested the parties amend the definition of possession to omit reference to shipping or
receiving the firearm; and counsel agreed. The instructions provided to the jury stated:
[U]nder Minnesota law a person who is prohibited from
possessing a firearm but nonethel ess transports or possess[es]
a firearm is guilty of a crime. . . . The first element is that the
defendant knowingly transported or possessed a firearm. The
second element is that . . . th e defendant is prohibited from
possessing a firearm. And the thir d element is that his actions
took place on January 10, 2015 in Hennepin County.

Shortly thereafter, the jury found Jackson guilty of unlawfully possessing a firearm.
This appeal follows.

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D E C I S I O N
I. The district court did not err by denying Jackson’s suppression motion.
Jackson argues that the district court erred by not suppressing the evidence obtained
during the search of a vehicle he was driving because (1) the police lacked a particularized
and objective basis for suspecting that he engaged in criminal activity, and (2) the smell of
unburnt marijuana did not justify a warrantless search of the vehicle. “When reviewing a
district court’s pretrial order on a motion to suppress evidence, the district court’s factual
findings are reviewed under a clearly erroneous standard.” State v. McCabe, 890 N.W.2d
173, 175 (Minn. App. 2017) (quotation omitted). But legal determinations, such as whether
a search was reasonable, are reviewed de novo. Id.
A. The observation of Jackson’s mino r traffic violation provided the
reasonable suspicion that is necessary to justify a limited investigatory
stop.

The United States and Minnesota Constitutions guarantee “[t]he right of the people
to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures.” U.S. Const. amend. IV; Minn. Const. art. 1, § 10. A search or seizure that is
conducted without a wa rrant is presumptively unreasonable. State v. Lugo, 887 N.W.2d
476, 486 (Minn. 2016). One exception to th e warrant requirement that permits police to
“conduct a brief, investigatory stop” occurs when police have “a reasonable, articulable
suspicion that criminal activity is afoot.” Id. (quoting State v. Timberlake , 744 N.W.2d
390, 393 (Minn. 2008)). When reviewing the district court’s determinations of the legality
of a limited investigatory stop, we assess the question of reasonable suspicion based on the

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“totality of the circumstances.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct.
690, 695 (1981).
Reasonable suspicion is defined as “a particularized and objective basis for
suspecting the particular person st opped of criminal activity.” Id. (quotations omitted).
The reasonable-suspicion standard is not high; a law enforcement officer’s articulation of
facts which, if viewed together with rationa l inferences from those facts, may objectively
support an officer’s suspic ion of criminal activity. Id.; State v. Davis, 732 N.W.2d 173,
182 (Minn. 2007) (“[R]easonable suspicion requires something more than an unarticulated
hunch[; an] officer must be able to point to something that obj ectively supports the
suspicion at issue.” (quotatio n omitted)). A trained police officer is entitled to draw
inferences and make deductions that may well elude a person who is not similarly trained.
Cortez, 449 U.S. at 418, 101 S. Ct. at 695.
In this case, the district court found th at Jackson failed to obey a traffic sign, a
violation of Minn. Stat. § 169.06, subd. 4(a). Even an insignificant violation of a traffic
law may provide a sufficient basis for a valid investigatory stop. State v. George , 557
N.W.2d 575, 578 (Minn. 1997). But Jackson ar gues that “under the specific facts of this
case[, his] actions . . . failed to amount to an objective and reasonable basis to suspect [him]
of criminal activity” because “s liding through an intersection on a road that is slick and
snow-packed does not establish a ‘prima facie’ showing of reasonable articulable suspicion
of criminal conduct justifying the stop of [his] vehicle.”
Failure to obey a stop sign is a violation of Minn. Stat. § 169. 06, subd. 4(a), and
under Minnesota law all drivers are required to “drive at an appropriate reduced speed . . .

