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This opinion will be unpublished and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
A18-0449

State of Minnesota,
Respondent,

vs.

Michael Karl Berzins,
Appellant.

Filed January 28, 2019
Affirmed
Rodenberg, Judge

McLeod County District Court
File No. 43-CR-17-1036

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael K. Junge, McLeod County Attorney, Daniel R. Provencher, Assistant County
Attorney, Glencoe, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hoote n, Presiding Judge; Rodenberg, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant challenges his convictions for driving while under t he influence of a
controlled substance (DWI) and controlled-substance possession, arguing that the district

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court erred in denying his motion to suppress evidence found during a warrantless search
of appellant’s SUV after his arre st. Appellant also argues tha t the district court erred by
imposing two sentences for his controlled-substance possession and controlled-substance
DWI because they were part of the same behavioral incident. We affirm.
FACTS
While patrolling during the early-morning hours on July 2, 201 7, Glencoe Police
Officer Andrew Fiebelkorn began following appellant’s SUV and watched it cross over the
center line. After seeing the traffic violation, Officer Fiebe lkorn stopped the SUV and
approached it on the driver’s side. Before Officer Fiebelkorn could identify himself, the
SUV driver asked why he had been stopped. Officer Fiebelkorn explained that he stopped
the SUV because it had gone over the center line. Officer Fiebelkorn then asked the driver
for his driver’s license and insurance information. Officer Fiebelkorn identified the driver
as appellant Michael K. Berzins. Two other passengers were in the SUV, a female in the
front-passenger seat and a male in the rear-passenger-side seat.
While speaking with appellant, Officer Fiebelkorn noticed that appellant was “on
the nod,” which the officer testified to mean that appellant was falling asleep while talking
to him. Officer Fiebelkorn also observed that appellant had “droopy eyelids” and scabs on
his arms and hands. Based on his experience working as a polic e officer and on the
appearance and location of the scabs, Officer Fiebelkorn identified such scabs as indicative
of hypodermic-needle use.
Based on his observations of appellant’s scabs, droopy eyelids, and nodding off,
Officer Fiebelkorn asked appellant to step out of the SUV to pe rform field sobriety tests.

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Two other officers arrived on scene to assist Officer Fiebelkorn. Appellant’s performance
on the field sobriety tests indicated impairment. Officer Fiebelkorn arrested appellant for
controlled-substance DWI and placed him in the back seat of a squad car.
Based on his interaction with appellant, Officer Fiebelkorn be lieved that evidence
of drug use would be found insid e the SUV. He decided to searc h it. Officer Fiebelkorn
began his search with the driver’s-side and center-console areas. In those areas, he found
hypodermic needles, one of which appeared to have methamphetami ne inside it. In the
back seat on the driver’s side of the car, Officer Fiebelkorn f ound a lunch pail containing
needles, spoons, a scale, and a pill grinder containing a cryst al-like substance that Officer
Fiebelkorn believed was methamphetamine. In the area where one of the passengers had
been sitting, Officer Fiebelkorn found another hypodermic needle and a small plastic bag
containing approximately two grams of a crystal-like substance. Both the needle and the
bag contained methamphetamine.
Later that morning, Officer Fiebelkorn obtained a search warra nt for a sample of
appellant’s blood. The sample was drawn and later tested posit ive for the presence of
methamphetamine.
The state charged appellant w ith fifth-degree possession of a controlled substance
under Minn. Stat. § 152.025, su bd. 2(1) (2016), and fourth-degr ee controlled-substance
DWI under Minn. Stat. § 169A.20, subd. 1(2) (2016). Appellant moved to suppress the
drug evidence obtained from the search of his SUV. After an ev identiary hearing, the
district court denied appellant’s motion to suppress. Appellant stipulated to the state’s case
to obtain appellate review of the district court’s pretrial rul ing under Minn. R. Crim. P.

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26.01, subd. 4. The district court found appellant guilty of felony fifth-degree possession
of a controlled substance and misdemeanor fourth-degree control led-substance DWI.
Appellant was sentenced to 21 m onths in prison for the fifth-de gree possession offense,
and 90 days in jail for the DWI offense, the sentences to run concurrently.
This appeal followed.
D E C I S I O N
I. The district court did not err by denying appellant’s motion to suppress
evidence obtained from the warran tless search of appellant’s ve hicle incident
to his lawful arrest.

