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This opinion will be unpublished and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
A17-1412

State of Minnesota,
Appellant,

vs.

Xavier Richard Jamieson,
Respondent.

Filed March 5, 2018
Reversed and remanded
Larkin, Judge

Sibley County District Court
File No. 72-CR-17-137

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

David E. Schauer, Sibley County Attorney, Donald E. Lannoye, Assistant County
Attorney, Winthrop, Minnesota (for appellant)

Drake D. Metzger, Metzger & Nyberg, LLC, Minneapolis, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Bratvold, 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
LARKIN, Judge
In this pretrial prosecution appeal , the state challenges an order granting
respondent’s motion to suppress drug evidence seized during a pat frisk and dismissing the
resulting fifth-degree controlled-substance charge. We reverse and remand.
FACTS
Appellant State of Minnesota charged respondent Xavier Richard Jamieson with
fifth-degree possession of a controlled substance after a sheriff’s deputy found a small
container of methamphetamine on him during a pat frisk. Jamieson moved to suppress the
evidence, arguing that it was obtained during an unconstitutional warrantless search. The
district court held an evidentiary hearing on the motion, at which the state presented the
testimony of one witness in support of the search.
Deputy Alex Nelson testified that he was part of a team of officers that executed a
search warrant on a residence on April 25, 2017. The warrant was primarily for items
related to controlled -substance crimes. 1 The search warrant authorized the search of the
residence, and not an y particular individual. Deputy Nelson was briefed regarding the
warrant and received information that an assault with a baseball bat had taken place at the
residence.
Deputy Nelson testified that as the execution team approached the residence,
Jamieson w as outside the residence and hurried inside when he noticed the officers

