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This opinion will be unpublished and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
A17-1276

State of Minnesota,
Respondent,

vs.

Trenton John Horn,
Appellant.

Filed June 11, 2018
Reversed and remanded
Larkin, Judge

St. Louis County District Court
File No. 69VI-CR-16-1281

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

Mark S. Rubin, St. Louis County Attorney, Karl G. Sundquist, Assistant County Attorney,
Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Andrew P. Muller, Special Assistant Public Defender, Muller & Muller, PLLC,
Minneapolis, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Peterson, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the district court’s denial of his motion to suppress evidence
obtained during a wa rrantless search of his vehicle . We conclude that the search was
unconstitutional and therefore reverse and remand.
FACTS
Respondent State of Minnesota charged appellant Trenton John Horn with
possession of a controlled substance, driving while impaired (DWI), possession of drug
paraphernalia, and failure to use a seatbelt. Horn requested an omnibus hearing, at which
he challenged the underlying warrantless search of his vehicle. State Trooper Sergeant
Chris Thostenson testified at the hearing , and the state indicated it would file “all the
reports” after the hearing. The district court found the relevant facts to be as follows.1
Sergeant Thostenson observed Horn driving an automobile and stopped him
because he was not wearing a seatbelt. Sergeant Thostenson asked Horn for proof of
insurance. Horn gave Sergeant Thostenson an expired insurance card and did not look for
any other proof of insurance in his vehicle. Sergeant Thostenson thought this behavior was
odd and testified that some people avoid opening areas where insurance cards are normally
kept because they have contraband or weapons in those areas. Sergeant Thostenson
observed that Horn avoided eye contact, appeared excessively nervous, talked very fast,

1 The district court’s findings of fact are not challenged on appeal, and they are supported
by the testimony of Sergeant Thostenson and his DWI arrest report regarding Horn’s arrest.

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and was slow to respond to some questions. Sergeant Thostenson also smelled a faint odor
of marijuana coming from Horn’s vehicle.
Sergeant Thostenson returned to his squad car, printed a ticket for the seatbelt
violation, returned to Horn’s car, and asked Horn to step out of his vehicle. Sergeant
Thostenson noticed that Horn’s front teeth were discolored and decaying. He testified that
such conditions indicated drug use. Sergeant Thostenson explained the seatbelt citation to
Horn, handed Horn the ticket, and asked Horn if he had any questions before the sergeant
let him go. Horn responded, “No.” Sergeant Thostenson then asked Horn if he could take
a quick look in Horn’s vehicle. Horn agreed to the ensuing vehicle search.
During cross-examination, Sergeant Thostenson agreed that after he handed Horn
the seatbelt-violation ticket, Horn was free to go, but that he nonethel ess asked to search
Horn’s car after he gave Horn the ticket. The relevant exchange was as follows:
Q: My question for you is very simple. Once you handed him
the ticket, after you explained, I’m giving you a ticket for
seatbelt violation, you handed him the ticket, he turned, and he
was free to go at that point in time; correct?
A: Yes.
Q: So after you released him on the initial stop for the seatbelt
violation and he was free to go, at that point, then, you asked
him for the first time, can I go and take a look in your vehicle
and search your vehicle?
A: Yes.
Q: After you had released him?
A: Yes.
Q: He was no longer seized at that point, now was he?
A: No.

During the search of Horn’s vehicle, Sergeant Thostenson found a zippered
container, which he recognized as the type of container commonly used for drugs and

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paraphernalia. He opened the container and found a pipe and methamphetamine inside.
Horn admitted that he had used methamphetamine earlier that morning. Horn agreed to
perform field sobriety tests and performed poorly on the tests. Sergeant Thostenson
arrested Horn, obtained a search warrant to test his blood, and the blood sample was
positive for methamphetamine.
At the hearing in district court, Horn argued that Sergeant Thostenson’s
investigation exceeded the scope of the initial traffic stop. He argued that Sergeant
Thostenson’s incremental intrusion of asking to search Horn’s vehicle was unrelated to the
purpose of the stop for failure to wear a seatbelt and that the circumstances did not
otherwise justify the request to search the vehicle. Horn therefore argued that the evidence
obtained as a result of the search should be suppressed. The district court denied Horn’s
motion to suppress, concluding that “the odor of marijuana along with the other factors was
sufficient to justify” the trooper’s request to search the vehicle.
After the district court’s pretrial ruling, t he state dismissed the drug-paraphernalia
and seatbelt charges, and Horn stipulated to the prosecution’s evidence in a court trial to
preserve review of the district court’s ruling , referring to the procedure as a Lothenbach
plea.2 The district court found Horn guilty of DWI and possession of a controlled
substance. The district court stayed adjudication of guilt on the controlled -substance
offense and entered judgment of conviction on the DWI offense.

