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This opinion will be unpublished and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
A17-0175

State of Minnesota,
Respondent,

vs.

Alex William Rosa,
Appellant.

Filed December 26, 2017
Reversed and remanded
Jesson, Judge

Redwood County District Court
File No. 64-CR-16-239

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

Jenna M. Peterson , Redwood County Attorney, Redwood Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Jesson, Judge; and Florey,
Judge.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
During a traffic stop, police asked the appellant, Alex Rosa, if they could search his
truck. Exercising his constitutional right not to consent to a warrantless search, Rosa
refused, but the officers had probable cause to search without a warrant. During the search,
police discovered methamphetamine and Rosa was charged with fifth-degree drug
possession. At trial, the prosecutor asked the officers multiple questions about Rosa’s
refusal to let them search the truck. The prosecutor also emphasized Rosa’s refusal during
closing arguments. Ultimately, the jury found Rosa guilty. He appealed, arguing that the
prosecutor’s questions and comments about his refusal to consent to a warrantless search
constitute prejudicial prosecutorial misconduct. We agree and reverse and remand.
FACTS
Late at night, Sergeant Matt Ledeboer drove his patrol car across a lone county road
in Redwood County. Cars were using their brights to cut through the darkness, and as
Sergeant Ledeboer met oncoming traffic, he noticed that one truck would not dim its lights.
He swung his patrol car around, caught up to the truck, and initiated a traffic stop.
Sergeant Ledeboer walked toward the truck and made contact with the occupants ,
the driver, appellant Alex Rosa , and a front -seat passenger. As he spoke with Rosa,
Sergeant Ledeboer smelled marijuana coming from the vehicle. He asked Rosa if he could
search the truck. Rosa refused, but Sergeant Ledeboer believed he had probable cause to
search based on the marijuana smell. Another officer arrived on the scene , Officer Frank
Wortham, and the two began to search the truck.
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As the search was underway, Officer Wortham noticed the front-seat passenger drop
and kick what looked like a glass pipe out of eyesight. Officer Wortham went to investigate
what the front-seat passenger was doing and during an inspection of the area, he found a
baggie of marijuana nearby. T he passenger was not arrested or charged with any crime
related to this incident.
During Sergeant Ledeboer’s search, he shifted his attention to the pouch behind the
driver’s seat. He peered inside and found a package of Camel-brand cigarettes nestled
within. Opening the package, he saw a baggie scrunched up against a couple cigarettes left
in the pack. He pulled out the baggie and saw shards of a crystalline substance he believed
were methamphetamine, which l ater testing verified. Rosa was placed under arrest for
possession of a controlled substance.
Rosa’s case eventually went to a jury trial. There, the prosecutor asked the officers
directly about Rosa’s refusal to consent to the search of the truck and whether that refusal
was concerning. Both officers agreed it was concerning, with Sergeant Ledeboer replying
that some people refuse to consent because they might be nervous about what is inside the
vehicle. Officer Wortham echoed this concern, telling the prosecutor that in his experience
when someone does not consent to a search, this can lead to uncovering drugs or other
contraband from the vehicle.
Rosa’s defense theory was to shift suspicion to the front -seat passenger. Rosa
stressed that the drugs were within reach of the passenger and were found in a Camel-brand
cigarette package, the passenger’s brand of choice. Rosa’s theory made sure to note that
4
there were still some cigaret tes lingering inside the package when the drugs were
discovered, and that Rosa preferred Marlboro-brand cigarettes.
During closing arguments, the prosecutor narrated the events of the stop to the jury.
This narration included a retelling of Sergeant Led eboer’s request to search and Rosa’s
refusal, which she described as a “red flag .” Finally, in rebuttal argument, the prosecutor
rhetorically asked the jury, “What else do we know?” and replied by telling the jury, again,
that Rosa refused to consent to the search, describing this as a “red flag [].” Because this
occurred on rebuttal argument, Rosa’s attorney did not have a chance to respond.
The parties concede that t hroughout the trial, Rosa did not object to any of the
prosecutor’s questions or statements touching on his refusal to consent. Ultimately, the
