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This opinion will be unpublished and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
A17-0537

State of Minnesota,
Respondent,

vs.

Michael Raymond Burke,
Appellant.

Filed February 5, 2018
Affirmed
Reyes, Judge

St. Louis County District Court
File No. 69VI-CR-15-1124

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

Mark S. Rubin, St. Louis County Attorney, Bonnie A. Thayer, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Melissa Sheridan, Special Assistant Public Defender, Eagan, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Halbrooks, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from a contested omnibus hearing, appellant argues that the district court
erred in denying his motion to suppress drug evidence. We affirm.

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FACTS
On July 16, 2017, an officer with the East Range Police Department pulled over a
vehicle for turning without a signal. After stopping the vehicle, the officer approached the
driver’s side and identified the driver as appellant Michael Burke and the passenger as C.H.
As the officer talked to appellant through the rolled-down window, he could detect
a strong odor of marijuana coming from the vehicle but could not identify the exact source.
He returned to his squad car, ran appellant ’s license, and called for backup. After
confirming that appellant’s license was valid, the officer approached the vehicle to discuss
the odor of marijuana.
When confronted about the marijuana odor, appellant started to show clear signs of
nervousness, including hand tremors and dry mouth. The officer continued questioning
appellant, who eventually handed a baggie of marijuana over to him. The officer asked
whether appellant had anything else in his possession, and appellant replied that he had
knives, a marijuana pipe, and other items on hi s person. The officer then asked appellant
to step out of the vehicle a nd conducted a pat-search. He found several pouches inside
appellant’s jacket pockets. One contained the marijuana pipe. Another pouch contained a
baggie, and although the officer did not look closely, he could see a white powdery
substance inside it. The officer also found another baggie in the eye pocket of appellant’s
jeans, where he found trace ev idence of what he suspected to be methamphetamine. The
officer handcuffed appellant and sat him on the curb. The officer field-tested and
confirmed that the substances found in the two baggies was methamphetamine. He arrested
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and transported appellant and C.H., who was also in possession of methamphetamine, to
the East Range Police Department.
The state charged appellant with one coun t of fifth-degree controlled-substance
crime in violation of Minn. St at. § 152.025, subd. 2(a)(1). Appellant filed a motion to
suppress the methamphetamine in a conteste d omnibus hearing, arguing that the police
conducted an illegal search. After the district court denied appellant’s motion, he waived
his right to a jury trial and stipulated to the prosecutor’s case to preserve the pretrial issues
for appellate review pursuant to Minn. R. Crim. P. 26.01, subd. 4. The district court found
appellant guilty as charged and sentenced him to a stayed term of one year and one day.
This appeal follows.
D E C I S I O N
I. The district court did not err when it denied appellant’s motion to suppress the
methamphetamine because the officer did not improperly expand the scope of
the stop.

Appellate courts review de novo whether law enforcement possessed reasonable
suspicion to justify a search. State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005). We
independently review the facts and determine, as a matter of law, whether the district court
erred in denying appellant’s motion to suppress. State v. Harris, 590 N.W.2d 90, 98 (Minn.
1999). We review the district court’s factua l findings for clear error, but when the facts
are undisputed, our review is entirely de novo. Burbach, 706 N.W.2d at 487.

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A. The officer’s investigation of the ma rijuana odor was not an unlawful
expansion of the scope of the traffic stop.