Appellant argues that the distric t court erred by denying his m otion to suppress
evidence obtained from the warr antless search of his vehicle, b ecause the search was not
justified under the search-incid ent-to-arrest exception to the warrant requirement under
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009).
In reviewing a pretrial order on a motion to suppress evidence, we review the district
court’s findings of fact for clear error, but we review its legal determinations de novo. State
v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009). “We may independently review facts that
are not in dispute and determine, as a matter of law, whether t he evidence need be
suppressed.” Id. (quotation omitted).
Both the United States and Minnesota Constitutions prohibit unreasonable searches
and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10 . To avoid suppression of
the evidence acquired from a warrantless search, the state must show that an exception to
the warrant requirement applies. State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).

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A search incident to a lawful arrest is a well-recognized excep tion to the warrant
requirement under the Fourth Amendment. Gant, 556 U.S. at 338, 129 S. Ct. at 1716.
Under this exception, and incident to a lawful arrest, police may make a contemporaneous
search of a vehicle if a defendant has access to the area or if there is reason to believe that
evidence of the crime of arrest might be found in the vehicle. Id. at 343, 129 S. Ct. at 1719.
On appeal, appellant does not argue that the arresting officer did not have probable
cause to arrest him for controlled-substance DWI. The district court determined that it was
reasonable for Officer Fiebelkorn to believe that drug-use evid ence might be found in
appellant’s SUV based on appellant ’s droopy eyelids, nodding of f, puncture marks with
scabs on his arms and hands, and appellant’s having failed two field-sobriety tests. The
district court concluded that the warrantless search of appellant’s SUV was valid under the
search-incident-to-arrest exception to the warrant requirement.
Appellant argues that the search of his SUV was not valid under Gant because it
was unreasonable for the officer to believe that evidence of driving while impaired would
be in appellant’s SUV. Appellant asserts that “[t]he crime of DWI focuses upon evidence
obtained from the dri ver, not other physical evidence, because it is the driver’s state of
intoxication that is prohibited.” He claims that, because he w as arrested “solely for the
crime of DWI,” the officer already had the necessary evidence of the crime of arrest.
In Gant, the Supreme Court identified searches similar to this one as lawful. Gant,
556 U.S. at 344, 129 S. Ct. at 1718-19. In Gant, officers arrested Gant for driving with a
suspended license, handcuffed him, and locked him in the back of a patrol car. Id. at 335,
129 S. Ct. at 1714. Officers searched his car and found cocain e in the pocket of a jacket

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on the backseat. Id. The Supreme Court held that the search was unlawful because G ant
was secured at the time of the search and officers did not believe that evidence of the crime
of arrest (driving with a suspended license) would be in Gant’s car. Id. at 344, 129 S. Ct.
at 1719 (stating that circumstanc es unique to the vehicle conte xt justify a search incident
to lawful arrest when officers reasonably believe evidence rele vant to the crime of arrest
might be found in the vehicle). The Court explained that the s earch was unreasonable in
Gant because, “[a]n evidentiary basis for the search was also lackin g . . . . Gant was
arrested for driving with a suspended license—an offense for wh ich police could not
reasonably expect to find evidence in Gant’s car.” Id.
Here, after Offficer Fiebelkorn arrested appellant for a contro lled-substance DWI,
the officer formed a reasonable belief that drugs—evidence of the crime of arrest—would
be found in appellant’s SUV. O fficer Fiebelkorn’s observation of multiple signs of drug
use reasonably led the officer to believe, based on his trainin g and experience, that
“controlled substances are usually inside the vehicle along with the driver.”
Officer Fiebelkorn was not limited to searching appellant’s per son to obtain
controlled-substance-DWI evidence because Officer Fiebelkorn ar ticulated a reasonable
belief that drugs would be found in the car. See Davis v. United States, 564 U.S. 229, 234-
35, 131 S. Ct. 2419, 2425 (2011) (stating that after Gant, an automobile search incident to
a recent occupant’s arrest is constitutional if the police have reason to believe that the
vehicle contains evidence relevant to the crime of arrest). Th e district court determined
that Officer Fiebelkorn articulated a “reason to believe” that appellant’s car contained
evidence of drug use. The facts he gathered while speaking wit h and arresting appellant