jury convicted Rosa of fifth-degree possession of a controlled substance and t he district
court stayed execution of his sentence to five years of probation. Rosa appealed.
D E C I S I O N
Rosa argues that the trial prosecutor committed reversible misconduct by pointedly
and repeatedly referring to Rosa’s refusal to consent to the search of the truck in front of
the jury. The implication being that when the prosecutor discussed Rosa’s refusal, this
signaled that he was guilty and poisoned the jury against him. And while the details of our
decision certainly focus on the legal architecture required to construct a prosecutorial
misconduct claim, the fact that the prosecutor exploited Rosa’s Fourth Amendment right
to say “no” to the search looms large over our decision.
The Fourth Amendment’s protection against unreasonable searches and seizures
insulates every person from unreasonable government needling into our privacy. State v.
5
Schrupp, 625 N.W.2d 844, 846 (Minn. App. 2001) (citing Terry v. Ohio, 392 U.S. 1, 9, 88
S. Ct. 1868, 1873 (1968)) , review denied (Minn. July 24, 2001). This is an important
protection that upholds what courts sometimes refer to as the individual’s right to be left
alone. State v. Larsen, 650 N.W.2d 144, 148 (Minn. 2002) (quoting Olmstead v. United
States, 277 U.S. 438, 478, 48 S. Ct. 564, 572 (1928) (Brandeis, J., dissenting)) ; United
States v. Place, 462 U.S. 696, 706-07, 103 S. Ct. 2637, 2644 (1983) (stating that the Fourth
Amendment protects individuals from “unreasonable government intrusions into their
legitimate expectations of privacy”).
Rosa exercised his right to be left alone by refusing to give police consent to search
his truck . And though an officer has every right to ask for permission to search, the
individual has just as much right to say no. State v. George, 557 N.W.2d 575, 579 (Minn.
1997). For the prosecutor to punish Rosa for doing what the law plainly allows—implying
to the jury that his refusal was somehow linked to guilt—is a due process violation of the
most basic sort. Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 668 (1978). It
would be patently unconstitutional for the prosecutor to penalize Rosa’s reliance on his
legal rights. Id.
Rosa’s argument falls under the umbrella of a prosecutorial misconduct claim.
Because Rosa failed to object to these comments at trial, we analyze this claim through the
plain-error standard. State v. Ramey , 721 N.W.2d 2 94, 298 (Minn. 2006) . Under this
standard, an error is “plain” if three things occur:
 there is error,
 that error is plain, and
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 that error affects the defendant’s substantial rights.
Id. If all three of these elements are present, then the court must deter mine whether the
error must be addressed to ensure “fairness and the integrity of the judicial proceedings.”
Id. at 302. In this type of prosecutorial misconduct case, the burden is on the defendant to
prove the first two elements—that is, there was error and that error was plain. Id. at 299-
300. If the defendant succeeds, then the burden shifts to the state to disprove the third
element: that the plain error did not affect the defendant’s substantial rights. Id. We
examine each factor of the analysis below.
Discussing Rosa’s refusal to consent to a warrantless search was an error.
The Minnesota Supreme Court addressed a prosecutor ’s decision to bring up a
defendant’s refusal to consent to a warrantless search in State v. Jones , 753 N.W.2d 677
(Minn. 2008). Jones involved a prosecutor showcasing a defendant’s refusal to give police
permission to take DNA samples at a jury trial . Id. at 686. While the supreme court
ultimately affirmed the conviction, it analyzed the case through a federal rule holding that
it is an error and a due process violation when a prosecutor comment s on a defendant’s
refusal to give consent to a warrantless search. Id. at 687 (citing United States v. Runyan,
290 F.3d 223, 249 (5th Cir. 2002)).
Rosa’s p rosecutor brought up his refusal to consent to a warrantless search six
times—a concerning fact to begin with. The state offers two arguments to counter this
concern. First, it argues that the references to Rosa’s refusal were only indirect references
that do not require us to reverse his conviction. Second, the state argues that even if the
references were direct, the prosecutor did not knowingly elicit the error-riddled statements.
7
To its first point, the state is correct that when a prosecutor comment s on a
defendant’s refusal to consent to a warrantless search, there is a divide between direct and
indirect evidence of that refusal. It is misconduct for a prosecutor to present direct evidence
that a defendant declined to consent to a warrantless search. State v. Hill, 801 N.W.2d 646,
