State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-2079

State of Minnesota,
Respondent,

vs.

Somboon Lor,
Appellant.

Filed December 31, 2018
Affirmed in part, reversed in part, and remanded
Worke, Judge

Stearns County District Court
File No. 73-CR-16-6461

Lori Swanson, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Karen Mohrlant, F. Clayton Tyler, P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and
Klaphake, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the evidence introduced against him shoul d have been
suppressed as the result of an unconstitutionally initiated and expanded stop of his vehicle.
Appellant also argues that his criminal-history score was improperly calculated to include
separate points for two out -of-state convictions committed as part of a single behavioral
incident. We affirm in part, reverse in part, and remand.
FACTS
On July 11, 2016, Trooper Anthony Butler of the Minnesota State Patrol was
traveling eastbound on Interstate 94 when he observed a rented minivan with Washington
license plates travelling 66 mph in a 70 mph zone. Upon pulling up next to the van, Butler
noticed that the d river would not make eye contact with him, which Butler found to be
unusual. Butler, aware of a “trend” in which “Asians in minivans” would travel from the
west coast transporting large quantities of marijuana, briefly exited the highway in an effort
to “relax” the driver, hoping to observe a traffic violation that would provide a reason to
stop the vehicle. Shortly after reentering the highway, Butler saw the minivan following
too closely to the vehicle ahead of it and initiated a traffic stop.
Butler approached the minivan on its passenger side and observed blankets, pillows,
and “a couple of suitcases” in the backseat. He also noticed “a bunch of trash, cans, candy
wrappers and junk food from convenience stores” in the vehicle, which made the vehicle
seem “kind of lived in like they were driving in [it] for a long time.” Butler asked the
driver for his license and insurance card; the driver did not have an insurance card, but

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provided his license and a rental agreement for the minivan. Butler noted that the van had
been rented in Sacramento, California and, according to the rental agreement, was to have
been returned on July 5, 2016, making it six days overdue.
Having made these observations, Butler asked the driver to accompany him for a
conversation in the front seat of his squad car. Butler asked about his travel plans, and the
driver indicated that they had visited Bozeman, Montana, Yellowstone, and South Dakota.
Butler felt that the driver was very talkative and that he kept attempting to change the
subject. Butler left the driver in the front seat of the squad car and returned to the minivan
to speak with the passenger, appellant Somboon Lor. Butler asked Lor where he had visited
on the trip, and he responded that they had caught fish at Devil’s Lake in North Dakota.
Butler asked if he had been anywhere else and Lor replied “No.”
Butler issued the driver a warning, asked him if there was anything illegal inside the
minivan, and asked for permission to search the vehicle. The driver stated that there was
nothing illegal in the van and that Butler could search it. Butler also asked Lor for
permission to search the van, and Lor said that Butler would have to ask the driver. When
Butler told Lor that he would be running his canine officer around the van, Lor stated
something to the effect of “Okay, you caught me this time.” Butler’s can ine alerted twice
at the driver’s side door and alerted inside the van at seams in the floor around
compartments used to store modular seats. Upon searching the van, police recovered
approximately 100 pounds of marijuana.
Lor was charged with one count of third -degree controlled -substance crime for
possession of marijuana, and one count of second -degree controlled-substance crime for

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possession with intent to sell marijuana. Lor moved to suppress the evidence found in the
minivan on the grounds that the initial stop of the vehicle was pretextual and based on
racial profiling, and because Butler impermissibly expanded the scope of the stop. The
district court denied Lor’s motion, concluding that the traffic stop was not
unconstitutionally pretextual because it was based on an observed traffic violation, and that
Butler’s expansion of the scope of the stop was based upon reasonable articulable suspicion
of additional criminal activity.
Following the denial of his motion, Lor agreed to stipulate to the stat e’s case to
obtain review of this ruling pursuant to Minn. R. Crim. P. 26.01, subd. 4. The district court
found Lor guilty of both charged offenses, convicted Lor of the second -degree crime, and
sentenced him to 98 months in prison. Lor appeals.
D E C I S I O N
The initial stop
Lor first argues that the traffic stop of the vehicle in which he was the passenger
was unconstitutional because it was the product of discriminatory law enforcement based
upon the race of the occupants, and was not supported by a reasonable, articulable
suspicion of wrongdoing.
Whether reasonable suspicion exists to support a traffic stop is a mixed question of
fact and law. State v. Lugo, 887 N.W.2d 476, 487 (Minn. 2016). This court reviews the
district court’s findings of fact for clear error, but reviews whether those findings support
reasonable suspicion de novo. Id. Determining w hether police have engaged in
discriminatory law enforcement involves application of the Equal Protection Clause of the

