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This opinion will be unpublished and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
A17-1415

State of Minnesota,
Respondent,

vs.

Jeremia Michael Roberts,
Appellant.

Filed August 6, 2018
Reversed in part and remanded
Rodenberg, Judge

Rice County District Court
File No. 66-CR-16-2531

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

John Fossum, Rice County At torney, Terence Swihart, A ssistant County Attorney,
Faribault, Minnesota (for respondent)

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

Haley L. Waller Pitts, Fredri ckson & Byron, P.A., Special Assistant Public Defender,
Minneapolis, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Florey, Judge.

2
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant challenges the district court’ s denial of his motion to suppress the
evidence seized from the van he was driving and, derivatively, argues that the admissible
evidence is insufficient to su pport his unlawful-possession-of-a-firearm conviction. We
reverse in part and remand.
FACTS
Appellant Jeremia Michael Roberts was arrested for providing a false name to police
after a police chief responded to a report of a suspicious van. After the chief located and
stopped the van, a shotgun was found in the van, and appellant was charged with unlawful
possession of that firearm. Appellant moved to suppress evidence of the firearm, arguing
that the evidence resulted from an illegal search of the van.
At a contested omnibus hearing, the chief testified that, at 11:30 a.m. on October 28,
2016, he received a report of a suspicious van parked in a field. The chief knew that the
field “is commonly where people park to drink, [and] dispose of stolen property.” When
the chief approached the area, the van began to move away. Appellant was driving. The
chief knew the owners of the van and knew that they had no sons, so he found it suspicious
that a male was driving the van. The chief initiated a traffic stop, and asked for appellant’s
driver’s license and insurance information. Appellant said that he did not have a valid
license, and wrote down a name and date of birth for Z.F.R. The chief requested that
dispatch check the driver’s-li cense status corresponding to that name. Dispatch reported
that Z.F.R. had a valid license.

3
The chief testified that, because the van had dark tinted windows, he did not initially
observe anyone else in the van. But a woman appeared from under a blanket in the center
of the van and began looking fo r proof of insurance. The wo man told the chief that four
people were in the van. The chief believed people were hiding under the blankets, so he
made all four occupants get out of the van. The chief then requested backup.
The chief testified that he recognized th e female passenger as the daughter of the
van’s owners. He attempted to identify the two males who had been in the back of the van.
One of the male passengers th en took off running. The ch ief then handcuffed appellant
and placed him on the ground in the grassy ditch area “for safety.” The chief testified that
he was outnumbered and he “stil l did not know for sure who [he] had because the driver
indicated that he was not valid. However, the name he [provided] came back as valid.”
The female sat on the ground, and the chief pl aced the remaining male passenger in the
squad car. The chief testified that the female could have accessed the van during this time,
but she neither did so nor made any attempt to do so.
When another officer arrived, the chief un dertook what he described as “a full-on
search” of appellant, including a search of his pockets. A wallet was removed from
appellant’s pocket. It contai ned a birth certificate for Jere mia Roberts, whom appellant
identified as his brother. The chief was eventu ally able to identify appellant as Jeremia
Roberts after he consulted computer records from his squad car. After appellant had been
searched, the assisting officer began searching the van.
The assisting officer testified at the omni bus hearing that he had responded to a
request for assistance on a suspicious-vehicle call. He was informed that someone had fled

