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This opinion will be unpublished and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
A16-1784

State of Minnesota,
Respondent,

vs.

Paul Alan Anderson,
Appellant.

Filed November 27, 2017
Affirmed
Smith, John, Judge*

Hennepin County District Court
File No. 27-CR-15-32845

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

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Jesson, Judge; and
Smith, John, 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
SMITH, JOHN, Judge
We affirm appellant's conviction for ineligible person in possession of ammunition
because the district court did not err by denying appellant's suppression motion, which
was based on appellant's argument that the arresting officer did not have reasonable
suspicion or probable cause to support expansion of a traffic stop and a warrantless search
of appellant's person.
FACTS
Officer Ste ven Larson of the Plymouth Police Department was on patrol in
Plymouth when he stopped a van with expired plates. As he approached the van, he noticed
there were multiple passengers, some of whom “appeared to have lit fresh cigarettes.”
Larson, an experienced officer, believed this was either an indication that the passengers
were nervous or they were attempting to cover up odors of alcohol or narcotics. As Larson
approached, he shone his flashlight into the van , and his squad headlights illuminated the
van.
Larson first spoke with the driver, who told Larson that he did not have a driver’s
license and did not know to whom the vehicle was registered. Larson discovered that the
driver had a valid license, and the van was registered to the driver’s ex-wife, who also had
a no-contact order against the driver; these facts “heightened [Larson’s] suspicion.” When
Larson asked the driver for proof of insurance, he hesitated, and then asked Larson to just
issue him a ticket for no proof of insurance. This struck Larson as “unusual.”

3
When he first stopped the van, Larson observed tha t none of the four passengers
was wearing seatbelts, including one man who was sitting on a pile of clothes. After
speaking with the driver, he asked for identification from the passengers, intending to issue
citations for seatbelt violations. Larson recognized appellant Paul Alan Anderson from a
prior encounter. While checking the identifications, Larson discovered that he had assisted
in execution of a search warrant at appella nt’s residence based on a suspected controlled-
substance crime, and that appellant was present at a search for weapons that had been
conducted by other officers. Three of the passengers had felony convictions.
In order for Larson to talk with the passen gers and collect their identification, the
side door was opened; as Larson spoke with the passengers, he noticed 20 BBs lying loose
on the van floor and what appeared to be a plunger from a syringe sticking out of the pile
of clothes. Larson, who is a K -9 officer, decided to conduct a dog sniff of the van. After
backup officers arrived, he directed all the passengers to get out of the van. Larson asked
appellant if he had any weapons on him, in part because of the BBs he saw on the van floor,
but also be cause of appellant’s “history of weapons” and the fact that three of the four
passengers in the van had felony records. Before Larson patted him down, appellant
volunteered that he had a gun in his waist belt. 1 Another officer took the gun and Larson
continued his pat search. Larson discovered six rounds of 40 -caliber ammunition in
appellant’s front pocket. Appellant was arrested on probable cause that he was an ineligible

1 The gun was a BB gun powered by CO2 . Under State v. Haywood, 886 N.W.2d 485, 490
(Minn. 2016), a CO 2 powered BB gun is not a “firearm” for purposes of Minn. Stat.
§ 609.165, subd. 1b (2014), and, therefore, appellant was not convicted of ineligible person
in possession of a firearm.

4
person in possession of a firearm or ammunition before Larson’s dog did an inves tigative
sniff of the van.
Appellant waived his rights to jury trial and the charge of ineligible person in
possession of ammunition was tried to the court. The district court issued its findings of
fact, conclusions of law, and guilty verdict, concluding that the initial traffic stop was
permissible, and Larson’s expansion of the scope of the traffic stop was supported by
reasonable articulable suspicion. The district court sentenced appellant to 60 months in
prison. This appeal followed.
D E C I S I O N
Appellant argues that his conviction should be reversed because the district court
erred by denying his suppression motion. Both the United States and Minnesota
Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn.
Const. art. I, § 10. A warrantless search is presumptively unreasonable unless performed
pursuant to an exception to the warrant requirement. State v. Leibl, 886 N.W.2d 512, 515-
16 (Minn. App. 2016). A law enforcement officer may make a brief warrantless
investigative stop of an automobile after observing even a minor traffic law violation. State
v. Flowers, 734 N.W.2d 239, 251 (Minn. 2007). But “each incremental intrusion during a
traffic stop [must] be tied to and justified by one of the following: (1) the original legitimate
purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in
Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1968 (1968)].” State v. Askerooth, 681 N.W.2d 353,
365 (Minn. 2004). We review the district court’s find ings of fact on a suppression issue