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Fourteenth Amendment. Gerding v. Comm’r of Pub. Safety , 628 N.W.2d 197, 200 n.2
(Minn. App. 2001), review denied (Minn. Aug. 15, 2001). We review equal -protection
questions de novo. State v. Holloway, 916 N.W.2d 338, 347 (Minn. 2018).
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures. Lugo, 887 N.W.2d at 486. Warrantless searches and seizures are presumptively
unreasonable. State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992). An exception to
the warrant requirement allows police to conduct a brief investigatory stop if the officer
has reasonable, articulable suspicion of criminal activity. Lugo, 887 N.W.2d at 486. A
limited investigative sto p is lawful if the state demonstrates that the officer had a
“particularized and objective basis for suspecting the particular person stopped of criminal
activity.” State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). Ordinarily, if police observe
a traffic violation, “however insignificant, the officer has an objective basis for stopping
the vehicle.” State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
Minnesota law provides: “ [t]he driver of a motor vehicle shall not follow another
vehicle more closely th an is reasonable and prudent, having due regard for the speed of
such vehicles and the traffic upon and the conditions of the highway.” Minn. Stat.
§ 169.18, subd. 8(a) (2014). Here, Butler testified that he observed the minivan following
one or two car-lengths behind another vehicle, which he concluded was “too close.” This
testimony was not challenged at the evidentiary hearing, and it adequately establishes a
reasonable and objective basis to have suspected the van’s driver of having committed a
traffic violation.

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Notwithstanding a reasonable objective basis on which to have stopped the vehicle,
see Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996) (holding that
the constitutional reasonableness of a traffic stop does not depend o n the subjective
motivations of the officer), a traffic stop may be unconstitutionally pretextual if it
represents “intentional, discriminatory enforcement of the law” in violation of the Equal
Protection Clause of the Fourteenth Amendment . Gerding, 628 N .W.2d at 200 -01 n.2
(citing State v. Hyland , 431 N.W.2d 868, 872 (Minn. App. 1988). To demonstrate
discriminatory enforcement, a defendant must establish:
(1) that, while others similarly situated have not generally been
proceeded against because of condu ct of the type forming the
basis of the charge against him, he has been singled out for
prosecution, and (2) that the government’ s discriminatory
selection of him for prosecution has been invidious or in bad
faith, i.e., based upon such impermissible considerations as
race, religion, or the desire to prevent his exercise of a
constitutional right.

Hyland, 431 N.W.2d at 872-73.
In his brief, Lor argues that the minivan was “targeted for traffic enforcement based
on the race of the occupants” due to Butler’s testimony that he had been made aware of a
trend of Asian individuals transporting marijuana from western states, that he had pulled
up alongside of the van and so was presumably aware of the race of its occupants, and that
he expressed a desire to thereafter witness a traffic violation that would provide him with
a reason to stop the vehicle. Lor’s argument fails to establish an equal protection violation,
however, because although the identity of the men in the van as Asian was certainly a

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relevant factor in Butler’s interest in stopping the vehicle, there is no indication fro m the
record that this was his sole reason for doing so.
“It is well -established that an investigatory stop may be based in part on a
description of a suspect’s race , but race or color alone is not a sufficient basis for making
an investigatory stop. ” State v. Yang, 774 N.W.2d 539, 551 (Minn. 2009) ( quotation
omitted). Here, t he district court credited Butler’s testimony that the State Patrol had
received information about people of Asian descent using minivans to transport marijuana
across the country, as well as his additional observations about the van being rented, its
state of origin, its being driven below the speed limit, and the lack of eye -contact by the
driver prior to the stop. These findings were not clearly erroneous and they establish that
the occupants of the van being Asian was but one circumstance among others that
collectively led Butler to legitimately suspect that the men were transporting drugs. There
is no reason conclude that Butler’s motivation for stopping the van was “ invidious or in
bad faith ” and “ based upon such imper missible considerations as race.” Hyland, 431
N.W.2d at 872-73.
The expansion of the stop
Lor next argues that Butler’s expansion of the traff ic stop to include additional
questioning, a request for consent to search, and a canine search was not supported by
reasonable suspicion of further wrongdoing. We review the district court’s findings of fact
for clear error, but review whether those findings support reasonable suspicion of criminal
activity de novo. State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011).