7
supported his belief. The record supports the district court’s determination that Officer
Fiebelkorn searched appellant’s car based on a reasonable belief that drugs would be found
in the SUV. Accordingly, the district court did not err in den ying appellant’s motion to
suppress.
Appellant also argues that the search was not valid under Gant because “[n]o
possibility existed that appellant could reach into the car after his arrest.” Gant stated that
vehicle searches incident to an occupant’s arrest are permitted either “if the arrestee is
within reaching distance of the passenger compartment” or “it is reasonable to believe the
vehicle contains evidence of the offense of arrest. Gant, 556 U.S. at 351, 129 S. Ct. at
1723. Here, the district court did not determine that the sear ch was permitted because
appellant could have reached into the passenger compartment. I nstead, the district court
applied Gant’s reasoning concerning vehicle searches when an officer reasonably believes
that evidence of the crime of arrest is located in the car. Gant, 556 U.S. at 351, 129 S. Ct.
at 1723.
II. The district court did not e rr by sentencing appellant for each offense.
Appellant also argues that the d istrict court erred by imposing both a 21-month
sentence for the drug-possession offense and a 90-day concurren t sentence for the DWI
offense. Appellant asks us to reverse and remand with instructions to the district court to
vacate his DWI sentence. The state agrees that appellant should not have been separately
sentenced for the DWI offense.
We first consider the significance of the state’s concession on appeal that appellant
should not have been separately sentenced for the two offenses. An appellate court’s duty

8
on appeal is to determine if the district court erred, and if s o, to correct the error. Sefkow
v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). And appellate courts never presume error.
Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949). Consequently, it is for the appellate court
and not for the state to determine if the district court has er red. An appellate court’s
responsibility is to decide cases in accordance with the law. State v. Hannuksela , 452
N.W.2d 668, 673 n.7 (Minn. 1990). If the state mistakenly or e rroneously concedes an
issue on appeal, the concession does not bind the appellate cou rt. State v. Warren , 419
N.W.2d 795, 799 (Minn. 1988). Therefore, our determination of whether appellant has
demonstrated error considers, but is not constrained by, the state’s concession.
“[I]f a person’s conduct constitutes more than one offense . . . , the person may be
punished for only one of the offenses.” Minn. Stat. § 609.035, subd. 1 (2016). The
Minnesota Supreme Court has interpreted section 609.035 to bar multiple sentences for
crimes that arise from a single behavioral incident. State v. Bookwalter, 541 N.W.2d 290,
293 (Minn. 1995). When the facts are not in dispute, as is the case here, we review de novo
whether multiple offenses form pa rt of a single behavioral act. State v. McCauley , 820
N.W.2d 577, 591 (Minn. App. 2012), review denied (Minn. Oct. 24, 2012).
An analysis of whether two offenses arise from a single behavioral incident depends
first on whether each crime has an intent element. State v. Bauer, 792 N.W.2d 825, 827-
28 (Minn. 2011). The supreme court has treated DWI offenses as nonintentional crimes.1

1 Appellant was convicted under Minn. Stat. § 169A.20, subd. 1(2). The statute reads, “[i]t
is a crime for any person to drive, operate, or be in physical control of any motor vehicle
. . . when: (2) the person is under the influence of a control led substance.” Minn. Stat.
§ 169A.20, subd. 1(2). Appellant was sentenced under Minn. Sta t. § 169A.27, subd. 1

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See State v. Clement , 277 N.W.2d 411, 412-13 (Minn. 1 979) (stating that appellant’s
offense of driving under the influence of alcohol was nonintentional and different from and
unrelated to his offense of possession of tear gas). Because possession crimes require proof
that the defendant had actual knowledge of the nature of the su bstance in his possession,
fifth-degree controlled substance possession is an intentional crime. State v. Ali , 775
N.W.2d 914, 918 (Minn. App. 2009), review denied (Minn. Feb. 16, 2010).2
When the offenses of conviction include both intentional and nonintentional crimes,
we consider whether the offenses “(1) occurred at substantially the same time and place
and (2) arose from a continuing and uninterrupted course of con duct, manifesting an
indivisible state of mind or coincident errors of judgment.” State v. Fichtner, 867 N.W.2d
242, 253-54 (Minn. App. 2015) (quotation omitted), review denied (Minn. Sep. 29, 2015).
The application of this test “depends heavily on the facts and circumstances of the
particular case.” Bauer, 792 N.W.2d at 828.

(2016) which states that “[a] person who violates section 169A. 20, subdivision 1, 1a, 1b,
or 1c (driving while impaired cr ime), is guilty of fourth-degre e driving while impaired.”
Minn. Stat. § 169A.27, subd. 1. Fourth-degree DWI is a misdemeanor. Id. subd. 2 (2016).

