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This opinion will be unpublished and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
A17-2052

State of Minnesota,
Respondent,

vs.

Andrew Timothy Barnett,
Appellant.

Filed September 10, 2018
Reversed
Kirk, Judge

Hennepin County District Court
File No. 27-CR-16-30983

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Amanda Harrington (certified student attorney), Minneapolis, Minnesota (for
respondent)

Paul P. Sarratori, Mesenbourg & Sarratori Law Offices, P.A., Coon Rapids, Minnesota (for
appellant)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Kirk, Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
In this appeal from a conviction and sentence for a fifth-degree controlled-substance
crime, appellant challenges the district court ’s pretrial order denying his motion to suppress
drug evidence obtained during a traffic stop of a vehicle in which he was a passenger. Because

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no valid exception justified the warrantless search of appellant’s person, the evidence obtained
as a result of the search was inadmissible, and we reverse appellant’s conviction and sentence.
FACTS
On September 1, 2016, Brooklyn Center police officers J.W. and B.B. were on patrol
in an area known for a high rate of violent crime and drug offenses . They learned over the
police radio that a suspicious vehicle with three black male occupants had just l eft a nearby
hotel with a broken taillight. They located the vehicle and followed it. The vehicle did not
have a broken taillight, but a license-plate check revealed that the vehicle was registered to a
female owner and that the vehicle’s registration was revoked.
The officers conducted a traffic stop at the onramp to Interstate 94 and approached the
vehicle’s three male occupants: appellant Andrew Timothy Barnett, who was seated in the
front passenger seat; the driver; and a second passenger , who had been laying down in the
backseat. After determining that the vehicle was a hazard parked on the onramp and would
have to be towed, the officers asked the occupants to exit the vehicle.
Upon exiting the vehicle, appellant spontaneously disclosed that he had marijuana.
Officer J.W. asked appellant to consent to a pat-frisk search, and he agreed. Officer J.W. then
performed a full search of appellant’s person and discovered heroin in his pocket. Appellant
was arrested and charged with a fifth-degree controlled-substance crime—heroin possession.
Appellant moved to suppress the heroin, an omnibus hearing was held, and the district court
denied the motion. Appellant waived his right to a jury trial, and the matter proceeded to a
stipulated evidence court trial under Minn. R. Crim. P. 26.01, subd. 4, where appellant was
found guilty. Appellant appeals the denial of his pretrial suppression motion.

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D E C I S I O N
I. Initial traffic stop
We review “whether a search or seizure is justified by reasonable suspicion or by
probable cause” de novo and the district court’s disputed findings of fact for clear error. State
v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005). “To conduct a stop for limited investigatory
purposes, an officer must have reasonable, articulable suspicion of criminal activity .” State
v. Bergerson, 659 N.W.2d 791, 794 (Minn. App. 2003) . “Generally, if an officer observes
a violation of a traffic law, no matter how insignificant the traffic law, that observation forms
the requisite particularized and objective basis for conducting a traffic stop.” State v.
Anderson, 683 N.W.2d 818, 823 (Minn. 2004).
It is illegal for “[a]ny person” to drive a motor vehicle with a revoked registration,
Minn. Stat. § 168.36, subd. 1 (2016), and a vehicle’s expired registration is a sufficient basis
to justify a stop. Carter v. State, 787 N.W.2d 675, 679 (Minn. App. 2010). Appellant argues
that under State v. Pike, the officers’ r easonable suspicion for the traffic violation —the
vehicle’s revoked registration —dissipated once they learned that the registered owner was
female and that all of the vehicle’s occupants were male. 551 N.W.2d 919 (Minn. 1996). But
Pike is distinguishable because it involved a revok ed driver’s license, a violation for a
particular driver, not a revoked vehicle registration, a violation for any person who drives the
vehicle. Id. at 921.
Appellant also contends that the stop was pretextual, that the officers actually stopped
the vehicle based on the report of suspicious activity at a nearby hotel , and that the squad
video shows that the alleged broken taillight was fully functional. “Our task is not to decide