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“[A]n investigative detention must be temporary and last no longer than is necessary
to effectuate the purpose of th e stop.” State v. Wiegand , 645 N.W.2d 125, 135 (Minn.
2002). “[T]he scope of a stop must be strictly tied to and justified by the circumstances
that rendered the initiation of the investigation permissible.” Id. Police may expand the
scope of a stop to investigate other suspected illegal activity only if “the officer has
reasonable, articulable suspicion of such other illegal activity.” Id. Reasonable suspicion
must be based on “specific, articulable facts” that allow an officer to form “a particularized
and objective basis for suspecting the seized person of criminal activity.” Diede, 795
N.W.2d at 842-43. Determinations of reasonable suspicion are based on the totality of the
circumstances. State v. Lande, 350 N.W.2d 355, 357-58 (Minn. 1984). This court analyzes
whether reasonable suspicion exists “from the standpoint of an objectively reasonable
police officer.” State v. Martinson, 581 N.W.2d 846, 850 (Minn. 1998).
Here, the district court determined —and we agree —that the initial stop was first
expanded beyond its original purpose when Butler requested that the driver join him in the
squad car “to investigate the possibility of further criminal activity.” See State v. Fort, 660
N.W.2d 415, 418 (Minn. 2003). At the time he expanded the scope of the stop to separate
and question Lor and the driver, Butler was aware that the minivan had been rented in
California and that the rental agreement had expired six days prior. We conclude that these
facts are sufficient to have permitted an objectively re asonable officer to suspect that the
men were not lawfully in possession of the minivan, and to expand the scope of the stop to
investigate further.

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Butler again expanded the scope of the initial stop when he asked for consent to
search the minivan after having separately questioned the men about their travel plans.
Even when an officer asks for consent to conduct a search of a vehicle during a traffic stop,
the request for consent itself must be supported by a reasonable suspicion of criminal
activity. See Fort, 660 N.W.2d at 419 (concluding that because there was no articulable
basis to justify a request for consent to search a vehicle, the “consent inquiry” went beyond
the scope of the traffic stop and was not supported by reasonable articulable suspicion).
In questioning Lor and the driver, Butler noted their inconsistent statements
concerning where they had visited on their trip and where they intended to go. He observed
that the driver was “very talkative, rambling, trying to change the subject, talking about
[Butler’s] hat and the weather and just basic kind of changing the subject.” Combined with
Butler’s earlier observations that the minivan was a rental vehicle from California and that
it had a lived-in look, and given his awareness of a trend of Asian males driving minivans
from the west coast with large amounts of marijuana, it appears that these facts, taken
together, support reasonable suspicion to have asked for consent to search the vehicle.
Finally, Butler expanded the scope of the initial stop a third time when he actually
conducted a search of the vehicle with his canine. “[I]n order to lawfully conduct a
narcotics-detection dog sniff around the exterior of a motor vehicle stopped for a routine
equipment violation, a law enforcement officer must have a reasonable, articulable
suspicion of drug -related criminal activity. ” Wiegand, 645 N.W.2d at 13 7. Here, when
Butler indicated to Lor that he would be taking his canine officer around the minivan, Lor’s
response indicated that Butler had “caught” them. This statement, together with all of

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Butler’s prior observations during the course of the stop, provided adequate suspic ion of
drug-related activity to have conducted a dog -sniff of the van pursuant to the driver’s
consent. The district court therefore did not err in denying Lor’s motion to suppress the
evidence against him.
Sentencing
Lor argues that the district court er red in calculating his criminal -history score
because it assigned points to two 2014 convictions from California, which he asserts arose
from a single behavioral incident. This court reviews the district court’s determination of
a defendant’s criminal-history score for an abuse of discretion. State v. Maley, 714 N.W.2d
708, 711 (Minn. App. 2006). The district court may not use out -of-state convictions in
calculating a defendant’s criminal -history score unless the state lays proper foundation to
do so. Id. In evaluating out-of-state felony convictions , a defendant may not receive
criminal-history points for more than one offense arising out of a single behavioral
incident, save for those involving multiple victims. State v. McAdoo , 330 N.W.2d 104,
107 ( Minn. 1983); Minn. Sent. Guidelines 2.B.1 , 2.B.5, cmt. 2.B.107 (2015). At
sentencing, the state bears the burden of d emonstrating “the divisibility of a defendant’s
course of conduct” in the case of multiple conviction to support their inclusion in the
defendant’s criminal-history score. McAdoo, 330 N.W.2d at 109.
The record indicates that Lor was convicted of marijuana possession and selling or
furnishing marijuana in Californi a, and that the offense date for both convictions was
November 11, 2012. The calculation of Lor’s criminal history on the sentencing worksheet
indicates that he was assigned two felony points for each of these convictions. Because it

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is reasonable that the two California convictions may have arisen from a single behavioral
incident, and because the existing record is insufficient to establish otherwise, the state did
not meet its burden of demonstrating that separate criminal-history points may be assigned.
However, because Lor did not previously object to the calculation of his c riminal-history
score on this ground, the proper remedy is to reverse the sentence and remand to the district
court where the state may “further develop the sentencing record” to permit the court to
appropriately determine whether the California convictions arose from a single behavioral
incident. State v. Outlaw, 748 N.W.2d 349, 356 (Minn. App. 2008).
Affirmed in part, reversed in part, and remanded.