William Eduardo Fajardo, petitioner, Appellant,

This opinion will be unpublished and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
A17-0414

William Eduardo Fajardo, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 4, 2017
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CR-14-2407

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from the denial of postconvi ction relief following conviction of first-
degree controlled-substance crime, appellant argues that the postconviction court erred in
concluding that the district court properly denied his motion to suppress evidence obtained
during a warrantless investigative stop and frisk. We affirm.
FACTS
Around 10:45 p.m. on Apr il 8, 2014, Officer McNeill of the Saint Paul Police
Department pulled over a vehicle for making an illegal right turn. He suspected the driver
may have been impaired. After he turned on his squad-car lights, but before the car pulled
over, Officer McNeill noticed “a bunch of movement” coming from the front passenger’s
side of the vehicle. Both the driver and th e front passenger were shifting positions in the
vehicle. Based on his training and experience, Officer McNeill believed the occupants of
the vehicle may have been hiding something or reaching for a weapon. He radioed for
backup.
Officer McNeill approached the vehicle and spoke with the driver as he waited for
backup. When backup arrived, Officer McNeill frisked the driver for weapons. He secured
the driver in the back of his squad car after he found no weapons on the driver’s person.
Officer McNeill told backup Officer Wilson of the Saint Paul Police Department
that he was concerned about the front passenger, appella nt William Eduardo Fajardo,
because he exhibited multiple movements during and after the stop. Officer Wilson asked

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questions of appellant, who exhibited nervous behaviors. Officer Wilson believed
appellant may have had a weapon and pat-searched him for officer safety.
Officer Wilson felt something hard and rectangular in appellant’s pocket as he pat-
searched appellant. He removed the object, which was a cigarette hard pack. As he set the
cigarette pack down on the hood of the squad car, Officer Wilson felt something hard inside
of the cigarette pack. He op ened the cigarette pack becaus e he suspected a weapon may
have been concealed inside. Inside the ci garette pack was a baggie that contained a
crystalline substance that appellant confirmed was methamphetamine.
After arresting appellant and securing him in the back of his squad car, Officer
Wilson searched the front passenger’s seat wh ere appellant had been sitting. He found a
jacket on the seat and a search of the jacket revealed a scale and a baggie that contained a
large amount of a substance, which later testing identified as methamphetamine.
Respondent State of Minnesota charged appe llant with one count of first-degree
controlled-substance crime in violation of Mi nn. Stat. § 152.021, subd. 2(a)(1) (2012).
Appellant filed a motion to suppress the evid ence, arguing that law enforcement illegally
expanded the scope and duration of the stop. The district court denied appellant’s motion.
Appellant waived his right to a jury trial, a nd the parties agreed to proceed with a court
trial pursuant to Minn. R. Crim. P. 26.01, subd. 4. The district court found appellant guilty,
imposed a downward dispositional departure by staying the presumptive 94-month prison
term, and placed him on probation for ten years.
Appellant filed a postconviction petition, arguing that the district court erred when
it denied his motion to suppress because law enforcement impermis sibly: (1) expanded the
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scope and duration of the stop; (2) pat-searched appellant; and (3) searched the cigarette pack
found on appellant’s person. Appellant filed an amended postconviction petition, making
an additional argument of ine ffective assistance of counse l. The postconviction court
denied appellant’s postconviction petition and amended postconviction petition in separate
orders. This appeal follows.
D E C I S I O N
I. The postconviction court did not abuse its discretion when it denied appellant’s
postconviction petition challenging the scope and duration of the stop.