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when special hazards exist . . . by reason of weather or hi ghway conditions,” Minn. Stat.
§ 169.14, subd. 3(a) (2014); see also George, 557 N.W.2d at 578 (“[I]f an officer observes
a violation of a traffic law, however insignificant, the offi cer has an objective basis for
stopping the vehicle.”). The evidence is sufficient to suppor t the district court’s finding
that Jackson violated a traffic law by failing to stop at a stop sign. On these facts, it is clear
that the officer had an objective basis for stopping Jackson.
B. The smell of unburnt marijuana provi des probable cause to search a
vehicle under the automobile exception.

Jackson argues that the district court improperly denied his suppression motion
because the smell of unburnt marijuana did not give the officers probable cause to search
the vehicle. We review de novo a district court’s probable cause determination as it relates
to a warrantless search. State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016).
The Fourth Amendment to the United Stat es Constitution and article 1, section 10
of the Minnesota Constitution protect agai nst unreasonable search es and seizures.
“Warrantless searches are generally unreasona ble unless they fall w ithin a recognized
warrant exception.” State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009). If a warrantless
search does not fall within a recognized exception, any evid ence collected from a
warrantless search must be suppressed. State v. Flowers , 734 N.W.2d 239, 248 (Minn.
2007). The state bears the burden of establishing that at least one exception to the warrant
requirement applies. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).
Under the automobile exceptio n, police may search a vehicle without a warrant if
police have “probable cause to believe the se arch will produce evidence of a crime.”

8
Maryland v. Dyson, 527 U.S. 465, 467, 11 9 S. Ct. 2013, 2014 (199 9). Probable cause to
search a vehicle exists when “t here is a fair probability that contraband or evidence of a
crime will be found in a particular place.” State v. Wiley , 366 N.W.2d 265, 268 (Minn.
1985). Probable cause is an objective inquiry that is dependent upon the totality of the
circumstances. Lester, 874 N.W.2d at 771. “It is a co mmon-sense, nontechnical concept
that involves the factual and practical considerations of everyday life on which reasonable
and prudent people . . . act.” Id. (quotations omitted). Poli ce have probabl e cause to
conduct a warrantless search when, in light of the totality of the circumstances, “there are
facts and circumstances sufficient to warrant a reasonable prudent pe rson to believe that
the vehicle contains contraband.” State v. Johnson, 277 N.W.2d 346, 349 (Minn. 1979).
Additionally, the totality of the circumstances includes “reasonable inferences that police
officers draw from facts, based on their traini ng and experience, because police officers
may interpret circumstances differe ntly than untrained persons.” Lester, 874 N.W.2d at
771. For these reasons, appellate courts give due weight to the reasonable inferences drawn
by police and to district court findings that these inferences were reasonable and the officer
was credible. Ornelas v. United States , 517 U.S. 690, 699-700, 116 S. Ct. 1657, 1663
(1996).
“[T]he detection of odors alone, which trained police officers can identify as being
illicit, constitutes probable cause to search automobiles for furthe r evidence of crime.”
State v. Pierce, 347 N.W.2d 829, 833 (Minn. App. 1984). And there is published caselaw
from this court stating that the odor of ma rijuana emanating from a vehicle establishes
probable cause to search the vehicle. State v. Schultz, 271 N.W.2d 836, 837 (Minn. 1978);