654 (Minn. 2011). But it is not misconduct for the prosecutor to craft a string of questions
whose logical endpoint may be an inference that a defendant refused to consent. Id. (citing
Jones, 753 N.W.2d at 687).
The state argues that the references and questions about Rosa’s refusal were only
indirect comment s, but this is contradicted by the record. The prosecutor both elicited
testimony from police and made comments that put the spotlight directly on Rosa’s failure
to consent. For instance, the prosecutor pointedly asked both officers if Rosa consented to
the search. When the officers responded that Rosa had not consented, the prosecutor asked
if that refusal concerned them. Both agreed it was concerning. During rebuttal argument,
the prosecutor described Rosa’s refusal as a “red flag” and echoed the officers’ concerns
and suspicions. These comments and questions were not speculative or inferential leaps
from otherwise benign questioning; they were designed to draw direct attention to Rosa’s
refusal. This was direct evidence meant to transform Rosa’s Fourth Amendment right to
say “no” into a shadow of guilt, a tactic in direct violation of the directive in Jones. 753
N.W.2d at 687.
Second, the state argues that it did not commit error because that would require the
prosecutor to “knowingly” elicit the inadmissible evidence . There are two problems with
this argument. First, the precedent the state uses to support this “knowing” requirement is
8
not applicable. The state claims that this requirement is grounded in State v. White, 295
Minn. 217, 223, 203 N.W.2d 852, 857 (1973). But we do not read nor find this requirement
in the case. White involved improper trial questions from a prosecutor. Id. The state
defended these questions as fair game since the defense used its own improper tactics. Id.
The Minnesota Supreme Court rejected this tit-for-tat reasoning by citing to an American
Bar Association standard outlining that it is always unprofessional conduct for either side
to knowingly make impermissible comments in front of the jury. Id. It is this language
the state highlights in Rosa’s case as evidence of a “knowing” requirement in prosecutorial
misconduct law. But i n context, thi s language was not a newly forged element of law.
Rather, it was a stark reminder to both sides of the aisle that an attorney’s ethical
obligations should always adhere to the highest standards of professionalism.
The second problem with the state’s lack-of-knowledge argument is that the record
shows otherwise. Rosa’s prosecutor directly asked Sergeant Ledeboer twice if police
searched Rosa’s truck without consent. The prosecutor also asked both officers if Rosa’s
refusal to consent was suspicious or concerning. Both officers used the prosecutor’s
question as an opening to give their opinions about why refusing to consent can lead police
to finding illegal contraband. During closing arguments, the prosecutor told jurors that not
consenting is a “red flag,” something police are —and should be—suspicious about. And
during a telling sidebar conversation, the prosecutor told the district court judge that she
wanted to probe deeper into Rosa’s refusal because the lack of consent was meaningful to
the officers and was a “red flag.” These were not minor missteps that unwittingly escaped
into the open under the pressures of trial . These were targeted questions and comments
9
engineered to paint Rosa’s constitutional right to say “no” as a stain of guilt—a due process
violation of the most basic sort . Bordenkircher, 434 U.S. at 363, 98 S. Ct. at 668.
Persistently highlighting Rosa’s refusal to consent to the search in front of the jury was an
error under Jones.
Discussing Rosa’s refusal to consent to a warrantless search was plain error.
An error is considered “plain” if it was clear or obvious. Ramey, 721 N.W.2d at
302. And here, we find that Jones’s directive forbidding commenting on a defendant’s
refusal to consent to a warrantless search has been law for nearly a decade. Jones, 753
N.W.2d at 687. Jones is hardly an outlier. I ts prohibition again st the state using rights
against a person has been scrutinized and applied in Minnesota in cases since it was
decided. See Hill, 801 N.W.2d at 654; State v. Price, No. A15-1754, 2017 WL 878684, at
*5 (Minn. App. Mar. 6, 2017); State v. Wilkes, A15-1499, 2016 WL 4262874, at *2 (Minn.
App. Aug. 15, 2016), review denied (Minn. Oct. 18, 2016) .1 And it is clear that the
prosecutor commented on, elicited testimony about, and emphasized Rosa’s refusal in
violation of Jones. Because the law on this matter is long-settled and the prosecutor’s
comments and questions conflicted with this clear and obvious law, the prosecutor’s error
was plain.

