State of Minnesota, 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This opinion will be unpublished and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
A17-1296

State of Minnesota,
Appellant,

vs.

Ryan Ervin Salo,
Respondent.

Filed January 30, 2018
Affirmed
Peterson, Judge

Clay County District Court
File No. 14-CR-17-885

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

Brian J. Melton, Clay County Attorney, Michael D. Leeser, Assistant County Attorney,
Moorhead, Minnesota (for appellant)

Stormy Vickers, Fargo, North Dakota (for respondent)

Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this prosecution pretrial appeal, the state argues that the district court erred when
it found that a police officer did not have reasonable, articulable suspicion to expand the
scope of a traffic stop. We affirm.

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FACTS
On March 16, 2017, Moorhead Police Officer Brandon Desautel was walking back
to his squad car after finishing a call when a sport -utility vehicle (SUV) went by, and he
saw that the front-seat passenger was not wearing a seatbelt. Desautel followed the SUV,
and, before he activated his squad car’s emergency lights, the SUV pulled over and legally
parked on the side of the street.
Desautel pulled in behind the SUV , and, just as Desautel activated the emergency
lights, the front-seat passenger opened the door and got out of the SUV. Desautel testified
that the passenger exited “quickly” and that this conduct was alarming because “[u]sually
they’re trying to get away from the stop because som ething is wrong or not law abiding
with it or they are trying to get out and harm the officer.”
Desautel instructed t he passeng er to get back into the SUV, and the passenger
complied with the instruction. Desautel approached the passenger side of the SUV and
stated that he had stopped it because the passenger was not wearing a seatbelt. The
passenger identified himself as respondent Ryan Ervin Salo . Desautel testified at the
omnibus hearing that he recognized Salo from previous dealings. Desautel returned to his
squad car and ran Salo’s name for “wants and warrants ,” but there were none. Desautel
testified that he “believe[d] there was a caution for narcotics.” Backup officers arrived,
and Desautel told them that Salo was in the SUV and that he had not yet decided whether
to search the vehicle.
When Desautel returned to the SUV, Salo had lit a cigarette and taken off his jacket.
Desautel testified that this conduct was concerning to him because , when people who

3
smoke get nervous, “they tend to light up the cigarette very quickly” and because removing
a jacket can indicate that a person is about to run or that the jacket contains something that
the person wants to keep hidden. Desautel had Salo get out of the SUV and questioned
him. Desautel asked Salo whether he was on probation and when he had last used narcotics.
Salo stated that he was on probation and had not used narcotics since he had last been put
in jail.
Desautel then spoke with the driver. The driver told Desautel that Salo had removed
a pack of cigarettes from his pocket and placed them in the center console. Desautel
reached into the SUV, removed the pack of cigarettes from the center console, and found
a small amount of methamphetamine in it.
The state charged Sal o with fifth -degree controlled-substance crime (possession),
and Salo moved to suppress all evidence obtained as a result of the vehicle sear ch.
Following a hearing on the motion, t he district court concluded that Desautel violated
Salo’s Fourth Amendment rights by unreasonably expanding the scope of the traffic stop
and subjecting him to an unconstitutional search of his person and possessions. The court
explained:
[Salo’s] act of exiting the vehicle and Officer Desautel’s
activation of his emergency lig hts occurred almost
simultaneously. Although Officer Desautel claims that
[Salo’s] act “raised alarms,” the court finds it to be reasonable
that [Salo] might exit the already parked vehicle for r easons
other than the fact that Officer Desautel was attempt ing to
effect a traffic stop. In any case, [Salo’s] act of exiting the
vehicle can be objectively described as minimally suspicious,
at best. Upon approaching the vehicle, [Salo] cooperated with
Officer Desautel’s request for him to re-enter the vehicle. . . .

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. . . [U]pon returning to his squad car, Officer Desautel
was already considering whether he should search the vehicle.
This fact is illustrated in the comment he made to one of the
back-up officers about searching the vehicle. However , the
only information that Officer Desautel was acting upon i n
weighing this option was the fact that he recognized [Salo]
from prior encounters and that [Salo] had a “narcotics
warning” in the Moorhead Police Department computer
system. In his testimony, Officer Desautel did not identify any
other objective circumstances which might lead him to believe
that he would be justified in searching [Salo] and the vehicle
for controlled substances without a valid warrant. Thus, the
court finds that any suspic ions of drug -related activity that
Officer Desautel had at this point were unreasonable and
amounted to nothing more than a mere hunch.

Upon returning to the vehicle, Officer Desautel failed to
make any mention of the seatbelt violation before asking [Salo]
to step out of the vehicle. He then immediately proceeded to
question [Salo] about hi s probation and/or parole statu s. He
asked [Salo] about his narcotic use and [Salo] denied having
recently used. . . . The court finds that through this line of
questioning, Off icer Desautel had expanded the scope of the
traffic stop beyond the seatbelt violation. . . .

. . . .