Appellant argues that the o fficer impermissibly expanded the scope of the traffic
stop when he investigated the marijuana odor.1 We disagree.
Both the United States a nd Minnesota Constitu tions protect individuals against
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, §10. “A
search conducted without a warrant issued upon probable cause is generally unreasonable.”
State v. Flowers, 734 N.W. 2d 239, 248 (Minn. 2007). In some instances, however, a police
officer may conduct an investigatory Terry stop without a warrant when the officer has
reasonable suspicion that a person is engaged in criminal activity. Terry v. Ohio, 392 U.S.
1, 30, 88 S. Ct. 1868, 1884 (1968). Reason able suspicion must be “based on specific,
articulable facts” that allow the officer to “be able to articulate at the omnibus hearing that
he or she had a particularized and objectiv e basis for suspecting the seized person of
criminal activity.” State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) . The reasonable-
suspicion standard is not high, State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011), and “an
actual violation is not necessary.” State v. Haataja , 611 N.W.2d 353, 354 (Minn. App.
2000), review denied (Minn. July 25, 2000). However, a stop that is the product of “mere

1 Appellant asserts that the pat-frisk search of his person was also an error. However, he
did not address this error in his briefing and failed to provid e legal arguments to support
this assertion. Where an appellant asserts an error, but fails to address the error in his
appellate brief, the issue is deemed waived. State v. Butcher, 563 N.W. 2d 776, 780 (Minn.
1997). See also Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987). Therefore, we decline
to review the district court’s determination that the pat-frisk search of appellant was valid
under the search-incident-to-arrest exception.
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whim, caprice or idle curiosity” is impermissible. State v. Pike, 551 N.W.2d 919, 921-22
(Minn. 1996).
The Terry principles provide justification for traffic stops even when a minor law
has been violated. State v. Askerooth, 681 N.W.2d 353, 362-63 (Minn. 2004). However,
once the original reasonable suspicion that justified the traffic stop has been dispelled, the
officer may not continue to detain a person unless the officer has additional reasonable
suspicion of criminal activity. State v. Doren, 654 N.W.2d 137, 141 (Minn. App. 2002),
review denied (Minn. Feb. 26, 2003). Thus, every incremental intrusion during a traffic
stop must be strictly tied to and justified by one of the following: (1) the original legitimate
purpose of the stop; (2) independent probable cause; or (3) reasonable suspicion, as defined
in Terry. Askerooth, 681 N.W.2d at 365. Reasonable, articulable suspicion exists “when
an officer observes unusual conduct that lead s the officer to reasonably conclude in light
of his or her experience that criminal activity may be afoot.” In re Welfare of G.M. , 560
N.W.2d 687, 691 (Minn. 1997).
Here, the officer smelled marijuana and, based on his experience, he thought
appellant may have been in possession of a criminal amount of marijuana. This reasonable
suspicion satisfies the requirements of Terry.
Appellant argues that the odor of mar ijuana alone cannot guarantee appellant’s
possession of criminal amount of marijuana, or that he was in possession of any marijuana
at all. This argument lacks merit. An ac tual violation or the honest, strong suspicion
required for probable cause is not nece ssary to have a lawful investigatory Terry stop,
which merely requires a reasonable suspicion that criminal activity is afoot. Id.
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II. Appellant’s pro se claims lack merit.
In his pro se brief, appellant appears to challenge the officer’s credibility by arguing
that the street where the officer was patrolling would not have allowed him to see appellant
turning without a signal and th at the officer could not have smelled marijuana because it
was tightly wrapped in his pockets. We are not persuaded.
On appeal, pro se claims that are unsupport ed by either arguments or citations to
legal authority are deemed waived. State v. Bartylla , 755 N.W.2d 8, 22 (Minn. 2008).
Appellant thus waives his pro se arguments because he does neither. See id.
However, even if we were to review appe llant’s claims, they are not meritorious.
The credibility of a witness is a question for the finder of fact. State v. Dickerson , 481
N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993). We will
reverse the district court’s factual findings when they are clearly erroneous. Burbach, 706
N.W.2d at 487. A finding of fact is clearly erroneous if, after careful review of the record,
we “reach[] the firm conviction that a mistake was made.” State v. Kvam , 336 N.W.2d
525, 529 (Minn. 1983). Here, nothing in the record indicates that the district court made a
mistake in assessing the credibility of the officer. Therefore, we defer to the district court’s
findings of fact.
Affirmed.