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This opinion will be unpublished and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
A18-0639

State of Minnesota,
Respondent,

vs.

Dylan David Tonn,
Appellant.

Filed May 6, 2019
Reversed and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-CR-17-5011

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Luke A. Hasskamp, Nathaniel J. Moore, Jaime J. Wing, Special As sistant Public
Defenders, Robins Kaplan LLP, Minneapolis, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Hooten, Judg e; and Cochran,
Judge.

2
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this direct appeal, appellant argues that the district court erred in denyi ng his
motion to suppress the evidence s e i z e d b e c a u s e ( 1 ) t h e o f f i c e r s d i d n o t h a v e a c t u a l o r
apparent authority to enter the hotel room, (2) the officers did not have reasonable suspicion
to seize appellant, and (3) appellant did not voluntarily conse nt to the search of his hotel
room. Because the seizure was not supported by reasonable susp icion, we reverse and
remand.
FACTS
On the morning of January 21, 2017, a uniformed police officer was patrolling in
the area of the Red Roof Inn in Plymouth, Minnesota. While par ked near the hotel, he
noticed a man later identified as C.J. enter the front passenge r side of a vehicle parked in
the hotel parking lot. The police officer watched C.J. rummage under the seat, exit the
vehicle after about a minute, walk back toward the hotel, and go up a side staircase that led
to the guest rooms. Approximately 10 to 15 minutes later, C.J. returned to the vehicle and
rummaged under the seat again for possibly a few minutes, and t hen returned to the hotel
via the same route. After C.J. returned to the hotel the secon d time, the police officer
observed another man, later identified as A.S., exit the hotel and enter the same vehicle.
A.S. reached under the front seat of the car as well, and the police officer grew suspicious
that a drug transfer was taking place within the car.
The police officer approached A.S. and asked whether there wer e any narcotics in
the vehicle. A.S. stated that there was a marijuana pipe in the car. The police officer then

3
contacted a canine officer to assist in a search. After the ca nine alerted to the presence of
narcotics, the police searched the car. The police found marijuana residue and a marijuana
pipe in the car. The police also determined that the vehicle was registered to A.S.
The police officer asked A.S. whether he was renting a room at the hotel. A.S.
replied that he was staying in room 340 but was not the renter. The police officer then
asked A.S. to bring both officers up to the hotel room, and A.S. agreed.
Upon arriving at room 340, A.S. used a room key to open the do or for the officers.
The uniformed police officers entered the room and saw appellan t Dylan David Tonn
asleep on one of the beds. One of the officers announced their presence, and Tonn woke
up. At the time, the officer was standing near the bed, within an arm’s length of Tonn.
When he awoke, Tonn appeared gr oggy. The officer told Tonn tha t they were there to
investigate unregistered guests and narcotics. The officer asked Tonn whether he was the
renter of the room and Tonn responded that he was. The officer asked whether there were
any drugs in the room and whether they could conduct a search. Tonn responded that there
were no drugs in the room and that the officers could search the room. During the search,
the officer looked inside a sunglasses case and found two separate baggies, each of which
contained cocaine. The bags weig hed approximately 0.54 grams a nd 1.72 grams,
r e s p e c t i v e l y . T o n n w a s a r r e s t e d a n d c h a r g e d w i t h f i f t h - d e g r e e controlled substance in
violation of Minn. Stat. § 152.025, subd. 2(1) (2016).
At a hearing held on May 25, 2017, Tonn moved to suppress the evidence found in
the hotel room as “fruit of the poisonous tree.” He argued tha t he was unlawfully seized
and the officers did not receive valid consent to search the room. At the hearing, the police

4
officer who first made contact with A.S. testified regarding th e search and the
circumstances leading up to it. He also testified that he believed that Tonn had unregistered
guests in the room, but he provided no testimony that he asked Tonn, C.J., or A.S. who was
registered. The officer also acknowledged that he had not spoken with any employees of
the hotel to determine who was registered prior to entering room 340. Tonn testified at the
hearing as well. There were no other witnesses.
Following the hearing, the district court issued an order deny ing Tonn’s motion to
suppress. The district court fo und that: (1) Tonn did not have standing to challenge the
initial stop of A.S. or any expansion of that stop; (2) A.S. ha d actual authority to let the
officers into the hotel room; (3 ) even if A.S. lacked actual au thority, he had apparent
authority to allow access; (4) Ton n was seized when the officer s entered the hotel room;
(5) the seizure was supported by reasonable suspicion that ther e were drugs and
unregistered guests in the room; (6) the officers had reasonabl e suspicion to expand the
seizure and ask Tonn for consent to search the room; and (7) Tonn’s consent was voluntary.
Following the denial of his motion, Tonn waived his jury-trial rights and stipulated
to the state’s evidence, preserving the dispositive pretrial is sue for appeal. The district
court found Tonn guilty and sentenced him to a stay of impositi on of sentence for three
years.
This appeal follows.
D E C I S I O N
When reviewing a pretrial order denying a motion to suppress ev idence, this court
independently reviews the facts a nd decides whether the distric t court erred in not