This court reviews the denial of a petition for postconviction relief for an abuse of
discretion. Matakis v. State , 862 N.W.2d 33, 36 (Minn. 20 15) (citations and quotations
omitted). “We review legal issu es de novo, but on factual i ssues our review is limited to
whether there is sufficient ev idence in the record to sustain the postconviction court’s
findings.” Id. (quotation omitted). We will not reverse an order absent a showing that the
“postconviction court exercised its discretion in an arbitrary or capricious manner, based
on its ruling on an erroneous view of the law, or made clearly erroneous factual findings.”
Id.
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures, subject to certain exce ptions. U.S. Const. amend. IV ; Minn. Const. art. I, § 10.
One such exception is an investigatory Terry stop, which allows law-enforcement officials
to temporarily detain a suspect if the officer harbors a reasonable, articulable suspicion of
a motor-vehicle violation or criminal activity. Navarette v. California, 134 S. Ct. 1683,

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1687 (2014) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968)); State
v. Duesterhoeft, 311 N.W.2d 866, 867-68 (Minn. 1981).
“An initially valid stop may become invalid if it becomes intolerable in its intensity
or scope.” State v. Askerooth , 681 N.W.2d 353, 364 (Minn. 2004) (quotation omitted).
The scope of the stop must be limited to the reason for the stop, unless identifiable and
objective facts lead the officer to develop a reasonable, articulable suspicion of other illegal
activity, in which case the officer may legally expand the scope and duration of the stop to
investigate that other illegal activity. State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).
Each incremental intrusion 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.” Askerooth, 681 N.W.2d at 365.
A. Officer McNeill permissibly expanded the scope of the stop when he
called for backup.

Appellant argues that the postconviction court erred when it rejected his claim that
Officer McNeill did not have reasonable, articulable suspicion to expand the scope of the
stop when he called for backup officers. We disagree.
Here, Officer McNeill observed identifiable, objective factors that warranted his call
for backup. First, he had a reasonable suspic ion that the driver may have been impaired
because the driver left his blinker on for a few seconds after making a wide right turn. The
driver did not immediately pull over, and when he did, the vehicle jumped up onto the
driveway ramp and curb on the side of the road.

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Second, Officer McNeill obser ved both appellant and the driver making furtive
movements and shifting their weight as he pulled over the vehicle. At that time, appellant
also leaned forward as if he were reaching under his seat. Therefore, objectively reasonable
facts support Officer McNeill’s call for backup for officer-safety reasons. See State v.
Varnado, 582 N.W.2d 886, 891 (Minn. 1998) (“offi cer safety is a paramount interest”);
State v. Flowers, 734 N.W.2d 239, 251-52 (Minn. 2007) (deferring to officer’s inferences
and deductions when articula ting reasonable suspicion because of special training they
receive).
B. Officer McNeill permissibly expanded the scope of the stop when he
made small talk with the driver of the vehicle.

Appellant argues that the postconviction court erred when it rejected his claim that
Officer McNeill illegally expanded the stop when he made small talk with the driver of the
vehicle. We disagree.
An officer may expand the stop if it is tied to the stop’s original purpose. Askerooth,
681 N.W.2d at 365. Officer McNeill stopped the vehicle because he observed the driver
commit a moving violation, engaged in small talk with the driver for one minute, and asked
for the driver’s identification during that time. Thus, his small talk with the driver was tied
to the original purpose of the stop and was reasonable.
In addition, officer safety is sufficient to warrant Officer McNeill’s expansion of the
scope of the stop. See Askerooth, 681 N.W.2d at 365 (reasonableness, as defined in Terry,
is one way to expand the scope of a search or seizure). Based on an objective analysis of
the totality of the circumstances, there were sufficient facts to establish a reasonable,
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articulable suspicion that either the driver or appellant, or both, were reaching for a weapon
or engaged in other illegal activities.
C. Officer McNeill permissibly expanded the scope of the stop when he pat-
searched the driver for weapons.

