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This opinion will be unpublished and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
A17-2041

State of Minnesota,
Respondent,

vs.

Aaron Michael Anderson,
Appellant.

Filed August 13, 2018
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Olmsted County District Court
File No. 55-CR-15-8929

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

Mark A. Ostrem, Olmsted County Attorney , Eric M. Woodford, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, John Roach (certified student attorney), St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Pr esiding Judge; Connolly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Aaron Anderson appeals his conviction of first-degree controlled-
substance crime, arguing that the officer who pulled him over, arrested him, and ultimately

2
found methamphetamine in his vehicle lacked a reasonable suspicion of criminal activity
to justify the initial stop. Anderson also ap peals his sentence, arguing the district court
erred in not using the Minnesota Drug Sentencing Reform Act (DSRA) sentencing grid to
calculate his sentence. Because the arrest ing officer had a reasonable suspicion that
Anderson was driving with a cancelled lice nse, thus justifying the stop, we affirm
Anderson’s conviction. But we reverse Anderson’s sentence and remand for resentencing
in conformance with the DSRA.
FACTS
On December 25, 2015, Trooper Eric Borm ann was on patrol along Highway 52 in
Olmsted County. At 10:30 p.m., a Jeep Cherokee was traveling in the adjoining lane ahead
of Trooper Bormann. Troope r Bormann ran a search on th e plates of the Jeep and
discovered that the registered owner, J.C ., had an outstanding felony warrant and a
cancelled driver’s license. The database also indicated that J.C. was 56 years old, 5’9” tall,
and weighed 160 pounds.
Trooper Bormann testified that he pulled alongside the Jeep and attempted to look
at who was driving to see if there was someth ing that would eliminat e the driver as the
registered owner. He saw “a male [who] seem ed about six feet tall, somewhere in that
area, and middle age.” Based on what he could see, Trooper Bormann decided he needed
to stop the vehicle and investigate further to see if the driver was indeed J.C. After stopping
the Jeep, Trooper Bormann walked up to the vehicle, and, though he “got a better look” at
the driver, the driver, Trooper Bormann said, “still fit the general description, at least what

3
I was getting off the computer, until I could inquire further a nd get the exact height, age,
[and] weight.”
The exact sequence of ev ents that followed is unclear from the record.1 Eventually
Trooper Bormann asked the driver of the Jeep if he was the vehicle’s owner and if his
driver’s license was valid. Trooper Bormann learned that the driver was not J.C., but rather
appellant Aaron Anderson. Anderson is “close to six feet tall , maybe just a little shorter,
looks like he’s around 30, 35, 40, somewhere in that area,” and weighs 215 pounds.
Anderson stated that he did not have a valid license. Trooper Bormann arrested Anderson
and then conducted an inventory search of the Jeep. He discovered what was later
confirmed to be 27.020 ± 0.008 grams of me thamphetamine, as well as what appeared to
marijuana.
Anderson was charged with first-degree controlled-substance crime (sale), first-
degree controlled-substance crime (possession), driving after cancellation, and possession
of marijuana in a motor vehicle. Anderson moved to suppress th e evidence found as a
result of the search of the Jeep and to dismis s the charges, identifying as the basis for the
motion: “The challenge is to the stop of the vehicle, whether there was an articulable
suspicion of criminal activity to justify the stop.” At a contested omnibus hearing, Trooper
Bormann, in addition to describing the events above, testified that when someone is “sitting
in a car and it’s dark, it’s really hard to tell whether there’s a three-inch difference” between

1 At the contested omnibus hearing, the state repeatedly tried to elicit testimony about what
happened after Trooper Bormann began approach ing the vehicle. Anderson successfully
excluded this testimony as being “beyond th e scope of the challenge” because “[t]he
challenge is [to] the stop of the vehicle only.”

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a driver’s actual height and the height recorded in the database. Regarding weight, Trooper
Bormann explained that it is difficult to gauge a person’s weight “when there’s only a 50-
pound difference” because “people gain and lose weight over the time when they apply for
a license” and, when observing a driver, “you can’t see a lot of stuff” below “their arm and
shoulder.” Finally, regarding age, Trooper Bormann testified that “it’s hard to tell . . . ages
just by looking at [people] in the dark on th e highway. . . . I can’t tell the decades on the
highway late at night.” Trooper Bormann testified that the driver fit the general description
of the registered owner, both while Trooper Bormann drove past the Jeep and when he
approached the driver after the stop.
The district court denied Anderson’s motion to suppress and dismiss. Anderson
subsequently waived his right to a jury trial and filed a rule 26.01, subdivision 4, stipulation
to the state’s evidence regarding first-degree controlled-substance crime (possession), and
the district court convicted him of that cr ime and dismissed the other three charges.
Applying the 2015 sentencing guidelines, on September 28, 2017, the district court
sentenced Anderson to an executed 138-month sentence.
D E C I S I O N
I. Trooper Bormann had a reasonable suspic ion of criminal activity, justifying
the stop.

Anderson argues the district court erre d in denying his motion to suppress the
evidence and dismiss the charges because Trooper Bormann lacked a reasonable suspicion
to stop Anderson. We review de novo whether a stop is supported by reasonable suspicion,
but review for clear error “the factual determinations underlying [that] legal conclusion[].”