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whether the particular officer’s suspicion was genuine . . . ; we examine whether the suspicion
was objectively reasonable.” State v. Britton, 604 N.W.2d 84, 88 (Minn. 2000). Because the
suspected traffic violation was an objectively reasonable basis to initiate the traffic stop, the
initial stop and seizure of the vehicle and its occupants were valid.
II. Incremental expansion of the stop
An officer may expand the scope of the initial stop to investigate other suspected illegal
activity “only if the officer has reasonable, articulable suspicion of such other illegal activity.”
State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002). Each incremental intrusion must be
tied to and justified by the stop’s original purpose, by probable cause, or by reasonableness.
State v. Smith , 814 N.W.2d 346, 350 (Minn. 2012). Appellant argues that the officers
impermissibly expanded the traffic stop into a drug investigation by asking for his driver’s
license, questioning him, and asking him to consent to a search, even though he was a
passenger. The state argues that requesting appellant’s driver’s license was reasonably related
to the initial stop and that even if it was improper, no evidence was obtained as a result.
Appellant does not dispute the officers’ determination that the vehicle had to be towed
or that the officers had the authority to ask the occupants to exit the vehicle as part of the
routine traffic stop. See State v. Krenik , 774 N.W.2d 178, 183 -84 (Minn. App. 2009)
(applying Maryland v. Wilson , 519 U.S. 408, 415, 117 S. Ct. 882, 886 (1997)) (explaining
that police may ask a driver and passengers to exit a lawfully stopped vehicle without an
individualized basis until the stop’s completion), review denied (Minn. Jan. 27, 2010).
The record shows that the search of appellant occurred, and the inculpatory drug
evidence was discovered, after appellant admitted to having marijuana upon the lawful request

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to exit the vehicle. Neither the initial questioning of appellant nor the request for his driver’s
license resulted in the discovery of the suspect heroin. Thus, we need not determine whether
these incremental expansions were impermissible, because any resultant error was harmless
beyond a reasonable doubt. See State v. Davis , 820 N .W.2d 525, 533 (Minn. 2012)
(explaining that constitutional error “is harmless beyond a reasonable doubt if the jury’s
verdict was surely unattributable to the error”) (quotation omitted).
III. Pat-frisk and full search of appellant
Both the United States and Minnesota Constitutions protect against “unreasonable
searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “A search conducted
without a warrant issued upon probable cause is generally unreasonable” unless “the state
proves that the search fell within one of the exceptions to the warrant requirement.” State v.
Flowers, 734 N.W.2d 239, 248 (Minn. 2007). We review probable cause for a warrantless
search de novo and will reverse a district court’s findings only if they are clearly erroneous
or contrary to law. In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997).
Officer J.W. testified that upon exiting the vehicle, appellant spontaneously stated that
he had marijuana on his person. Appellant argues that it is “laughable” that he made this
statement. Although the squad video does not have audio to verify appellant’s statement or
its timing, the district court found that Officer J.W.’s testimony was credible. The court’s
finding was not clearly erroneous, and we defer to this credibility determination. DeMars v.
State, 352 N.W.2d 13, 16 (Minn. 1984) (“The credibilit y of witnesses and the weight to be
given their testimony are determinations [for] the factfinder.”).

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Following appellant’s spontaneous admission, Officer J.W. asked appellant if he had
any weapons. Appellant said no. Officer J.W. then asked appellant if he could perform a pat-
down search, and appellant consented. “[D]uring a routine stop for a minor traffic violation,
a pat-down search is improper unless some additional suspicious or threatening circumstances
are present.” State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998). A limited pat-frisk search
for weapons is permitted if “(1) [an officer has] a reasonable, articulable suspicion that a
suspect might be engaged in criminal activity and (2) the officer reasonably believes the
suspect might be armed and dangerous. ” State v. Dickerson , 481 N.W.2d 840, 843 (Minn.
1992), aff’d, Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993).
Given appellant’ s admission to marijuana possession, Officer J.W. had reasonable,
articulable suspicion that appellant may be engaged in illegal drug activity . Further, Officer
J.W. testified that he pat-searched appellant for safety reasons and that the officers’ suspicions
were raised by the backseat passenger laying down and by reports of the vehicle’s suspicious
activity at a nearby hotel. This record supports that additional suspicious circumstances were
present to justify Officer J.W.’s request for appellant’s consent to pat-frisk him.
“For a search to fall under the consent exception, the [s]tate must show by a
preponderance of the evidence that consent was given freely and voluntarily.” State v. Diede,
795 N.W.2d 836, 846 (Minn. 2011). The district court considers “the totality of the
circumstances” in weighing consent; a “mere acquiescence to a claim of lawful authority” is
not enough. Id. (quotations omitted). “The mere presence of two officers and a simple request
for permission to conduct a pat -down frisk do not constitute coercion.” State v. Doren, 654
N.W.2d 137, 143 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003).