2 It appears that the parties intended to proceed under Minn. R. Crim. P. 26.01, subd. 4.
See State v. Myhre , 875 N.W.2d 799, 802 (Minn. 2016) (noting that Minn. R. Crim. P.
26.01, subd. 4, “replaced Lothenbach as the method for preserving a dispositive pretrial
issue for appellate review in a criminal case”).

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Horn appeals, challenging the district court’s pretrial ruling regarding the search of
his vehicle.
D E C I S I O N
The United States and Minnesota Constitutions guarantee “[t]he right of the people
to be secure in their persons, houses, papers, and effects” against “unreasonable searches
and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “The touchstone of the
Fourth Amendment is reasonableness.” State v. Johnson, 813 N.W.2d 1, 5 (Minn. 2012)
(quotation omitted). A police officer may initiate a limited, investigative stop without a
warrant if the of ficer has reasonable, articulable suspicion of criminal activity. State v.
Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1 , 88 S. Ct.
1868 (1968)). “[E]ach incremental intrusion during a stop must be strictly tied to and
justified by the circumstances which rendered the initiation of the stop permissible.” State
v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (quoting Terry, 392 U.S. at 19, 88 S. Ct.
at 1878) (quotation marks omitted). “[A]n intrusion not strictly tied to the c ircumstances
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).
“Generally, warrantless searches are per se unreason able.” State v. G auster, 752
N.W.2d 496, 502 (Minn. 2008). “When a search is c onducted pursuant to consent . . . ,
neither probable cause nor a warrant is required.” State v. Pilot , 595 N.W.2d 511, 519
(Minn. 1999). However, a “suspect’s consent, taken alone, is insufficient to permit
expansion of a routine traffic stop; the police officer must have a reasonable , articulable

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suspicion of further criminal activity in order to request to expand the stop.” State v.
Volkman, 675 N.W.2d 337, 341 (Minn. App. 2004).
This court considers “ the totality of the circumstances when determining whether
reasonable suspicion exists, and seemingly innocent factors may weigh into the analysis. ”
State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007). The reasonable-suspicion standard is
“less demanding than probable cause,” but requires more than an unarticulated “hunch.”
State v. Timberlake , 744 N.W.2d 390, 393 (Minn. 2008). This court evaluates whether
reasonable articulable suspicion exists from the perspective of a trained police officer, who
may make “inferences and deductions that might well elude an untrained person.” United
States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981).
Evidence seized in violation of the U.S. or Minnesota Constitutions must be
suppressed. Terry, 392 U.S. at 13, 88 S. Ct. at 1875; State v. Diede, 795 N.W.2d 836, 842
(Minn. 2011). Appellate courts “review de novo a district court’s ruling on constitution al
questions involving searches and seizures.” State v. Anderson , 733 N.W.2d 128, 136
(Minn. 2007). “When reviewing pretrial orders on motions to suppress evidence, [appellate
courts] may 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. Harris ,
590 N.W.2d 90, 98 (Minn. 1999).
Horn contends that any suspicions that might have justified the request to search his
vehicle were dispelled prior to the request. He notes that Sergeant Thostenson “had
completed the initial stop and immediately before asking to search the car, he had
admittedly concluded that Horn was ‘free to go.’” Horn therefore argues that “regardless

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of anything [Sergeant Thostenson] may have observed prior to handing [him] the ticket ,
when he asked to search the car, no reasonable suspicion remained.” Horn concludes that
“because the search of [his] car was invalid, the fruits of the search and all related evidence
must be suppressed.”
We would have a difficult time concluding that Sergeant Thostens on articulated
constitutionally adequate support for his request to search Horn’s vehicle given his
testimony that Horn was free to go before the request. Sergeant Thostenson’s agreement
that Horn was no longer seized when he asked to search Horn’s vehicle significantly
undercuts the state’s argument that the trooper articulated reasonable suspicion of criminal
activity that justified the request to search. In our view, this record does not support a
conclusion that Sergeant Thostenson articulated reasonable suspicion justifying his request
to search Horn’s vehicle . We therefore hold that the search was unconstitutional and
reverse the district court’s order denying Horn’s motion to suppress.
The parties agreed to a stipulated -evidence court trial under Minnesota Rules of
Criminal Procedure 26.01, subdivision 4, which allows a defendant to stipulate to the
prosecution’s case to obtain review of a pretrial ruling. The rule provides, in relevant part,
that “[t]he defendant and the prosecutor must acknowledge that the pretrial issue is
dispositive, or that a trial will be unnecessary if the defendant prevails on appeal.” Minn.
R. Crim. P. 26.01, subd. 4 (c) . Given the parties’ agreement to proceed under rule 26.01,
subdivision 4, our conclusion that Horn prevails on the pretrial issue is dispositive and a
contested trial is unnecessary. We therefore reverse and remand solely for the district court

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to vacate Horn’s judgment of conviction on the DWI offense and his stay of adjudication
on the controlled-substance offense.
Reversed and remanded.