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State v. Chavarria-Cruz, 784 N.W.2d 355, 364 (Minn. 2010) (citing State v. Burbach, 706
N.W.2d 484, 487 (Minn. 2005)).
For a brief investigatory stop to be c onstitutional, police must have reasonable
suspicion of criminal activity. State v. Pike , 551 N.W.2d 919, 921 (Minn. 1996).
“Reasonable suspicion is a particularized and objective basis for suspecting the particular
person stopped of criminal activity. . . . It is enough that a law enforcement officer can
articulate specific facts which, taken together with rational inferences from those facts,
objectively support the officer’s suspicion.” State v. Lugo, 887 N.W.2d 476, 486 (Minn.
2016) (quotation omitted).
“When an officer observes a vehicle being driven, it is rational for him or her to
infer that the owner of the vehicle is the current operator” and stop the vehicle if the officer
knows the owner has a revoked license. Pike, 551 N.W.2d at 922. However, such an
inference “applies only while the officer remains unaware of any facts which would render
unreasonable the assumption that the owner is driving the vehicle.” Id. If the inference
becomes unreasonable, the officer may “approach the car and inform the driver he is free
to go,” State v. Lopez , 631 N.W.2d 810, 814 (Minn. App. 2001), review denied (Minn.
Sept. 25, 2001), but may not ask to see the driver’s license absent other grounds justifying
a continued reasonable suspicion of criminal activity. See State v. Hickman, 491 N.W.2d
673, 675 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).
Anderson concedes that Trooper Borman n reasonably suspected J.C. was driving
the Jeep after running its plates, but argues th at this suspicion should have been dispelled
after Trooper Bormann drove next to the Jeep, or, if not at that time, when he approached

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the vehicle after it was pulled over. The st ate argues that Anderson cannot attack his
conviction based on the reasonableness of Trooper Bormann’s suspicions (or lack thereof)
after he pulled over the vehicle because Anders on “actively prevente d [the state] from
developing the factual record to address” whether Trooper Bormann’s reasonable suspicion
should have been dispelled as he approached the vehicle, and, in any event, Trooper
Bormann had a reasonable suspicion at the time he asked Anderson if his license was valid.
Regarding Trooper Bormann’s suspicions before he pulled Anderson over, the
district court concluded that “the differences in the height and weight of the registered
owner and Mr. Anderson are not so drastically different that Trooper Bormann’s suspicion
was unreasonable.” This conclusion is supported by the record. Trooper Bormann testified
that, although it is difficult to determine a driver’s height, weight, and age while driving
next to them at night, he attempted to look for “something that would [indicate] that that’s
not the owner.” However, he saw an approximately six-foot-tall male that appeared to be
middle aged, matching the general information about the registered owner available to him
at the time. It was thus reasonable for Troope r Bormann to continue to suspect that J.C.
was the driver of the Jeep.
We turn to Trooper Bormann’s suspicions after he stopped the vehicle. The state
argues that Anderson forfeited the issue of whether Trooper Bormann’s reasonable
suspicion was dispelled when he approached the vehicle and saw the driver. The state
correctly points out that Anderson objected to Trooper Bormann testifying to events after
the Jeep was pulled over. When Trooper Bormann was asked whether he “notice[d]
anything about the driver” upon approaching the vehicle, Anderson objected as “beyond

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the scope of the challenge. The challenge is to the stop of the vehicle only.” The district
court sustained this and othe r, similar objections. Anderson asserts, however, that his
Fourth Amendment challenge was broad enough to encompass events after the stop of the
vehicle and points to post-stop testimony that did come in without objection.
Assuming without deciding that Anderson di d not forfeit the issue, we evaluate
whether the district court erred in not co ncluding that Trooper Bormann’s reasonable
suspicion was dispelled when he approached the Jeep. Anderson argues that Trooper
Bormann’s acknowledgement that he “got a be tter look” when he approached the vehicle
makes Trooper Bormann’s continuing suspici on objectively unreasonable. Specifically,
Anderson argues it was clear error for the di strict court to credit Trooper Bormann’s
testimony that Anderson “still fit the general description.”
We are again unpersuaded. Trooper Bormann identified the difficulties officers face
when attempting to determine if a particular driver matches a given set of physical
characteristics: heights are difficult to dete rmine when a driver is seated, weights are
difficult to observe when most of the driver’s body is obscured by the car door, and ages
may not be readily determined by appearance alone. In light of this testimony, Trooper
Bormann’s suspicion that J.C. was the driver was reasonable at the time he approached the
vehicle. Therefore, the district court did not err in denying Anderson’s motion to suppress
the results of the search of the Jeep and dismiss the charges.
II. Anderson is entitled to resentencing under the DSRA.

Anderson and the state agree that the dist rict court erred in sentencing Anderson
using the 2015 sentencing guidelines instead of the guidelines as amended by the DSRA.

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Which sentencing guidelines apply to Anderson’s sentence is a question of law subject to
de novo review. See State v. Washington, 908 N.W.2d 601, 606 (Minn. 2018).
The DSRA instructed the Sentencing Guidelines Commission to “re-rank first-
degree possession of a controlle d substance under Minnesota Statutes, section 152.021,
subdivision 2, paragraph (a), at the renumbered severity level D8.” 2016 Minn. Laws ch.
160, § 18(b)(4) at 591. This directive was effective on Ma y 23, 2016, and it “applies to
crimes committed before its effective date if . . . final judgment has not been entered as of
the date the amendment takes effect.” State v. Kirby, 899 N.W.2d 485, 490 (Minn. 2017).
Final judgment had not been entered in Anderson’s case by May 23, 2016.
Therefore he is entitled to resentencing under the DSRA. We reverse Anderson’s sentence
and remand for resentencing in accordance with the DSRA.
Affirmed in part, reversed in part, and remanded.