5
suppressing the evidence as a matter of law. State v. Askerooth , 681 N.W.2d 353, 359
(Minn. 2004). We review the district court’s factual findings for clear error and its legal
determinations de novo. State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011).
Both the United States and Minn esota Constitutions guarantee pr otection against
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. This
constitutional protection “extends to persons staying in hotel rooms.” State v. Thomas, 598
N.W.2d 389, 391 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999). A search or
seizure conducted without a wa rrant is presumptively unreasonab le. State v. Lugo , 887
N.W.2d 476, 486 (Minn. 2016). There are several exceptions to the warrant requirement,
including when a search is conducted with consent. State v. Hatton, 389 N.W.2d 229, 232
(Minn. App. 1986) (citing Katz v. United States, 389 U.S. 347, 357-58, 88 S. Ct. 507, 514-
15 (1967)), review denied (Minn. Aug. 13, 1986). Generally, evidence obtained pursuant
to an unconstitutional search or seizure must be suppressed. Mapp v. Ohio, 367 U.S. 643,
654-55, 81 S. Ct. 1684, 1691 (1961); State v. Jackson , 742 N.W.2d 163, 177-78 (Minn.
2007).
Tonn argues on appeal that the district court erred in denying his motion to suppress
because (1) the officers did not have actual or apparent author ity to enter the hotel room,
(2) the officers did not have reasonable suspicion to seize him , and (3) he did not
voluntarily consent to the search of his hotel room. We address Tonn’s arguments in turn.
I. A.S. had actual authority to consent to the officers’ entry of the hotel room.
Tonn argues that the district court erred when it concluded that A.S. possessed actual
authority to consent to the officers entering the hotel room. When the facts of a case are

6
not in dispute, this court reviews the reasonableness of a sear ch de novo. Thomas, 598
N.W.2d at 391. “[A] third party having common authority over p remises or effects may
consent to a search.” In re Welfare of D.A.G. , 484 N.W.2d 787, 789 (Minn. 1982). The
common authority of an individual over a premises rests upon th e “mutual use of the
property by persons generally having joint access or control.” Thomas, 598 N.W.2d at 392
(quotation omitted).
Here, the record shows that A.S. possessed actual authority. A.S. told officers that
he was staying in room 340. While he was not the renter of the room, he possessed a room
key. Additionally, Tonn testified that he had been staying at different hotels with A.S. for
the past few nights and they decided to “get a hotel [room] together.” A.S. was not a mere
guest, but had mutual use of the room, evidenced by joint access. See State v. Hatton, 389
N.W.2d at 233 (stating that while “a mere guest of a premises m ay not give consent to
search those premises when his or her interest is inferior to that of the host,” a person who
has joint access to the premises has common authority to give consent). The district court
did not err when it concluded that A.S. had actual authority to consent to the police officers
entering the hotel room.
II. The police did not have a reasonable suspicion to seize Tonn.
Tonn argues that even if A.S. had actual authority to allow th e police to enter the
hotel room, the police officers impermissibly seized him after they entered the room. A
police officer may “temporarily seize a person to investigate t hat person for criminal
wrongdoing if the officer reasona bly suspects that person of cr iminal activity.” State v.
Cripps, 533 N.W.2d 388, 391 (Minn. 1995). The officer must have “a p articularized and