1 The search warrant is not part of the record.
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approaching. Deputy Nelson was concerned because he thought Jamieson might obtain a
weapon or discard evidence.
Deputy Nelson testified that another deputy knocked on the door and clearly
announced that they were executing a search warrant. Jamieson answered the door.
Deputy Nelson testified that he did not see Jamieson with a weapon, and he told Jamieson
that he was not under arrest. However, Deputy Nelson grabbed Jamieson and detained him
to ensure officer safety. When asked if he had any weapons, Jamieson stated he had a
knife. Deputy Nelson removed a knife from Jamieson’s pocket and asked him if he had
“anything else that would harm [Deputy Nelson] .” Jamieson replied that h e had some
hypodermic needles in his pocket. Deputy Nelson recovered the needles and continued to
frisk Jamieson. Deputy Nelson felt a cylindrical object in Jamieson’s coat pocket, which
he believed to be a marijuana grinder. Deputy Nelson asked what th e object was, but
Jamieson did not tell him . Deputy Nelson removed the object from Jamieson’s pocket,
which turned out to be a container with a crystal -like substance inside. Deputy Nelson
recognized the substance as methamphetamine, and the substance fi eld-tested positive for
methamphetamine.
Deputy Nelson testified that he searched Jamieson “initially strictly for officer
safety issues and to establish that he was not armed.” During cross-examination, Deputy
Nelson testified that he placed Jamieson in handcuffs but could not recall whether he did
so before or after searching him.
The district court received written arguments regarding the constitutionality of the
search. Jamieson argued that because the warrant did not identify him as a person to be
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searched and the state did not establish that an exception to the warrant requirement
applied, the evidence obtained during the frisk should be suppressed. The district court
found Deputy Nelson’s testimony to be truthful. However, the district court ruled that “the
continued search of [Jamieson] exceeded the scope of a Terry search and therefore the
evidence seized must be suppressed.” Because the district court suppressed the evidence
on which the charge was based, it dis missed the charge against Jamieson . The state
appeals.
D E C I S I O N
I.
When the state appeals a pretrial suppression order, it “must ‘clearly and
unequivocally’ show both that the [district] court’s order will have a ‘critical impact’ on
the state’s ability to prosecute the defendant successfully and that the order constituted
error.” State v. Scot t, 584 N.W.2d 412, 416 (Minn. 1998) (quoting State v. Zanter , 535
N.W.2d 624, 630 (Minn. 1995)). Critical impact is established if “the lack of the
suppressed evidence significantly reduces the likelihood of a successful prosecution.”
State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). “Dismissal of a complaint satisfies the
critical impact requirement.” State v. Trei , 624 N.W.2d 595, 597 (Minn. App. 2001),
review dismissed (Minn. June 22, 2001).
II.
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
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Fourth Amendment is reasonableness.” State v. Johns on, 813 N.W.2d 1, 5 (Minn. 2012)
(quotation omitted). “Generally, warrantless searches are per se unreasonable.” State v.
Gauster, 752 N.W.2d 496, 502 (Minn. 2008). Evidence seized in violation of the U.S. or
Minnesota Constitutions must be suppressed. Terry v. Ohio, 392 U.S. 1, 13, 88 S. Ct. 1868,
1875 (1968); State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011).
“[Appellate courts] review de novo a dist rict court’s ruling on constitutional
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).
Although Jamieson raised several grounds for dismissal in district court, the district
court’s ruling was expressly limited to one: whether the officers unlawfully expanded the
scope of a Terry frisk. Specifically, the district court ruled, “the continued search of
[Jamieson] exceeded the scope of a Terry search and therefore the evidence seized must be
suppressed.” The district court’s ruling did not address whether there was a lawful basis
to seize Jamieson or to conduct a pat frisk for officer safety. Nonetheless, those issues are
relevant to our dete rmination regarding whether the scope of the search exceeded
constitutional limitations, and the parties have addressed them. In the interest of thorough
review, we therefore consider whether the police acted lawfully i n seizing Jamieson, pat
frisking him, and removing the container from his jacket pocket.
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The Initial Seizure
In Michigan v. Summers , the Supreme Court held that “a warrant to search for
contraband founded on probable cause implicitly carries with it the limited authority to
detain the occupants of the premises while a proper search is conducted.” 452 U.S. 692,
705, 101 S. Ct. 2587, 2595 (1981). This authority is especially important during drug -
related cases due to the strong possibility of flight, violence, or destruction of evidence. Id.
at 702, 101 S. Ct. at 2594.
[T]he execution of a warrant to search for narcotics is the kind
of transaction that may give rise to sudden violence or frantic
efforts to conceal or destroy evidence. The risk of harm to both
the police and the occupants i s minimized if the officers
routinely exercise unquestioned command of the situation.

Id. at 702-03, 101 S. Ct. at 2594 (footnote omitted).

The Court in Summers explained that the following three legitimate law
enforcement interests provide substantial j ustification for detaining an occupant during
execution of a search warrant: “preventing flight in the event that incriminating evidence
is found,” “minimizing the risk of harm to the officers,” and facilitating “the orderly
completion of the search,” as d etainees’ “self -interest may induce them to open locked
doors or locked containers to avoid the use of force.” Id. An officer’s authority to detain
incident to a search is categorical; it does not depend on the “quantum of proof justifying
detention or the extent of the intrusion to be imposed by the seizure.” Id. at 705 n.19, 101
S. Ct. at 2595 n.19. In Bailey v. United States, the Supreme Court noted that “[t]he rule in
Summers extends further than some earlier exceptions [to the probable-cause requirement]
because it does not require law enforcement to have particular suspicion that an individual
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is involved in cri minal activity or poses a specific danger to the officers.” 568 U.S. 186,
193, 133 S. Ct. 1031, 1037-38 (2013).
The Minnesota Supreme Court has recognized, consistent with federal caselaw, that
“ordinarily a search warrant to search for contraband carries with it the limited authority to
detain the occupants of the premises while the search is conducted. ” State v. Wynne, 552
N.W.2d 218, 222 (Minn. 1996) (citing Summers, 452 U.S. at 705, 101 S. Ct. at 2595 -96).
This court applied that principle when assessing the validity of a search of an overnight
guest who was present in a home when a search warrant was executed at the home. State
v. Wasson, 602 N.W.2d 247, 249, 251 (Minn. App. 1999) (“A search warrant that does not
expressly allow a search of persons provides only the limited authority to detain, not search,
unarmed individuals present during the execution of the warrant.”), aff’d on other grounds,
615 N.W.2d 316 (Minn. 2000).
Under the authorities discussed above, Jamieson’s temporary detention in the
residence pending execution of the warrant was constitutionally reasonable because
Jamieson was inside the residence when the police executed a search warrant in a drug -
related case.
The Initial Pat Frisk