. . . Officer Desautel was operating on nothing more
than an unreasonable hunch when he expanded the scope of the
traffic stop by abruptly asking [Salo] to step out of the vehicle
and proceed[ing] to question him about his possible use of
narcotics.

The district court determined that the methamphetamine must be suppressed under
the fruit-of-the-poisonous-tree doctrine and dismissed the case. This pretrial appeal by the
state followed.

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D E C I S I O N
“[An appellate] court will, in a pretrial appeal , reverse the determination of the
[district] court only if the state demonstrates clearly and unequivocally, first, that the
[district] court erred in its judgment and, second, that unless reversed, the error will have a
critical impact on the outcome of the trial.” State v. Joon Kyu Kim, 398 N.W.2d 544, 547
(Minn. 1987). If the district court erred in suppressing the methamphetamine, the error
will have a critical impact on the outcome of the trial because the methamphetamine is
necessary evidence to pr ove the charge against Salo. State v. Kromah, 657 N.W.2d 564,
566 (Minn. 2003). Consequently, the issue before us is whether the district court erred in
its judgment that the methamphetamine must be suppressed because Desautel was
operating on nothing more than an unreasonable hunch when he expanded the traffic stop
by asking Salo to step out of the SUV.
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
[an appellate court] review[s] the district court’s factual findings under a clearly erroneous
standard and the district court’s legal determinations de novo.” State v. Gauster , 752
N.W.2d 496, 502 (Minn. 2008) (quotation omitted). The existence of a reasonable
suspicion to support a limited investigatory stop is a question of law, which is reviewed de
novo. State v. Lugo, 887 N.W.2d 476, 484, 487 (Minn. 2016).
In Minnesota, the principles and framework of Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868 (1968), apply when evaluating the reasonableness of traffic stops even when a minor
law has been violated. State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004). “A Terry
analysis involves a dual inquiry. First, we ask whether the stop was justified at its

6
inception. Second, we ask whether the actions of the police during the stop were
reasonably related to and justified by the circumstances that gave rise to the stop in the first
place.” Id. at 364 (citations omitted). Salo does not challenge the initial stop of the vehicle.
The second Terry prong constrai ns the scope and
methods of a search or seizure. An initially valid stop may
become invalid if it becomes intolerable in its intensity or
scope. Thus, each incremental intrusion during a stop must be
strictly tied to and justified by the circumstances wh ich
rendered the initiation of the stop permissible. An intrusion not
closely related to the initial justification for the search or
seizure is invalid under article I, section 10 [of the Minnesota
Constitution] unless there is independent probable cause or
reasonableness to justify that particular intrusion.

Id. (citations and quotations omitted).
In essence, Article I, Section 10 of the Minnesota Constitution
requires that each incremental intrusion during a traffic stop 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. Furthermore, the
basis for the intrusion must be individualized to the person
toward whom the intrusion is directed.

Id. at 365. “To be reasonable, the basis must satisfy an objective test: ‘would the facts
available to the officer at the moment of the seizure . . . warrant a man of reasonable caution
in the belief that the action taken was appropriate.’” Id. at 364 (quoting Terry, 392 U.S. at
21–22, 88 S. Ct. 1868, 1880).
The state argues that the district court erred in concluding that Desautel’s
“suspicions of drug-related activity . . . were unreasonable and amounted to nothing more
than a mere hunch.” A trained police officer may draw inferences and make deductions
based on “all of the circumstances . . . that might well elude an untrained person.” State v.

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Johnson, 444 N.W.2d 824, 826 (Minn. 1989) (quotation omitted). Also, “‘innocent’ factors
in their totality, combined with the investigating officer’s experience in apprehending drug
traffickers, can be sufficient bases for finding reasonable suspicion.” State v. Martinson,
581 N.W.2d 846, 852 (Minn. 1998) (citing Reid v. Georgia, 448 U.S. 438, 441, 100 S. Ct.
2752, 2754 (1980)).
While activating his emergency lights, Desautel saw Salo quickly get out of the
SUV. Desautel testified that when someone opens a car door and gets out right away, the
person is often trying to get away because something is wrong or something unlawful is
occurring or, possibly, the person is trying to harm the officer. The state argues that the
district court failed to recognize or consider Desautel’s testimony and that innocent factors,
in their totality, combined with the officer’s experience, can be a sufficient basis for finding
reasonable suspicion. But, as the district court found, Salo cooperated with Desautel’s
request to get back into the SUV and remained in the SUV until Desautel returned from his
squad car. Thus, the totality of the innocent factors dispelled any reason to believe that
Salo was trying to get away or harm Desautel.
The state also argues that the district court failed to consider that Desautel
recognized Salo from prior contacts and received a “narcotics warning” when he ran Salo’s
name on the Moorhead police department’s computer system . But t he district court
specifically found that, when Desautel returned to his squad car, he was considering
whether to search the SUV, and the only information tha t Desautel “was acting upon in
weighing this option was the fact that he recognized [Salo] from prior encounters and that
[Salo] had a ‘narcot ics warning’ in the Moorhead Police Department computer system.”