7
objective basis for suspecting the particular person stopped of criminal activity.” Lugo,
887 N.W.2d at 486. “[R]easonable suspicion requires something more than an
unarticulated hunch.” State v. Davis , 732 N.W.2d 173, 182 (Minn. 2007) (quotation
omitted). The burden is on the state to establish a reasonable suspicion. State v. Flowers,
734 N.W.2d 239, 256 (Minn. 2007).
This court reviews the district court’s findings of fact for cl ear error. Diede, 795
N.W.2d at 843. When reviewing “the district court’s determination that its factual findings
support a reasonable suspicion of criminal activity justifying the police officer’s search or
seizure,” this court applies a de novo standard. Id.
A seizure occurs when an officer “by means of physical force or show of authority,
has in some way restrained the liberty of a citizen.” Cripps, 533 N.W.2d at 391 (quotation
omitted). A person is seized if the totality of the circumstan ces show that a reasonable
person would not have believed that he or she was able to disregard the police questions or
terminate the encounter. Id. The district court concluded that Tonn was seized because he
was “awoken by the presence of two uniformed police officers” a nd questioned by the
police without being told he coul d terminate the encounter or d isregard the police
questioning. The district court emphasized that one officer was “so close to [Tonn] that he
‘could have reached dow n and touched his foot.’” Based on the totality of the
circumstances, the district court concluded that a reasonable p erson in Tonn’s position
“would not have believed that he could leave the motel room at that point or otherwise
terminate the encounter.”

8
On appeal, the parties do not challenge the district court’s de termination that Tonn
was seized by the police. The question before us, then, is whe ther the police officer
articulated a sufficient individu alized basis for suspecting To nn of criminal activity to
justify the seizure. See id. (stating that to reasonably suspect a person of criminal activity,
the police office “must be able to articulate at the omnibus he aring that he or she had a
particularized and objective basis for suspecting the seized person of criminal activity”).
Tonn argues that his seizure was unlawful because the police o fficer did not point
to any articulable facts to demonstrate reasonable suspicion th at Tonn was engaged in
criminal activity. Tonn contends that the district court erroneously relied on facts that were
not specific to Tonn in concluding that the seizure was lawful. The state maintains that the
officers had reasonable suspicion because (1) the officers suspected additional drug activity
in the hotel room and (2) the officers believed Tonn had unregistered guests staying in his
room. Based on an objective examination of the undisputed fact s in this case, we agree
with Tonn that the state has failed to demonstrate “a particularized and objective basis” for
suspecting that Tonn—as opposed to A.S. or C.J.—was engaged in criminal activity.
At the suppression hearing, the police officer did not articula te any facts that
demonstrated a reasonable basis for suspecting that Tonn was engaged in criminal activity
prior to being seized. All the facts prior to the seizure rela ted to C.J. and A.S. At the
hearing, the police officer testified that he watched C.J. enter a vehicle in the Red Roof Inn
parking lot, reach under the seats, exit the vehicle, and retur n to the hotel. The police
officer did not know where C.J. went once he entered the hotel. After C.J. repeated these
actions a second time and was back inside the hotel, the police officer observed A.S. exit

9
the hotel and enter the same vehicle. The police officer approached A.S. in the parking lot
because he suspected a drug transfer was taking place. The pol ice officer asked A.S.
whether he was staying at the hotel and whether there were any more drugs in the room.
A.S. confirmed that he was staying in room 340 and denied knowing whether any narcotics
were in the hotel room. While searching the car, the police of ficer discovered a pipe and
marijuana residue, consistent with personal use, but no other drugs.
While the police officer allude d to the potential of additional drugs or drug activity
in the hotel room based on the conduct of C.J. and A.S., the drugs discovered in the vehicle
were consistent with personal use, not drug trade. And, the police officer did not provide
any facts at the suppression hearing to flesh out his hunch tha t , b e c a u s e t h e r e w e r e
personal-use drugs found in the parked car, there also would be drugs in the hotel room.
This is especially true considering that the police officer did not see where C.J. went after
he entered the hotel staircase, and A.S. returned to the hotel escorted by the officers. The
r e c o r d t h u s f a i l s t o s u p p o r t t h e s t a t e ’ s a r g u m e n t t h a t t h e p o l ice officer articulated a
reasonable basis to suspect additional drug activity in the hotel room.
Even if it was reasonable for th e police officer to suspect tha t there were drugs in
the hotel room based on the conduct of C.J. and A.S., the polic e officer did not testify to
any specific and articulable facts that would objectively lead the police to suspect Tonn of
criminal drug activity. All the facts relating to suspected criminal drug activity prior to the
police seizing Tonn involved A.S. and C.J. The car where the p ersonal-use drugs were
found belonged to A.S., and only A.S. and C.J. were seen in the vehicle. At best, the police
officer articulated a reasonable basis to suspect that A.S. and C.J. were engaged in criminal