4
from the vehicle. Upon arriving, this officer spoke to the chief who “told [the officer] what
he had thus far, who the driv er was, what had happened.” 1 The chief “told [the officer]
one had fled from the scene. Ac knowledged the rest he had here at the scene, the three.”
The assisting officer testified that, after aiding in the search of appellant, he walked around
the van and could see into it by looking th rough the glass. Despite the passenger-side
sliding door being open, the officer opened the driver-side sliding door and saw blankets
and pillows in the back of the van. The assisting offi cer moved a blanket in the van and
found a shotgun. He testified that he mo ved the blanket because “the scene was quite
chaotic” and “when [he] got there, [the chief] said he had people running from the van or
a person. [The officer] didn’t know if there were other people hiding in the van, other
possible runaways, and for safety reasons.” He testified that the female passenger told him
the gun belonged to appellant. He acknowledged that the sequence of events was: “arrive
on scene, find all the people are out of the ve hicle, pat down [appellant], walk over, open
the door, search the vehicle.”
Appellant argued to the district court that the assisting officer’s warrantless search
of the van did not fall under any exception to the warrant requirement. The state argued
that the officer performed a constitutional “pro tective sweep” of the vehicle, based on a
reasonable suspicion that other people could be hiding in the van. The district court denied
appellant’s suppression motion.

1 The inconsistency between this testimony and the timing of the chief ascertaining
appellant’s true identity is unresolved by the record.

5
The district court concluded that the sear ch of the van was a legitimate protective
sweep, because the female had access to the va n when she was outside of it, and because
the chief did not personally check the van to determine if anyo ne else remained hiding in
it. Appellant moved the district court to reconsider its decision, arguing the protective-
sweep exception to the warrant requirement is limited to a “cursory visual inspection of
those places in which a person might be hiding” and must be incident to an arrest.
Appellant argued he was not under arrest at the time of the search and the assisting officer
did not reasonably suspect someone was hiding in the van. The district court declined to
reconsider.
The case was tried to a jury. At trial, S.D., the female passenger, testified that she
had been using her parents’ van with their pe rmission. She testified that on the “night
before . . . we were pulled over, the boys were out carjacking. And [appellant] had put the
shotgun in the car from someone’s garage. So that is how it got in the car.” The chief and
the assisting officer also testified, and th e squad-car video from the chief’s vehicle was
admitted into evidence and played for the jury. The squad-car video lasts 43 minutes and
clearly depicts the chief’s stop of and approach to the vehicle, the exit of all persons from
the vehicle, the flight of one of the males from the scene, th e search of appellant, and the
search of the vehicle. The jury found appellant guilty of both unlawfully possessing a
firearm and providing false information to law enforcement.
This appeal followed.2

2 Appellant does not challenge his convicti on for providing false information to law
enforcement, and we do not review it on appeal.

6
D E C I S I O N
Appellant argues that the district court e rred in concluding that police were entitled
to search the van of which he had been the driver as part of a protective sweep, because the
officer did not have reasonable suspicion to search the vehicle and appellant was not under
arrest at the time of the search. He also challenges the sufficien cy of the evidence
supporting a conviction.
We first consider whether the assisting o fficer’s search of the van fell within an
exception to the warrant requirement. 3 “[W]hen reviewing a pr e-trial order suppressing
evidence where the facts are not in dispute and the trial cour t’s decision is a question of
law, the reviewing court may independently review the facts and determine, as a matter of
law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221
(Minn. 1992). Where the facts are in dispute, an appellate court reviews the district court’s
findings for clear error and its legal determinations de novo. State v. Ortega, 770 N.W.2d
145, 149 (Minn. 2009).

3 Under the Fourth Amendment, a defendant challenging a search of a vehicle must have a
possessory interest in the vehicle or the property seized, or must demonstrate an actual and
reasonable expectation of priv acy in the place searched. Rakas v. Illinois, 439 U.S. 128,
148-49, 99 S. Ct. 421, 433 (1978); In re Welfare of B.R.K., 658 N.W.2d 565, 571 (Minn.
2003); State v. Ortega , 749 N.W.2d 851, 853 (Minn. App. 2008) (declining to address
whether a passenger had a reason able expectation of privacy in a car because it is not a
jurisdictional question and the state did not c ontend that the defendant lacked such an
expectation), aff’d, 770 N.W.2d 145 (Minn. 2009). Appe llant did not specifically allege
either that he had a reasonable expectation of privacy in the vehicle owned by S.D.’s
parents, or that he had a possessory interest in the property seized. However, the state did
not, at the district court, challenge appe llant’s ability to in voke Fourth Amendment
protections concerning the search of th e van, and, on appeal , makes no argument
concerning this issue. Ther efore, we do not address whet her appellant had a reasonable
expectation of privacy in the center area of the van.