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State v. Hodgman, 257 N.W.2d 313, 315 (Minn. 1977). When probable cause exists, the
scope of the warrantless search under the automobile exception extends to closed
containers inside of the vehicle, and is “def ined by the object of the search” and confined
to “the places in which there is probable cau se to believe [the obj ect] may be found.”
United States v. Ross, 456 U.S. 798, 824, 102 S. Ct. 2157, 2172 (1982).
Jackson nevertheless argues that the distri ct court erred by finding that there was
probable cause to search the vehicle based on the odor of unburnt ma rijuana alone. As a
threshold matter, we note the search was not based on the odor alone: the district court also
found that Jackson appeared ne rvous and was sweating at the time of the stop, which the
officer testified was “odd” given that the stop occurred in January. See State v. Smith, 814
N.W.2d 346, 351 (Minn. 2012) (articulating that extreme shaking and evasive responses
may provide the reasonable suspicion necessary to justify the expansion of a traffic stop).
Jackson relies on State v. Ortega, in which the Minnesota Supreme Court noted that
“probable cause to suspect that a person possesses a non-criminal amount of marijuana, in
and of itself, does not trigger the search-i ncident-to-arrest excep tion to the warrant
requirements of the Fourth Amendment.” 770 N.W.2d at 149 n.2. Specifically, Jackson
contends that the odor of marijuana cannot establish probable cause to believe that the
vehicle contained a criminal amount of mariju ana. Under Minn. Stat. § 152.027, subd. 3
(2014), possession of less than 1.4 grams of marijuana in a motor vehicle is a petty
misdemeanor.2 But the Minnesota Supreme Court ha s held that the smell of marijuana—

2 The statute criminalizing marijuana was am ended in 1976 to pr ovide that possessing a
small amount of marijuana is now a petty misdemeanor.

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without distinguishing between the smell of unburnt and burnt marijuana—is sufficient to
justify the warrantless search of a vehicle under the automobile exception, as the human
nose is unable to discern a criminal amount of marijuana. Schultz, 271 N.W.2d at 836. We
therefore conclude that the smell of unbu rnt marijuana, combin ed with Jackson’s
nervousness and sweating, established a fair probability that the vehicle contained
contraband or evidence of a crime.
II. The district court did not err in its instruction to the jury.

Jackson also argues that the district court erred by failing to pr operly instruct the
jury on the expanded definition of “possession” as the term is defined in CRIMJIG 32.42.
Because the firearm was found in a backpack in the front passenger’s seat of the vehicle,
Jackson contends that the state was requi red to prove constructive possession of the
firearm, and, where constructive possession is at issue, the district court must instruct the
jury on the elements of actual and constructive possession. The state, however, argues that
it may obtain a conviction for a violation of Minn. Stat. § 624.713, subd. 1(2), by
establishing actual or constructive possession, and because the state only argued actual
possession at trial, the district court did not err by failing to instruct the jury on the elements
of constructive possession.
Because “district courts are allowed cons iderable latitude in the selection of
language for jury instructions,” State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002), appellate
courts review a district court’s decision to give a jury instruction for an abuse of discretion,
State v. Carridine, 812 N.W.2d 130, 142 (Minn. 2012). Jury instructions must “fairly and
adequately explain the law of the case,” meaning th at the instructions must “define the

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crime charged and the court should explain the elements of the offense rather than simply
read statutes.” Ihle, 640 N.W.2d at 916. “An instruction is in error if it materially misstates
the law,” id., or “confuses” or “misleads” the jury. State v. Larson, 787 N.W.2d 592, 601
(Minn. 2010). “[T]he failure to instruct the jury on an elem ent of the charged offense is
subject to review as a trial error.” State v. Watkins, 840 N.W.2d 21, 27 (Minn. 2013).
Failure to object to a jury instruction before it is given at trial generally constitutes
a forfeiture of the right to appe llate review of that error. State v. Lilienthal, 889 N.W.2d
780, 784 (Minn. 2017). Minnesota Rule of Criminal Procedure 31.02, however, allows
appellate courts to correct forfeited errors that are not timely raised in district court when
there is a “plain error affecting a substantial right.” Id. (quoting State v. Beaulieu , 859
N.W.2d 275, 279 (Minn. 2015)). Under the plain-error doctrine, Jackson must show: (1) an
error, (2) that was plain, and (3) that affected his substantial rights. Id. (citing State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998)). Ev en if Jackson establishes these three
prongs, “we may correct the error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” State v. Washington-Davis , 881 N.W.2d 531, 541
(Minn. 2016).
Jackson’s argument fails under the plain-error analysis. The state charged Jackson
with possession of a firearm by a prohibited pe rson in violation of Minn. Stat. § 624.713,
subd. 1(2). Because Jackson stipulated that he is prohibited from possessing a firearm, the
only remaining issue for the jury was whether Jackson possessed the firearm found during
the traffic stop. At trial, the state only argued that Jackson actually possessed the gun; the