A warrantless search is generally unreasonable unless it falls within an exception to
the Fourth Amendment’s warrant requirement. Missouri v. McNeely, 569 U.S. 141, 148,
133 S. Ct. 1552, 1558 (2013). The Supreme Court established one such exception in Terry
v. Ohio, holding that a law-enforcement officer may conduct a protective pat search of the
outer clothing of a person whom the officer has lawfully detained if the officer has a
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reasonable, articulable suspicion that the person may be armed and dangerous. 392 U.S.
at 26-27, 88 S. Ct. at 1882-83.
A pat search must be lawful at its inception, which means that reasonable,
articulable suspicion must exist when the pat search begins. See Terry, 392 U.S. at 21-22,
88 S. Ct. at 1880 (holding that the justification for a search depends on “the facts available
to the officer at the moment of the . . . search”). 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).
“The legality of a pat search depends on an objective examination of the totality of
the circumstances.” State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014). The searching
officer’s motive does not invalidate “objectively justifiable behavior under the Fourth
Amendment,” except in cases involving inventory searches or admin istrative inspections.
Whren v. United States , 517 U.S. 806, 812, 116 S. Ct. 1769 , 1774 (1996). “The actual,
subjective beliefs of the officer are not the focus in evaluating reasonableness.” State v.
Koppi, 798 N.W.2d 358, 363 (Minn. 2011).
A search warrant that does not expressly authorize a search of persons provides only
the limited authority to detain, and not to search, unarmed individuals present during the
execution of the warrant. Wynne, 552 N.W.2d at 222. Thus, a person’s mere presence at
premises being searched would not in itself ordinarily justify a search for weapons. State
v. Gobely, 366 N.W.2d 6 00, 602 (Minn. 1985). However, a Terry pat frisk may occur
during the execution of a search warrant if the reasonable -articulable-suspicion
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requirement is met. See Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S. Ct. 338, 343 (1979)
(applying Terry standard to protective pat frisk that occurred during execution of search
warrant).
Here, Deputy Nelson testified that the search warrant was primarily for items related
to controlled -substance crimes and that he had been informed that a person had been
assaulted with a baseball bat in the residence. Deputy Nelson testified that based on his
training and experience, he knows that people suspected of possessing, selling, or using
drugs often carry weapons and commit crimes that go unreported. Deputy Nelson testified
that he handcuffed and “detain[ed] [Jamieson] to protect the other officers and also for [his
own] safety” and that he believed it was appropriate to pat frisk Jamieson “initially strictly
for officer safety issues and to establish that he was not armed.”
Although the record does not describe the type of controlled-substance crimes that
prompted the warrant , the alleged assault , or Jamieson’s role in those offenses, the
circumstances nonetheless objectively justified the limited intrusion occasioned by a pat
frisk for officer safety. Deputy Nelson’s belief that a person had been a ssaulted in the
residence with a baseball bat, combined with the suspected presence of items related to
controlled-substance crimes, provided a reasonable basis to suspect that Jamieson could be
armed and dangerous. We recognize that Jamieson may have been handcuffed during the
pat frisk. But the Minnesota Supreme Court has held that handcuffing suspects briefly
until the police can determine whether they are armed is a reasonable step to allow officers
to safely conduct an investigation. State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999).
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We therefore conclude that the pat search was reasonable at its inception, even if Jamieson
was handcuffed during the search.
The Scope of the Pat Frisk