Appellant argues that the postconviction court erred when it rejected his claim that
Officer McNeill did not have reasonable, articulable suspicion to expand the scope of the
stop to pat-search the driver of the vehicle based on the officer’s two observations of the
driver’s and appellant’s furtive movements a nd the driver’s nervousness. We are not
persuaded.
A police officer making a lawful investig atory detention of a vehicle may conduct
a limited protective pat-down search for weapon s if there exists a reasonable suspicion,
based on articulable facts, that a person is armed and dangerous. Arizona v. Johnson, 555
U.S. 323, 326-27, 129 S. Ct. 781, 784 (2009); see Terry, 392 U.S. at 30, 88 S. Ct. at 1884-
85. The officer does not need to be certain th at the person is armed; rather, the inquiry is
whether a reasonably prudent officer would fear for his safety or the safety of others. Id.
at 27; see, e.g., Flowers, 734 N.W.2d at 250-51.
Observation of furtive movement heavily influences the determination of whether a
resulting pat-frisk is lawful. See State v. Richmond , 602 N.W.2d 647, 651 (Minn. App.
1999) (stating officer had a reasonable suspicion to search in part because defendant made
a “furtive movement” by reaching toward his car’s passenger compartment), review denied
(Minn. Jan. 18, 2000).

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Generally, nervousness alone cannot serve as a basis for expanding the scope of an
unrelated traffic stop. See Smith, 814 N.W.2d at 351 (articulating reasonable nervousness
alone is insufficient, but violent shaking and evasive responses may provide reasonable
suspicion necessary to justify expansion of a traffic stop). Nervousness is “a subjective
assessment derived from the officer’s perceptions” and generally “is not sufficient by itself
and must be coupled with other particularized and objective facts.” State v. Syhavong, 661
N.W.2d 278, 282 (Minn. App. 2003) (citations omitted).
Here, Officer McNeill thought the driver was nervous because his voice cracked
when he spoke. Although nervousness alone generally does not warrant a pat-search,
nervousness coupled with furtive movements does. Id. at 282 (nervousness “must be
coupled with other particularized and objective facts” to justify pat-frisk). Based on an
objective analysis of the tota lity of the circumstances, th ere were sufficient facts to
establish a reasonable, articulable suspicion that the driver was armed and dangerous.
Therefore, Officer McNeill permissibly pat-searched the driver.
D. Officer Wilson permissibly expanded the scope of the stop when he pat-
searched appellant for weapons.

Appellant argues that the postconviction cour t erred when it rejected his claim that
Officer Wilson did not have reasonable, articul able suspicion to expa nd the scope of the
stop to pat-search him. We disagree.
Appellant exhibited nervous behaviors, did not make eye co ntact with Officer
Wilson, and gave one-word answers to questi ons. He had sweat forming on his forehead
while wearing a t-shirt in 45-degree weather. Officer Wilson could also see the carotid
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artery in appellant’s neck pul sating because his heart was be ating rapidly. Appellant’s
nervousness coupled with his furtive movement s are facts that would lead a reasonable
officer to conduct a pat-search based on objective reasonable suspicion.
II. Appellant did not forfeit his challenges to the removal and opening of the
cigarette pack.

Appellant argues that the postconviction co urt erred when it adopted the state’s
assertion that appellant forfeited his challenges to the removal and opening of the cigarette
pack. We agree.
A forfeiture is “a failure to make a timely assertion of a right.” State v. Beaulieu,
859 N.W.2d 275, 278 n.3 (Minn. 2015). A pretrial motion to suppress evidence must
specify the grounds for suppression “with as much particularity as is reasonable under the
circumstances.” State v. Needham , 488 N.W.2d 294, 296 (Minn. 1992); s ee State v.
Balduc, 514 N.W.2d 607, 609-10 (Minn. App. 1994) (concluding appellant did not forfeit
challenge to particularity of search warrant description where appellant notified prosecutor
“all usual omnibus hearing issues would be contested;” asked to have all police officers
present; and questioned officer about contents of search warrant, a pplication, and other
factors relevant to particularity). Based on the record, the state had sufficient notice of the
issues relating to appellant’s pat-search claims.
Here, appellant moved the district court to suppress “any and all evidence [ ]
obtained as a result of the illegal warrantless stop and search of the vehicle and [his
person].” In response, the state addressed the exceptions to the warrant requirement,
including the scope of a protective weapons frisk under Terry and the search of the cigarette
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pack. In addition, the officers testified about the pat-search of appellant and the search of
the cigarette pack.
Furthermore, the district court ruled on both of these issues. Finally, we note that
the proper remedy where the defendant fails to provide sufficient no tice is to reopen the
omnibus hearing to permit the state an opportunity to elicit relevant testimony to argue the
issue. Needham, 488 N.W.2d at 296. We reject the state’s forfeiture argument and
conclude that appellant did not forfeit the ch allenge to the removal and search of the
cigarette pack found on appellant’s person. We address each in turn.
A. Officer Wilson permissibly expanded the scope of the pat-search when
he removed the cigarette pack from appellant’s pocket.