7
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. 1, § 10. Evidence seized in violation
of the United States 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).
A search or seizure that is conducted withou t a warrant is presumptively unreasonable.
State v. Lugo, 887 N.W.2d 476, 486 (Minn. 2016). Exceptions to the warrant requirement
“are based on particular exigenci es of a situation and must be ‘jealously and carefully
drawn.’” State v. Robb , 605 N.W.2d 96, 100 (Minn. 2000) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032 (1971)). The burden is on the state to
demonstrate an exception to the warrant requirement. Id.
The state argues that Maryland v. Buie, 494 U.S. 325, 330, 110 S. Ct. 1093, 1096
(1990), and State v. Bergerson, 671 N.W.2d 197, 203 (Minn. App. 2003), review denied
(Minn. Jan. 20, 2004), justify the search of the van in this case.
In Buie, the Supreme Court considered the permissibility and limits of a protective
sweep. 494 U.S. at 330, 110 S. Ct. at 1096. The Supreme Court began its analysis by
stating that police with an arrest warrant and probable cause to believe the person covered
by the arrest warrant is in a home have author ity to search for the person in any room in
the house. Id. at 332-33, 110 S. Ct. at 1097. Once the person subject to the arrest warrant
is found, the ability of law enforcement officers to enter other rooms is limited. Id. at 333,
110 S. Ct. at 2097. At the time the person s ubject to the warrant is found, “the arresting
officers are permitted . . . to take reasonable st eps to ensure their sa fety after, and while

8
making the arrest.” Id. at 334, 110 S. Ct. at 1098. Those “reasona ble steps” include “a
quick and limited search of premises, incident to an arrest and co nducted to protect the
safety of police officers or others. It is narrowly confined to a cursory visual inspection of
those places in which a person might be hiding.” Id. at 327, 110 S. Ct. at 1094.
An officer, therefore, is permitted to “look in closets and other spaces immediately
adjoining the place of arrest from which an attack could be immediately launched” without
requiring probable cause or reasonable suspicion to do so. Id. at 334, 110 S. Ct. at 1098.
Beyond those spaces, “there mu st be articulable facts whic h, taken together with the
rational inferences from those facts, woul d warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger to those on the
arrest scene.” Id. Such a protective sw eep “may extend only to a cursory inspection of
those spaces where a person may be found” and “lasts no longer than is necessary to dispel
the reasonable suspicion of danger.” Id. at 335-36, 110 S. Ct. at 1099. The supreme court
clarified that a “protective sweep . . . occurs as an adjunct to the serious step of taking a
person into custody for the purpose of prosecuting him for a crime,” as opposed to a Terry
frisk, which occurs before a “confrontation has escalated to the point of arrest.” Id. at 333,
110 S. Ct. at 1098.
In Bergerson, this court adopted the protec tive-sweep exception in Minnesota,
holding that officers may conduct “protectiv e sweep searches” in the area “immediately
adjoining the place of arrest without probable cause or reasonable susp icion” of a crime,
and areas near the place of arrest, if supported by “articulable facts and rational inferences
from those facts [that] warrant a reasonable suspicion that the area to be searched harbors

9
one or more individuals who threaten the safety of officers and others at the scene.” 671
N.W.2d at 203.
Here, the district court concluded that the assisting officer conducted a valid
protective sweep because “[t]he officers had a reasonable articulable concern for their
safety because the officers reasonably believed that crim inal activity was occurring .”
(Emphasis added.) But this is not the standard articulated by Buie. Under Buie, a sweep
of areas outside of the immediate area of arrest4 must be supported by reasonable suspicion
“that the area . . . harbors an individual posing a danger to those on the arrest scene.” 494
U.S. at 334, 110 S. Ct. at 10 98. The district court confla ted the legal justification for
stopping the individuals with the justification for searching the interior of the van. A search
of the interior of the vehicle is not permitted solely because an officer reasonably believed
that a crime had been committed by an occupant of the vehicle.5

