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This opinion will be unpublished and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
A16-1571

State of Minnesota,
Respondent,

vs.

Michael Eugene Tabaka,
Appellant.

Filed July 24, 2017
Affirmed
Halbrooks, Judge

Isanti County District Court
File No. 30-CR-15-144

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

Jeffrey Edblad, Isanti County Attorney, Cambridge, Minnesota, Scott A. Hersey, Special
Assistant County Attorney, St. Paul, Minnesota (for respondent)

Richard S. Virnig, Virnig Law PLLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and
Schellhas, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
On appeal from his convictions of fifth-degree controlled-substance possession and
possession of a hypodermic needle, appellant challenges the district court’s dismissal of

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his pretrial motion to suppress evidence. Appellant contends that the district cou rt erred
by concluding that the deputy had reasonable, articulable suspicion to conduct a canine
sniff of the vehicle’s exterior. We affirm.
FACTS
After midnight on February 27, 2015, an Isanti County deputy noticed a vehicle
driving on a county road in Spencer Brook Township that did not have its rear license plate
illuminated. The deputy ran a check of the vehicle’s license plate and realized that he had
stopped the same vehicle the night before and had given the driver a n oral warning for a
minor equipment violation. He then observed the driver st op the vehicle o n the road’s
shoulder. The driver activated the hazard lights and stepped out of the vehicle. The deputy
pulled up behind the vehicle and walked over to ask the driver, subsequently identified as
appellant Michael Eugene Tabaka, what was wrong with the vehicle.
During the conversation with Tabaka, the deputy observed that Tabaka’s eyes
appeared glassier than the previous night and that he spoke in a more excited, agitated
manner. The deputy asked Tabaka where he was coming from and Tabaka explained that
he was making a loop through the area. Tabaka then spontaneously said, “Well, I wasn’t
coming from Johnny’s.” With his flashlight, the deputy looked inside the vehicle and
viewed a hypodermic needle cap lying on the driver’s seat. Based on Tabaka’s
mannerisms, the unprompted comment, and the hypodermic needle cap, the deputy
believed that Tabaka might have engaged in drug-related activity.
The deputy requested Tabaka’s consent to search the vehicle. After Tabaka
declined, the deputy conducted a pat -down search of Tabaka and then removed his

3
narcotics canine from his squad car. The narcotics canine conducted a sniff around the
vehicle’s exterior and alerted the deputy to the presence of a controlled substance inside
the vehicle. The deputy searched the vehicle and discovered two hypodermic needles and
a small baggie of crystalline methamphetamine between the vehicle’s sunroof and its liner.
The deputy then arrested Tabaka.
The state charged Tabaka with one count of fifth -degree possession of a controlled
substance, in violation of Minn. Stat. § 152.025, subd. 2(a)(1) (2014) , and one count of
possession of a hypodermic needle, in violation of Minn. Stat. § 151.40, subd. 1 (2014).
Tabaka moved the district court to suppress the evidence resulting from the search. After
the district court held a contested omnibus hearing, the district court denied his motion.
The district court later held a one -day court trial and found Tabaka guilty of both counts.
The district court sentenced Tabaka to 60 days in jail. This appeal follows.
D E C I S I O N
Tabaka argues that the district court erred by determining that the deputy possessed
reasonable, articulable suspicion to deploy his narcotics canine for a canine sniff around
the vehicle’s exterior. In reviewing a district court’s order on a motion to suppress
evidence, we independently review the facts and determine, as a matter of law, whether the
district court erred in suppressing or not suppressing the evidence. State v. Askerooth, 681
N.W.2d 353, 359 (Minn. 2004). We review de novo the district court’s conclusion that
reasonable, articulable suspicion existed to justify the search. State v. Burbach , 706
N.W.2d 484, 487 (Minn. 2005). But “[appellate courts] accept the district court’s factual

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findings unless they are clearly erroneous. ” State v. Smith, 814 N.W.2d 346, 350 (Minn.
2012).
The Fourth Amendment to the United States Constitution and article I of the
Minnesota Constitution protect citizens from unreasonable searches and seizures. U.S.
Const. amend. IV; Minn. Const. art. I , § 10. A search co nducted without a warrant is
presumptively unreasonable unless the search falls within one of the few well -established
exceptions to the warrant requirement. State v. Lugo, 887 N.W.2d 476, 486 (Minn. 2016).
One exception to the warrant requirement is tha t a police officer may “conduct a brief,
investigatory stop when the officer has a reasonable, articulable suspicion that criminal
activity is afoot.” State v. Timberlake , 744 N.W.2d 390, 393 (Minn. 2008) (quotation
omitted). Police must have reasonable, articulable suspicion of drug-related activity prior
to initiating a canine sniff around the exterior of a vehicle. State v. Wiegand, 645 N.W.2d
125, 137 (Minn. 2002).
Reasonable suspicion occurs when a police officer has a particularized and objective
basis for suspecting that a particular person is engaging in criminal activity. Lugo, 887
N.W.2d at 486. The suspicion must be based on “ ‘specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that
intrusion.’” State v. Davis , 732 N.W.2d 173, 182 (Minn. 2007) (quoting Terry v. Ohio ,
392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). Because of their special training, a police
officer articulating a reasonable suspicion may make inferences and deduc tions that may
elude an untrained person. State v. Flowers, 734 N.W.2d 239, 251-52 (Minn. 2007). The
requisite showing for reasonable suspicion is not high and is less than probable cause.