2 Appellant was convicted of fifth-degree controlled substance p ossession under Minn.
Stat. § 152.025, subd. 2(1) (2016). The relevant portion states that, “[a] person is guilty of
controlled substance crime in t he fifth degree and upon convict ion may be sentenced as
provided in subdivision 4 if: (1) the person unlawfully posses s one or more mixtures
containing a controlled substanc e classified in Schedule I, II, II, or IV, except a small
amount of marijuana.” Minn. Sta t. § 152.025, subd. 2(1). Appe llant was sentenced in
accordance with subdivision 4(b) of the statute based on his previous controlled-substances
convictions.

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Appellant did not raise this issue at sentencing. Accordingly, the district court made
no express findings concerning whether the two offenses arose f rom the same behavioral
incident. We are not precluded from reviewing the issue despite appellant not having raised
it to the district court. See Spann v. State, 740 N.W.2d 570, 573 (Minn. 2007) (stating that
an appellant does not waive his right to challenge an unauthori zed sentence on appeal by
failing to raise the issue at sentencing). But in its order, the district court made findings on
the elements of each offense and found appellant guilty of both offenses, and it imposed a
conviction and sentence for each offense. In doing so, the dis trict court implicitly found
that the offenses did not arise from a single behavioral incident.
Appellant argues that the offenses occurred at substantially the same time and place
because “appellant possessed the drugs in the car’s center console as he drove intoxicated.”
He argues that his possession and DWI offenses “manifested coincident errors in judgment:
using drugs and then driving under the influence of those drugs.”
The record does not establish th at the offenses here occurred a t the same time and
place or that the offenses arose from a “conti nuing and uninterrupted course of conduct,
manifesting an indivisible state of mind or coincident errors of judgment.” Fichtner, 867
N.W.2d at 253-54.
On the first question, the recor d suggests that appellant’s pos session began long
before his impaired driving. The scabs and puncture marks on appellant’s arms indicated
that he was a regular user of methamphetamine and appellant’s scabs did not appear fresh
to the experienced officer. This is not a case like City of Moorhead v. Miller, where DWI
and open-bottle offenses were treated as part of the same behavioral incident. 295 N.W.2d

11
548, 550 (Minn. 1980). In Miller, the circumstances suggested that the two offenses began
on the date of arrest. Id. Not so here. There was a sma ll bag of methamphetamine and
multiple items of paraphernalia t hroughout the vehicle that app ellant was driving. The
drug was in multiple syringes and other locations in the vehicl e. Moreover, appellant’s
presentence investigation (PSI) also suggests that his methamph etamine possession
occurred long before he drove on July 2. The PSI reports that appellant admitted to being
a regular user of methamphetamine and that, starting in January 2017 and up to and past
the date of the offenses, he used methamphetamine daily. There fore, although the two
offenses of conviction coincided on July 2, the possession offense seemingly began before
the driving offense.
Concerning the second same-behavioral-incident consideration, the record indicates
that the offenses were distinct, and did not arise from a “cont inuing and uninterrupted
course of conduct, manifesting an indivisible state of mind.” Appellant’s possession of
methamphetamine was complete once he got into the car with the controlled substances,
and that possession crime did not depend on whether appellant decided to drive. See State
v. Bakken , 883 N.W.2d 264, 270 (Minn. 2016) (stating that although posse ssion is a
continuing offense, a possession crime is completed when the offender takes possession of
the prohibited item). Appellant ’ s d e c i s i o n t o d r i v e w h i l e u n d er the influence of
methamphetamine was made after his decision to possess and use methamphetamine. See
State v. Zimmerman , 352 N.W.2d 452, 454 (Minn. App. 1984) (explaining that in the
absence of other facts, such as intent to sell, the objective o f possession is the “personal
use of mind-altering drugs”). And appellant continued to posse s s a b a g o f

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methamphetamine, paraphernalia, and a scale while driving. The se items evidence that
appellant’s possession of the methamphetamine was more than “coincident” with the DWI
offense. Fichtner, 867 N.W.2d at 253-54.
Appellant cites to caselaw where we have reached different conclusions on whether
drug possession and controlled-substance DWI were part of the same behavioral incident.
But different outcomes in different cases can be expected becau se the analysis is “not a
mechanical test, but involves an examination of all the facts a nd circumstances.” State v.
Soto, 562 N.W.2d 299, 304 (Minn. 1997). The facts and circumstances in this case reveal
that appellant possessed the methamphetamine before he committed the DWI offense. The
two offenses were not part of the same behavioral incident.
The record supports the district court’s implicit determination that appellant’s
offenses were not part of a single behavioral incident. The di strict court did not err by
sentencing appellant separately for each offense.3
Affirmed.

3 As noted, appellant’s sentences were concurrent.