4 Because we hold that the search of the vehicle was not supported by reasonable suspicion
that the vehicle harbored one or more persons posing a danger to those on scene, we do not
consider whether appellant was under arrest at the time of the search or whether the
protective-sweep exception articulated in Buie is applicable to traffic stops.

5 To support the order denying the motion to suppress, the district court cited Michigan v.
Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983), for the pr oposition that contraband found
during a legitimate protective sweep of a vehicle is not required to be suppressed. In Long,
the supreme court held that the search of the passenger compartment of a vehicle is
permitted if the officer “possesses a reasonabl e belief based on ‘specific and articulable
facts which, taken together with the ratio nal inferences from those facts, reasonably
warrant’ the officer in believing that the suspect is dangerous and the suspect may gain
immediate control of weapons.” 463 U.S. at 1049-50, 103 S. Ct. at 3481 (emphasis added)
(quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880). The assisting officer and the chief
presented no testimony at the omnibus hearing that would have justified a search of the
vehicle for weapons under Long.

10
On our thorough review of the record, we are convinced that the search of the van
was not a valid protective sweep. The assisting officer acknowledged in his testimony that
the chief told him that one person had fled the scene and that the three other individuals
who had been in the van were outside. He agreed that, when he arrived, “all the people
[were] out of the vehicle.” He testified that he could see into the van before he opened the
door and began moving items in the van.
Although the assisting officer testified that the scene was “chaotic” when he arrived,
the record supports no such characterization. At the time the assisting officer arrived, the
chief had the individuals separated and co ntained and was attempting to identify the
individuals and decide if a cr ime had been committed. At that time, one male was in the
back seat of the squad car; appellant was handcuffed on the ground in the ditch area away
from the van; and neither the chief nor the a ssisting officer evidenced any concern about
the female passenger, who stayed near the fr ont of the van and wa s, by all accounts,
cooperative and not perceived as a threat.
Whatever safety concerns might have existed earlier, everything was under control
long before the assisting o fficer entered the van and bega n searching it. We see no
articulable facts that would wa rrant a reasonably prudent officer to suspect at that point
that the van harbored one or more individuals who posed a danger to the officers or others
present. See Buie, 494 U.S. at 334, 110 S. Ct. at 1098; Bergerson, 671 N.W.2d at 203. Nor
does the officer’s testimony indicate that the officer limited his search of the van to a
“cursory visual inspection” to ascertain if other individuals were in the van. Buie, 494 U.S.
at 327, 110 S. Ct. at 1094. Ra ther, the assisting officer testified that he could see into the

11
van before he entered it and began moving items in—and removing the firearm from—the
van. The officer did not possess articulable facts to support a su spicion that the van
harbored additional individuals.
The warrantless search of the van and the seizure of the firearm violated appellant’s
Fourth Amendment rights.6 The firearm was therefore no t properly admitted as evidence
at trial. In the absence of the firearm, the evidence is insufficient to support the unlawful-
possession conviction.
We reverse appellant’s unlawful-possession-of-a-firearm conviction, and remand to
the district court to vacate the judgment of conviction and senten ce on that charge. See
State v. Souto, 578 N.W.2d 744, 751 (Minn. 1998) (ordering conviction be vacated where
evidence should have been suppressed).
Reversed in part and remanded.

6 The state also argued that the search was inci dent to a lawful arrest. At oral argument,
the state withdrew that argument and indicated it intended to rely solely on the protective-
sweep exception. We therefore do not consider whether the search could be upheld under
the incident-to-lawful-arrest exception.