8
There was not any evidence that described the nature of Desautel’s prior encounters with
Salo, however, and the state has not explained how those encounters support a
determination that it was reasonable to expand the scope of the traffic stop . Nor has the
state explained how the “narcotics warning” supports a determination that Salo was
engaged in any drug-related activity during the traffic stop.
Before Desautel asked Salo to get out of the SUV, he saw that Salo had removed
his jacket and was smoking a cigarette. The state argues that the district cou rt did not
consider Desautel’s testimony that someone who removes a jacket during a traffic stop is
often trying to conceal something or preparing to flee. But this testimony is a statement
about people in general, rather than an individualized statement about Salo or the
circumstances of the traffic stop , and it was not a reasonable basis to conclude that Salo
was hiding something or preparing to flee.
The evidence presented at the suppression hearing showed that, when Desautel
asked Salo to get out of the SUV , Desautel knew that Salo (1) had not been wearing his
seat belt, (2) got out of the SUV but returned when told to do so, (3) identified himself,
(4) had encountered Desautel in the past, (5) had a “narcotics warning” in the Moorhead
police computer system, (6) removed his jacket, and (7) was smoking a cigarette.
Desautel’s testimony provided possible explanations why a suspect would leave a vehicle,
remove his jacket, and smoke a cigarette, but his testimony did not provide any objec tive
basis for concluding that any of these possible explanations applied specifically to Salo.
Considered in their entirety, these facts would not cause a person of reasonable caution to

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conclude that, when Desautel returned to the SUV, it was appropriate to expand the scope
of the traffic stop to investigate drug-related activity.
The state also argues that Salo ’s constitutional rights were not infringed because
Salo had a reduced privacy expectation due to his supervised -release status. Both
probationers and parolees have reduced expectations of privacy. State v. Heaton , 812
N.W.2d 904, 90 7-08 (Minn. App. 2012) , review denied (Minn. July 17, 2012) . Because
parole is more like prison tha n probation, parolees have an even lower expectation of
privacy than probationers.1 Id. The state argues that it was irrelevant that Desautel did not
know the difference between supervised release and probation because the important factor
is that Salo had a reduced expectation of privacy due to his supervised -release status. We
agree that Salo had a reduced expectation of privacy, and it is not significant that Desautel
was not aware that Salo was on supe rvised release, rather than probation. But Salo’s
reduced expectation did not allow Desautel to search Salo.
The conditions of Salo’s release required him to “submit to any unannounced visits
and/or search of [his] person, residence, possessions, cell phone, vehicle or premises by the
agent/designee.” The state argues that Desautel was a designee of Salo’s supervising agent
because the agent testified that he had informed the Clay County Sheriff’s Department that
Salo was in Moorhead and that he was concerned that Salo was selling and using narcotics.
The agent also testified that he “heavily” relies on the police to assist him in supervi sing

1 Heaton is distinguishable from this case because it involved a warrantless search of the
parolee’s home, which the parolee had consented to as a term of his parole. 812 N.W.2d
at 908.

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parolees. The entire knowledge of the police force is pooled and imputed to an arresting
officer. State v. Riley , 568 N.W.2d 518, 523 (Minn. 1997). But the district court
specifically found that the agent “testified that he did not direct any search of [Salo] on that
day. In fact, Officer Desautel never even attempted to contact [the agent] to receive
authorization to sear ch [Salo].” Under the express terms of his supervised release, Salo
was not required to submit to a search during the traffic stop.
Finally, the state argues that the district court e rred by failing to find that Sal o had
no reasonable expectation of privacy in the vehicle where the methamphetamine was
found. But, as the district court found, when the vehicle was searched, Desaut el had
already unreasonably expanded the scope of the traffic stop, and the methamphetamine was
the fruit of this unreasonable expansion.
Before evidence discovered by exploiting previous illegal conduct may be admitted,
the state must show that the evid ence was obtained by means
sufficiently distinguishable to be purged of the primary taint.
Minnesota appellate courts examine several factors to
determine whether evidence is fruit of the poisonous tree. The
factors considered are (1) the purpose and fla grancy of the
misconduct; (2) the presence of intervening circumstances;
(3) whether it is likely that the evidence would have been
obtained in the absence of the illegality; and (4) the temporal
proximity of the illegality and the evidence alleged to be t he
fruit of the illegality. No one factor is dispositive; rather,
courts must balance all of these factors.

State v. Olson, 634 N.W.2d 224, 229 (Minn. App. 2001) (citations and quotation omitted),
review denied (Minn. Dec. 11, 2001).
The methamphetamine was found almost immediately after Desautel began
questioning Salo about his narcotics use and probation status ; there were no intervening

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circumstances. If Desautel had not unreasonably expanded the scope of the traffic stop,
the methamphetamine would n ot have been discovered. The methamphetamine was
discovered by exploiting the unreasonable expansion of the traffic stop.
Affirmed.