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state did not argue constructive possession, and Jackson did not re quest a constructive
possession instruction.
In State v. Arnold , we clarified that “[t]he purpo se of the constructive-possession
doctrine is to include within the possession statute those cases where the state cannot prove
actual or physical possession.” 794 N.W.2d 397, 400 (Minn. App. 2011) (quotation
omitted). An instruction on co nstructive possession is necessary when a defendant is not
exercising direct physical control over the contraband, and the contraband is instead found
in a place to which other people had access. See State v. Porter , 674 N.W.2d 424, 427
(Minn. App. 2004) (noting that the stat e bears the burden of proving constructive
possession, and an instruction on constructive possession is necessary when a firearm is
found in an apartment defend ant shared with other people ). However, this court has
previously clarified that “[t]he mere fact that an item is not in a defendant’s physical
possession at the time of apprehension does not preclude prosecution for actual
possession.” State v. Barker, 888 N.W.2d 348, 354 (Minn. App. 2016).
In this case, the firearm was found in a backpack that was w ithin arm’s reach of
Jackson. The backpack contained a letter a ddressed to Jackson from the United States
Department of Education and a credit card in Jackson’s name. Although the vehicle was
not registered to Jackson, he was the sole occupant of the vehicle at the time of the traffic
stop, and there is no evidence in the record to suggest that anyone other than Jackson had
access to the backpack at the time of the stop. Before the district court instructed the jury
on the elements of the offense, the court disc ussed the proposed jury instructions with
counsel and noted the following revisions:

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THE COURT: I would just note in looking at the proposed
final instructions on the elemen ts of the offense, which is
CRIMJIG 32.17, I like to tailo r the elements as much as
possible to fit the theory or the evidence in the case, and so the
first element currently reads, ‘The defendant knowingly
shipped, transported, possessed, or received a firearm.’ It
would seem as if at least sh ipped and received could be
dropped out. I wanted to see what counsel’s thoughts were on
that or if you wanted . . .
COUNSEL FOR JACKSON: That’s fine.
. . . .
COUNSEL FOR THE STATE: The state would want transport
or possess, I have no theory that [Jackson] was shipping or
receiving this.
COUNSEL FOR JACKSON: That’s fine with us, Judge.
THE COURT: Okay. So we’ll make that change, have
transport and/or possessed a firearm.
. . . .
THE COURT: . . . Okay. Any other corrections?
COUNSEL FOR JACKSON: No.

Based on these discussions, the district court instructed the jury as follows:

[U]nder Minnesota law a person who is prohibited from
possessing a firearm but nonetheless transports or possesses a
firearm is guilty of a crime. These are the [three] elements that
the state needs to prove beyond a reasonable doubt in order to
obtain a conviction. . . . The first element is that the defendant
knowingly transported or possessed a firearm. The second
element is that . . . the defendant is prohibited from possessing
a firearm. And the third element is that his actions took place
on January 10, 2015 in Hennepin County.

These instructions accurately state the law in Minnesota. See Minn. Stat. § 624.713,
subd. 1(2) (“[A] person who has been convicted of . . . a crime of violence,” “shall not be
entitled to possess ammunition or a pistol or semiautoma tic military-style assault
weapon.”); see also 10 Minnesota Practice, CRIMJIG 32.17 (“The elements of a felon in
possession of a firearm are . . . [(1)] defenda nt knowingly . . . possessed or received a

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firearm . . . [(2)] defendant [was] convicted of . . . a crime of violence . . . [(3)] defendant’s
act took place on [a specific date].”). Because the instruction was a correct statement of
the law, and was not misleading or confus ing to the jury, it was not erroneous. State v.
Laine, 715 N.W.2d 425, 433 (Minn. 2006). Jackson has not satisfied his burden of
establishing that an error occurred.
Affirmed.