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Timberlake, 744 N.W.2d at 393. But police cannot use a canine t o conduct a canine sniff
“at random and without reason ,” State v. Carter , 697 N.W.2d 199, 211 (Minn. 2005)
(quotation omitted), or out of “mere whim, caprice, or idle curiosity ,” Wiegand, 645
N.W.2d at 134 (quotation omitted).
Tabaka contends that the dis trict court relied on inappropriate facts and made
impermissible legal conclusions in determining that the deputy possessed reasonable,
articulable suspicion. Tabaka’s argument first suggests that the district court improperly
relied on (1) his refusal to consent to the search of the vehicle, (2) his nervousness, (3) his
affiliation with “Johnny” (a known individual with a substantial history involving drug
crimes), and (4) the deputy’s knowledge of his prior use of methamphetamine as facts that
would demonstrate that the deputy possessed a reasonable suspicion. Although the district
court did provide this information as context in its factual findings, it did not rely on these
particular facts in concluding that the deputy possessed reasonable, articulabl e suspicion
that would justify the canine sniff around the vehicle’s exterior.1
Instead, the district court based its conclusion on several other facts that would
indicate that Tabaka may have been engaging in drug-related criminal activity, including:
(1) the deputy’s observation of a hypodermic needle cap in the driver’s seat , (2) the

1 Tabaka contends that the district court relied on facts “not even in the record” and asserts
that there is nothing in the record that supports the deputy’s knowledge of him as a
methamphetamine user. But the deputy testified that he had known Tabaka for quite some
time. An d the probable -cause statement in the complaint, which was admitted in to
evidence at the hearing, specifically provides that Tabaka is a known user of
methamphetamine. Because the evidence in the record supports the district court’s finding,
the finding is not clearly erroneous.

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deputy’s knowledge that a hypodermic syringe would constitute illegal contraband, (3) the
spontaneous nature of Tabaka’s comment about “Johnny ,” and (4) Tabaka’s appearanc e
and mannerisms suggesting impairment. We evaluate these findings to decide whether
they properly support the district court’s determination of reasonable suspicion.
Tabaka emphasizes that the possession of a hypodermic needle cap is “in and of
itself” not illegal or even suspicious activity. He then provides several “innocent reasons”
for why the cap may have appeared in the vehicle. But Tabaka attempts to view this
information in isolation rather than in combination with the other relevant circumstances.
See Davis , 732 N.W.2d at 182 (“[Minnesota courts] consider the totality of the
circumstances when determining whether reasonable suspicion exists, and seemingly
innocent factors may weigh into the analysis.”). Although the possession of a hypodermic
needle cap is an inherently innocent activity, in the context of this stop combined with the
other circumstances indicating impairment , we believe that the presence of the cap
reasonably raised the deputy’s suspicion of drug possession . See State v. Muno z, 385
N.W.2d 373, 376 -77 (Minn. App. 1986) (stating that an officer who “observed glassine
envelopes in plain view” and “was familiar with such containers as being commonly used
to market controlled substances” could reasonably conclude that “controlled s ubstances
might be present”).
Tabaka also contends that the district court improperly accepted his “nervousness”
as a factor supporting reasonable suspicion. While he is correct that Minnesota courts are
reluctant to rely on nervous behavior to support a finding of reasonable suspicion, the
district court never mentions Tabaka’s allegedly nervous demeanor as one of the reasons

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justifying reasonable suspicion. See Burbach, 706 N.W.2d at 490. And even if Tabaka
was indeed nervous, his attempt to justify his mannerisms on innocent conduct, such as the
result of cold weather and car trouble, is unavailing. This argument again fails to account
for the combination of circumstances that altogether raised the deputy’s suspicion. See
Smith, 814 N.W.2d at 353 (considering nervous -like behavior with other conduct that
suggested defendant was engaging in drug-related activity).
Similarly, Tabaka asserts that because the deputy did not note any actual signs of
intoxication through field sobri ety tests or chemical testing, the district court could not
have used Tabaka’s impairment as a factor for finding reasonable suspicion. But we defer
to the district court’s findings regarding the reasonableness of a person’s behavior during
a stop. Id. at 354. This same deputy had stopped Tabaka the night before giving him a
reasonable frame of reference in observing Tabaka’s behavior and mannerisms. And
exhibiting glassy eyes, making spontaneous, unprompted comments, and speaking in an
agitated manner are all reasonable indicators of drug use that would support an objective
suspicion of drug-related activity and drug possession. Cf. Burbach, 706 N.W.2d at 491
(holding that lack of signs of drug use or impairment, along with other minor factors, does
not support reasonable suspicion of drug possession).
We conclude that the totality of the circumstances established reasonable,
articulable suspicion justifying the deputy’s decision to deploy his canine partner and
conduct a canine sniff around the exter ior of the vehicle. The district court did not err by
denying Tabaka’s motion to suppress evidence of the search.
Affirmed.