1 We recognize that unpublished opinions have limited worth, only serving for persuasive
value at best. Dynamic Air, Inc. v. Bloch , 502 N.W.2d 796, 800 (Minn. App. 1993). We
cite to these unpublished opinions only because they persuasively show that this court has
analyzed the holding in Jones on multiple occasions since it was decided.
10
Discussing Rosa’s refusal to consent to a warrantless search affected his substantial
rights.

Having determined that the prosecutor committed plain error, we turn to whether
the state demonstrated that its error did not affect Rosa’s substantial rights. This means
that if we take the misconduct out of the case, is there a reasonable chance the jur y would
have come to a different result? See Hill, 801 N.W.2d at 654 (stating that a defendant’s
substantial rights are not violated if there is “no reasonable likelihood that the absence of
the misconduct in question would have had a significant effect on the verdict of the jury”).
To assess this, we consider three factors:
 The strength of the evidence against Rosa,

 The pervasiveness of the improper conduct, and

 Whether Rosa had an opportunity to rebut the prosecutor’s improper
suggestions.

Id. We examine each factor below.
There is no magic threshold of evidence to address the first factor—the strength of
the evidence against Rosa. Rather, this determination is based on a case-by-case approach.
For instance, in State v. Jones, the evidence was considered strong for multiple reasons:
damaging inconsistencies in the defendant’s own statements, the defendant’s admission to
perjury, credible DNA evidence, and the fact that the defendant’s alternate perpetrator had
an alibi. 753 N.W.2d at 685, 693. Similarly, in State v. Hill, the evidence was sufficiently
strong where eyewitness testimony implicated the defendant in the crime, forensics eroded
the defendant’s self -defense argument, and testimony revealed that the defendant lied to
investigators. 801 N.W.2d at 655 -56. But Jones and Hill involved serious crimes where
11
there was a robust body of evidence. Rosa’s case for fifth -degree possession was
significantly slimmer in comparison.
The state’s evidence against Rosa was circumstantial. Only three witnesses were
called: the two officer s who arrested Rosa and a forensics expert who confirmed the
substance was methamphetamine. The drug baggie was found inside a cigarette pack
hidden within the back pocket of the driver’s seat . While Rosa was the one driving, both
he and the front-seat passenger could easily reach the drugs. Under cross-examination, the
officers admitted that the drugs were not found on anyone’s person. In fact, Officer
Wortham testified that Rosa was only arrested because he owned the truck and because the
drugs were found behind his seat. Rosa did give a post-arrest interview where he admitted
he was a drug addict, but denied that the drugs were his.
And the state’s main theory linking Rosa to the cigarette package containing the
methamphetamine is not ironclad. The drugs were discovered in a Camel-brand cigarette
pack with cigarettes still inside. The record shows that Rosa claimed to smoke Marlboro-
brand cigarettes —the front -seat passenger smoked Camels. But neither the cigarette
package nor the drug baggie was tested for DNA or fingerprints , injecting some doubt
about the baggie’s ownership into the case.
Reviewing the record, w e conclude that the evidence against Rosa was not
particularly strong. Neither officer observed Rosa reaching for the baggie, the baggie itself
was easily accessible to both men in the truck, and the mere fact that Rosa owned the truck