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Appellant challenges t he district court ’s finding that he freely and voluntarily
consented to the pat -frisk search. The record shows that two officers initially arrived at the
scene and two others arrived to assist, but that appellant primarily interacted with Officer J.W.
Neither appellant, nor the driver, were initially put in handcuffs, and the driver was placed in
the backseat of the squad car with the door open . Officer J.W. asked to pat-search appellant
one time, and appellant agreed after that request. The totality of the circumstances support s
the district court’s finding that appellant freely and voluntarily consented to a pat-frisk search.
After appellant consented to a pat-frisk search, Officer J.W. asked appellant where the
marijuana was. Appellant said that he did not know. The squad video shows that Officer J.W.
immediately started to search inside appellant’s pants. The district court found that “[o]nly
after [d]efendant stated he did not know where the drugs were located did the officer perform
a more thorough search —a search supported by probable cause —and find the heroin.” A
warrantless search of a person based on probable cause is not a valid exception to the warrant
requirement. See generally Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009)
(including among exceptions to warrant requirement a search incident to lawful arrest);
Dickerson, 508 U.S. at 375, 113 S. Ct. at 2137 ( finding no violation of Fourth Amendment
rights if officer lawfully pats down “suspect’s outer clothing and feels an object whose
contour or mass makes its identity immediately apparent”); U.S. v. Ross, 456 U.S 798, 807 -
09, 102 S. Ct. 2157, 2164-65 (1982) (allowing “automobile exception” to warrant requirement
to search a car believed to be involved in transportation of contraband goods or illegal
merchandise); U.S. v. Cortez, 449 U.S. 411, 417 -18, 101 S. Ct. 690, 695 (1981) (permitting
limited investigative stop if officer can show “particularized and objective basis for suspecting

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the particular person stopped of criminal activity”); Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct.
1868, 1880 (1968) (requiring only reasonable suspicion of criminal activity rath er than
probable cause to search for individual weapons for the protection of officer when officer
reasonably believes that individual is armed and dangerous).
The state argues that the entire search was justified by appellant’s consent and was
similar to the expansion of a pat -frisk search where an officer uncovers contraband. But
Officer J.W. did not testify that he felt or discovered anything during the pat -frisk, so as to
justify an expanded search. Dickerson, 508 U.S. at 375, 113 S. Ct. at 2137. Indeed, it is clear
from the squad video that Officer J.W. never completed a pat-frisk search of appellant’s outer
clothing. Instead, the video shows that Officer J.W. led appellant to the back of the vehicle
and immediately began digging deeply into appellant’s pants with his hands.
In its suppression order, the district court also implied that appellant’s initial consent
could justify the full search here because it was freely and voluntarily given. But this finding
is internally inconsistent with the remainder of the order and is clearly erroneous on this
record, which shows that appellant consented to a pat-frisk search only. Id. at 373, 113 S. Ct.
at 2136 (noting pat -frisk is limited to search for weapons to ensure officer safety, not to
discover evidence of a crime). Despite appellant’s limited consent, Officer J.W. immediately
began searching appellant’s pockets, far beyond the scope of a pat-frisk search.
Because t he state did not argue, and the district court did not find, that another
exception to the warrant requirement applied here, the full search of appellant was illegal and
all evidence obtained as a result was inadmissible. See State v. Vang, 636 N.W.2d 329, 333

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(Minn. App. 2001) (“If no exception applies, then the fruits of the warrantless search must be
suppressed.”). Thus, the district court improperly admitted the heroin.
Without the admission of the heroin evidence, there is insufficient evidence that
appellant committed a fifth-degree controlled-substance crime—heroin possession, and we
therefore reverse appellant’s conviction and sentence. See State v. Souto, 578 N.W.2d 744,
751 (Minn. 1998) (vacating a conviction where evidence should have been suppressed).
Reversed.