Appellant argues that the removal of the cigarette pack exceeded the scope of a
protective search for weapons because it was not immediately apparent that the cigarette
pack was a weapon or contraband. We are not persuaded.
A valid protective pat-search consists “solely of a limited patting of the outer
clothing of the suspect for concealed objects which might be used as instruments of
assault.” Sibron v. New York , 392 U.S. 40, 65, 88 S. Ct. 1 889, 1904 (1968). During a
lawful pat-frisk for weapons, an officer may remove a “har d object of substantial size”
from a suspect’s person even tho ugh “the precise shape or natu re of [the object] is not
discernible through outer clothing.” State v. Bitterman, 304 Minn. 481, 486, 232 N.W.2d
91, 94 (1975). This is becaus e “weapons are not always of an easily discernible shape,
[and] a mockery would be made of the right to frisk if the officers were required to
positively ascertain that a felt object was a weapon prior to removing it.” Id.
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Here, Officer Wilson felt something hard an d rectangular in shape in appellant’s
pocket and did not specifically know if it was or was not a cigarette pack prior to removing
it. He testified that anything he “can’t cl early identify as not being a weapon from the
outside of the clothing I’ll remove to check it further to ensure that it’s not a weapon or not
concealing a weapon.” Officer Wilson was unsure whether the cigarette pack was a
weapon; thus, his pat-search of appellant was permissible.
B. Officer Wilson permissibly searched the cigarette pack.

Appellant argues that Officer Wilson illegally searched the cigarette pack recovered
during the pat-search of appellant’s person. We disagree.
After Officer Wilson retrieved the rect angular object from appellant’s pocket and
discovered that it was a cigarette pack, he set the pack down on the hood of the squad car
and noticed a hard object in th e pack. Officer Wilson could not discern what was in the
cigarette pack, but he knew that cigarettes are not typically hard. Although Officer Wilson
had never personally found a weapon in a cigarette pack, he knew from training, bulletins,
and other classes that weapons can be concealed in cigarette packs. He had also recovered
firearms that are small enough to fit inside a cigarette pack. Based on the totality of the
circumstances, Officer Wilson had a reasonable, particularized suspicion that the cigarette
pack may have contained a weapon.
III. The postconviction court did not abuse it s discretion in rejecting appellant’s
claim of ineffective-assistance-of-counsel.

Appellant argues that the postconviction cour t abused its discretion in denying his
claim of ineffective-assistance-of-counsel because his motion to suppress would have been
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granted had defense counsel ra ised and preserved arguments that Officer Wilson’s pat-
search of appellant and opening of the cigare tte pack were impermissible. Appellant’s
argument lacks merit.
To prevail on his ineffective-assistan ce-of-counsel claim, appellant must
demonstrate “(1) that his counsel’s represen tation ‘fell below an objective standard of
reasonableness’; and (2) ‘there is a reas onable probability that, but for counsel’s
unprofessional errors, the result of the pr oceeding would have been different.’” Nissalke
v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v. Washington, 466 U.S. 668,
688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). We address the two prongs “in any order
and may dispose of the claim on one pr ong without analyzing the other.” Schleicher v.
State, 718 N.W.2d 440, 447 (Minn. 2006). As discussed abov e, appellant did not waive
his challenges to the pat-search of his person and the opening of the cigarette pack.
Affirmed.