is not convincing that he must have possessed the drugs. Considering that the bag gie and
cigarette packag e were not forensically tested, this left t he case against Rosa largely
12
circumstantial. For these reasons, we conclude the strength of the evidence analysis cuts
slightly in Rosa’s favor.
We next turn to the pervasiveness of the misconduct. Pervasiveness is a somewhat
amorphous concept, but Minnesota precedent serves as a guidepost. For instance, in State
v. Davis, a prosecutor’s improper questions on cross-examination were not pervasive where
any implication was not repeated during closing arguments and the improper subject only
spanned less than one page of 64 total pages of transcript. 735 N.W.2d 674, 682 (Minn.
2007). Likewise in State v. Valentine , this court found that less than seven improper
questions and answers at tria l were not pervasive enough to affect the defendant’s
substantial rights. 787 N.W.2d 630, 642 (Minn. App. 2010), review denied (Minn.
Nov. 16, 2010). By contrast, a prosecutor’s improper questions were pervasive in State v.
Mayhorn where at least 20 tran script pages of the state’s 80 -page cross -examination
covered improper matters. 720 N.W.2d 776, 791 (Minn. 2006).
Looking at Rosa’s trial transcript, we see that the misconduct does not occur as
frequently as in Mayhorn. From the opening arguments to closing arguments , the trial
transcript is approximately 104 total pages. Of those, references to Rosa’s refusal run about
nine pages . But determining the pervasiveness of prosecutorial misconduct is not an
arithmetic problem. There is no golden ratio of misconduct to non -misconduct that
decisively tips the scales into pervasiveness territory; o ther considerations play an
important role. For instance, the length of Rosa’s trial was merely one day , so the
misconduct did not have time to dissipate from the jurors’ minds like it would over a longer
13
period of time. More important is strat egy; as we see in the record, t he prosecutor’s trial
strategy was designed from the start to tie Rosa’s refusal to his guilt.
The first time the prosecutor fleshes out Rosa’s refusal to consent is during direct
examination of Sergeant Ledeboer. The prosecutor asks, “Did [Rosa] give you consent to
search the vehicle?” Sergeant Ledeboer replies, “No, [be]cause that was denied .” The
prosecutor follows, “The fact that [Ro sa] told you there were no drugs and he refused [to
consent], were those concerning to you?” “Yes,” Sergeant Ledeboer answers, continuing,
“it’s always concerning when people refuse a consent search um, some people refuse just
for the sake of refusing, others refuse because they are nervous about what may or may not
be in there.” A few questions later, the prosecutor again asks if Sergeant Ledeboer searched
Rosa’s truck without consent. “Yes,” he says. And on redirect, the prosecutor asks if the
refusal was suspicious.
The topic resurfaces during Officer Wortham’s testimony. The prosecutor asks
Officer Wortham to describe Rosa’s refusal and Officer Wortham replies,
A: Uh, Sergeant Ledeboer informed that he could smell the marijuana
and then asked for consent to search the vehicle.
Q: Asked who?
A: The Defendant, Alex Rosa.
Q: Okay and what was his response?
A: No.
Q: Okay. Was his response concerning to you?
A: Yes.
Q: Why is that?
A: Um, based off of my past experiences and trainings, general ly when
somebody says no to searching a vehicle that can lead to more drugs
or contraband in the vehicle that something that is illegal that they
shouldn’t have in the vehicle that they don’t want you to find.