5
for clear error and its legal conclusions de novo. State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008).
The district court found that Larson stopped a van with expired plates, a minor
traffic violation. “Ordinarily, if an officer observes a violation of a traffic law, however
insignificant, the officer has an objective basis for stopping the vehicle.” State v. George,
557 N.W.2d 575, 578 (Minn. 1997). Appellant does not contest the validity of the original
stop for the expired plates. Appellant argues, however, that Larson’s expansion of the stop
to include investigation of violations of the seatbelt law was not supported by reasonable
articulable suspicion.
According to La rson’s testimony, his suspicion was aroused because (1) all four
passengers lighted cigarettes as he approached, which he interpreted as either a sign of
nervousness or an attempt to cover up an odor of alcohol or drugs; (2) the driver denied
having a driver’s license or knowing the registered owner of the car; (3) Larson discovered
the driver had a valid license and the car was registered to his ex-wife, who had a restraining
order against the driver; (4) the driver refused to look for insurance information; and (5) it
appeared that none of the passengers was wearing a seatbelt, including one passenger who
was seated on a pile of clothes. This combination of circumstances led Larson to decide to
identify the passengers in order to issue citations for seatbelt violations.
“To remain constitut ional, an intrusion not strictly tied to the circumstances that
rendered the initiation of the stop permissible must be supported by at least a reasonable
suspicion of additional illegal activity.” State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).
An officer has a reasonable suspicion of illegal activity when “the facts available to the

6
officer at the moment of the seizure would warrant a man of reasonable caution in the belief
that the action taken was appropriate.” Id. at 351-52 (quotation omitted). “The reasonable-
suspicion standard is not high. It is enough that a law enforcement officer can articulate
specific facts which, taken together with rational inferences from those facts, objectively
support the officer’s suspicion.” Lugo, 887 N.W.2d at 48 6 (quotation and citations
omitted). The circumstances Larson noticed were enough to support an expansion of the
stop to include citing the passengers for violating the seatbelt law, which permitted him to
ask for identification from the passengers.
Appellant argues that Larson did not have a particularized basis for believing that
appellant was not wearing a seatbelt because Larson could not see that the passengers were
not wearing seatbelts until after the van was stopped. Appellant testified that he was
wearing a seatbelt and continued to do so after the van was stopped, and it was too dark for
Larson to see into the van. Contrary to appellant’s argument, the squad video indicates
that Larson shone his flashlight into the van interior and could have seen the passengers.
This action occurred immediately after the van stopped and it is unlikely that all passengers
would have spontaneously removed their seatbelts in less than 15 seconds, which is the
time lapse in the squad video between the stop and Larson’s approach to the van. We defer
to the district court’s credibility determinations. Moreover, t he district court found
appellant’s testimony not credible and believed Larson’s testimony. See State v. Super ,
781 N.W.2d 390, 396 (Minn. App. 2010) (stating that “factfinder is the exclusive judge of
witness credibility”), review denied (Minn. June 29, 2010).

7
When the van door was opened so that he could obtain the passengers’
identification, Larson saw 20 BBs and what appeared to be part of a syringe. He knew that
three of the passengers had felony records. Larson decided to have his dog do an
investigative sniff of the van, suspecting that there might be narcotics or weapons. “[A]
police officer must have a reasonable, articulable suspicion of dr ug-related criminal
activity before law enforcement may conduct a dog sniff around a motor vehicle lawfully
stopped for some other reason.” Lugo, 887 N.W.2d at 486. Even if an individual
circumstance is consistent with innocent behavior, the totality of the circumstances may
raise a reasonable suspicion of unlawful activity. State v. Martinson, 581 N.W.2d 846, 852
(Minn. 1998). The visible BBs, the passengers’ felony records, and the presence of what
appeared to be part of a syringe gave Larson reasonable suspicion to expand the stop.
Before permitting his dog to do a sniff, Larson removed the passengers from the
van, both for the safety of the officers and for the safety of the passengers, because he knew
his dog could jump through a window and hurt s omeone. A law enforcement officer may
order a passenger to get out of a lawfully stopped vehicle despite having no individualized
basis to do so, without offending either the United States or the Minnesota Constitution s.
Maryland v. Wilson , 519 U.S. 408, 414 15, 117 S. Ct. 882, 886 (1997); State v. Ortega ,
770 N.W.2d 145, 152 (Minn. 2009); State v. Krenik , 774 N.W.2d 178, 184 (Minn. App.
2009), review denied (Minn. Jan. 27, 2010).
When an officer secures a scene, he may perform a pat search for weapons.
Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S. Ct. 2130, 2136 (1993). Such a pat
search is permissible when an officer is conducting an investigation at close range and the

8
search is limited to that necessary “to allow the officer to pursue his investigation without
fear of violence.” Id. (quotation omitted). As Larson performed the pat search, appellant
informed him that he had a gun in his waist belt. The gun was removed by other officers
and Larson continued the search, discovering by plain feel six rounds of 40 caliber
ammunition.
The United States Supreme Court acknowledged the validity of the “plain feel”
exception to the warrant requirement in Dickerson, concluding that like the plain -view
doctrine, there is “no invasion of a legitimate ex pectation of privacy and thus no ‘search’
within the meaning of the Fourth Amendment.” Id. at 375, 113 S. Ct. at 2137. “If a police
officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or
mass makes its identity immediately apparent, there has been no invasion of the suspect’s
privacy beyond that already authorized by the officer’s search for weapons.” Id. at 375-
76, 113 S. Ct. at 2137. Larson testified that as he patted appellant down, he “felt what
appeared obviously to be ammunition in his front coin pocket, smaller pocket.” Because
Larson knew that appellant was ineligible to have either a firearm or ammunition, he
arrested appellant.
We conclude that each incremental expansion of this traffic stop was supported b y
reasonable, articulable suspicion, and, therefore, the district court did not err by refusing to
suppress the evidence recovered during the stop.
Affirmed.