We now turn to the stated basis for the district court’s suppression order: “the
continued search of [Jamieson] exceeded the scope of a Terry search.” Jamieson argues
that it was “impermissible for Deputy Nelson to remove the container from [his] coat
pocket.”
A protective pat frisk “must be strictly ‘limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby.’”
Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2136 (1993) (quoting Terry,
392 U.S. at 26, 88 S. Ct. at 1882 ). However, an officer is entitled to seize contraband,
including drug paraphernalia, found during a pat frisk if the incriminating character of the
contraband is immediately apparent to the officer. Id. at 375 -76, 113 S. Ct. at 2137.
Jamieson argues that “it was not immediately apparent to Deputy Nelson that the container
was contraband.”
The phrase “immediately apparent” does not mean that an officer must be certain
about the object’s identity. In fact, the Supr eme Court has stated that “‘immediately
apparent’ was very likely an unhappy choice of words, since it can be taken to imply that
an unduly high degree of certainty as to the incriminatory character of evidence is
necessary.” Texas v. Brown , 460 U.S. 730, 741, 103 S. Ct. 1535, 1543 (1983) (plurality
decision). The Supreme Court explained that a seizure based on an object’s immediately
apparent criminal character is “ presumptively reasonable, assuming that there is probable
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cause to associate the property with criminal activity .” Id. at 738, 103 S. Ct. at 15 41
(quotation omitted). Probable cause requires an honest and strong suspicion. See State v.
Skoog, 351 N.W.2d 380, 381 (Minn. App. 1984) (concluding seizure of a snow blower was
supported by probable cause to believe it was stolen property). We therefore consider
whether Deputy Nelson had an honest and strong suspicion that the item he felt during the
pat search was associated with criminal activity.
Deputy Nelson’s testimony demonstrates that it was “immediately apparent” to him
that the object in Jamieson’s pocket was contraband. He testified that he “felt a cylindrical
object [that], based on [his] experience and training, [he] believed to be a marijuana
grinder.” Although he did not testify that he was certain the object was a marijuana grinder,
the “immediately apparent” standard does not require absolute certainty. Brown, 460 U.S.
at 742, 103 S. Ct. at 1543.
The district court “accept[ed] as evidence the truthful testi mony of Deputy Alex
Nelson as to the events leading up to the search and arrest of [Jamieson]” and found that
Deputy Nelson believed that “the cylindrical object that he felt while pressing the outside
of [ Jamieson’s] jacket was . . . a marijuana grinder.” We defer to t his credibility
determination. See State v. Miranda, 622 N.W.2d 353, 358 (Minn. App. 2001) (“Weighing
the credibility of the witnesses is the exclusive province of the factfinder. This court defers
to the district court’s ability to judge the credibility of witnesses.” (citation omitted) ).
Because the incriminating character of the object was immediately apparent to Deputy
Nelson, his removal of the object from Jamieson’s pocket was permissible.
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Conclusion
Based on our independent review o f the facts, we reach th ree conclusions. First,
there was a lawful basis to temporarily seize Jamieson based on his presence in the
residence during execution of a search warrant for items related to controlled -substance
crimes. Second, there was a lawful basis to pat frisk Jamieson for officer safety based on
the reported assault within the residence and the suspected presence of items related to
controlled-substance crimes. And third, Deputy Nelson did not exceed the permissible
scope of the pat frisk by removing the cylindrical object from Jamieson’s pocket during
the search. We therefore reverse and remand for further proceedings consistent with this
opinion without addressing the state’s alterna tive argument that the search was a valid
search incident to arrest.
Reversed and remanded.