14
In its closing and rebuttal arguments, the prosecutor echoes these statements, first
by painting the scene for the jury: “Sergeant Ledeboer’s still kind of suspicious, asks [Rosa]
if he would allow the officers to search the vehicle. [Rosa] refuses to allow of ficers to
search the vehicle.” Then shortly after, the prosecutor describes this refusal as a “red flag.”
And on rebuttal argument, the prosecutor circles back to the refusal and tells the jury,
“What else do we know? [Rosa] refused to consent to the search, told the officers on the
scene there were no drugs in the vehicle and from our two law enforcement officers, those
are red flags. Those are signs that something’s going on here.”
In all six instances, the prosec utor’s questions or comments imply that Rosa’s
refusal was suspicious and cause for concern. These were not unwitting slips of the tongue
or inadvertent missteps. In light of the repeated questions and the comments during closing
arguments in a relatively brief trial, we conclude the misconduct was pervasive and this
factor also cuts in favor of determining that Rosa’s substantial rights were violated.
We finally look to whether Rosa had an opportunity to rebut the prosecutor’s
improper suggestions. On one occasion, Rosa did try to explain his refusal. During cross-
examination, Sergeant Ledeboer admitted that Rosa was not required to grant permission
to search, but this was the only time Rosa offered an explanation. For the most part, Rosa
did not object to questions or comments.
Rosa argues that any meaningful rebuttal was impossible because bringing up the
issue would only ca ll attention to it in the juror s’ minds. This may be true, but the
Minnesota Supreme Court did not seem troubled by this in Hill, 801 N.W.2d at 656. The
Hill court determined that a similar implication did not affect the defendant’s substantial
15
rights because the defendant chose not to explain the refusal during cross-examination, by
calling his own witnesses, or during closing arguments. Id.
One significant difference between Hill and the current case is the prosecutor’s
comment during rebuttal argument. Rebuttal gives the final word to the state before
handing the case off to the jury and there is usually no opportunity for the defense to
respond. This means that when the prosecutor in Rosa’s case told the jury that the officers
believed Rosa’s refusal was a “red flag,” Rosa could not neutralize or explain this
comment. This alone is problematic, since it was one of the final impressions the jury took
back into deliberations. So while Rosa could have done more to counteract the misconduct
during cross -examination, it was not possible to address the issue after rebuttal. All
together, we conclude that this factor is neutral for Rosa’s case.
Weighing all the factors, we determine that the case against Rosa was not
particularly strong, the prosecutor’s comments suggesting Rosa was guilty because he
refused consent were pervasive, and Rosa had some opportunities to rebut the prosecutor’s
improper implications , which he took advantage of once, though he could not have
counteracted the implication from rebuttal argument. Ultimately, it was the prosecutor’s
burden to prove that Rosa possessed the drugs beyond a reasonable doubt. Our justice
system does not clear a path for that burden by turning the accused’s constitutional rights
against him. In light of the legal factors and these overarching principles, we conclude that
the prosecutor’s comments and questions affected Rosa’s substantial rights.
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A new trial is required to ensure fairness and the integrity of judicial proceedings.
Having met all three factors of the plain -error analysis, we turn to whether a new
trial is required to ensure fairness and the integrity of the judicial proceedings. In
examining this factor, the supreme court has noted that a prosecutor is a “minister of justice
whose obligation is to guard the rights of the accused as well as to enforce the rights of the
public.” Ramey, 721 N.W.2d at 300 (quotation omitted). This means that a prosecutor
“may not seek a conviction at any price,” but instead, is obligated to ensure that a defendant
receives a fair trial, regardless of how strong the evidence against the defendant might b e.
Id.
The prosecutor’s error in this case was implying that Rosa was guilty of the crime
simply because Rosa exercised his constitutional right to decline a search. This was a
serious error. It was an error that placed a conviction over Rosa’s right to the fair trial and
the rights of the public at large. This system entrusts a large amount of discretion and
power in the hands of prosecutors, and in this case, that power was wielded improperly.
Fairness and the integrity of our judicial proceedings require a new trial.
In summary, Rosa had every right —including a constitutional right —to tell
Sergeant Ledeboer “no” that night, but the prosecutor transformed that “no” into a weapon
against Rosa. These questions and comments were not excusable slips, instead, they seem
designed to forge a meaningful implication that Rosa had something to hide. This is a
troubling tactic and one that requires a strong remedy. Because the statements were error
17
affecting Rosa’s substantial rights, we conclude they were plain error requiring reversal. 2
We remand for a new trial.
Reversed and remanded.

2 Because our conclusion on the prosecutorial misconduct issue is dispositive of this case,
we do not address Rosa’s other claims in this appeal.