10
drug activity, but not Tonn. Any suspicion of criminal drug ac tivity by Tonn, who was
asleep in the room when the poli ce entered, was at most “an una rticulated hunch.” See
Diede, 795 N.W.2d at 844 (“Mere proximity to, or association with, a person who may
have previously engaged in criminal activity is not enough to support reasonable suspicion
of possession of a controlled substance.”). In sum, the state failed to meet its burden to
demonstrate a reasonable, articul able suspicion that Tonn was e ngaged in criminal drug
activity. See Flowers, 734 N.W.2d at 256 (holding that the state did not meet its burden
because there was no testimony by officers to support reasonabl e, articulable suspicion).
Because the police officer’s tes timony in this case was insuffi cient to demonstrate a
reasonable suspicion of criminal drug activity by Tonn, the sei zure was not supported on
this basis.
The record also shows that the police officer did not point to any facts that
objectively supported his belief that there were unregistered g uests in the hotel room.
Minnesota law mandates that hotel guests provide registration information for each person
staying in the room and categorizes the failure to do so as a m isdemeanor offense. Minn.
Stat. §§ 327.11, .13 (2016). But the police officer’s testimony reflects a mere hunch that
Tonn had violated this statute. A.S. told the police officer that he was staying in room 340
but was not the renter. This statement alone is not indicative of any statutory violation.
The police officer did not follow up with any additional questi ons about whether he was
registered, and the officer did not contact the hotel staff to check whether A.S. or C.J. were
registered prior to seizing Tonn. Because the police officer did not point to any facts that

11
supported his suspicion of unregistered guests in Tonn’s room, his suspicion amounted to
a mere hunch and did not support the seizure.
In sum, based on the specific, undisputed facts of this case, we conclude that the
district court erred when it determined that the seizure was su pported by a reasonable
suspicion because the state did n ot demonstrate that the police had a particularized and
objective basis for suspecting cr iminal activity by Tonn suffic ient to justify the seizure.
Cripps, 533 N.W.2d at 391. Because his seizure was unlawful, Tonn is entitled to the
suppression of any evidence obtained as a result of the exploitation of this illegality. Wong
Sun v. United States , 371 U.S. 471, 487-88, 83 S. Ct. 407, 417 (1963); State v. Holland,
865 N.W.2d 666, 670 (Minn. 2015) (citing Wong Sun).
“When the police obtain a person’s consent to search after unlawful police conduct
has occurred, the state must demonstrate both (1) that the subs equently obtained consent
was voluntarily given and (2) that the connection between the u nlawful conduct and the
evidence is so attenuated as to dissipate the evidence of the ‘taint’ of the unlawful conduct.”
State v. Barajas , 817 N.W.2d 204, 217 (Minn. App. 2012) (quoting United
States v. Lakoskey, 462 F.3d 965, 975 (8th Cir. 2006)), review denied (Minn. Oct. 16,
2012).
To determine whether consent is voluntary, courts look at “the totality of the
circumstances, including the nature of the encounter, the kind of person the defendant is,
and what was said and how it was said.” State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999)
(quotation omitted). Consent is voluntary if a “reasonable person would have felt free to
decline the officer’s requests or otherwise terminate the encou nter.” State v. Dezso, 512

12
N.W.2d 877, 880 (Minn. 1994) (quotation omitted). Whether cons e n t t o a s e a r c h w a s
voluntary or was the product of duress or coercion is a questio n of fact, which this court
reviews for clear error. Diede, 795 N.W.2d at 846.
Here, the encounter between the officers and Tonn occurred mid- morning in his
hotel room. Tonn was awoken by t he officers announcing their p resence. The officers
asked Tonn whether they could look around the room, and Tonn responded that they could.
Tonn has had two previous interactions with police officers and testified that he “thought
[he] could” refuse the officers’ request to search the room. W hile Tonn testified that he
was scared and confused after the officers entered his room, “involuntariness of a consent
to a police request is not to be inferred simply because the circumstances of the encounter
are uncomfortable for the person being questioned.” Deszo, 512 N.W.2d at 880. Based on
the totality of the circumstances, the district court did not c learly err in finding that Tonn
voluntarily consented to the search of the hotel room.
Having found that Tonn’s consent was not involuntarily given, w e must next
evaluate the relationship betwee n his consent and the unlawful seizure that preceded it.
“When determining whether the ta int is purged from unlawfully o btained evidence, we
consider (1) the temporal proximity between the illegal search or seizure and the consent;
(2) the presence of intervening circumstances; and (3) the purp ose and flagrancy of the
official misconduct.” Barajas, 817 N.W.2d at 218 (quotation omitted).
Regarding the first factor, th e officers obtained Tonn’s consen t immediately after
seizing Tonn. The officers entered the hotel room, announced t h e i r p r e s e n c e , a s k e d
whether any narcotics were present in the room, and asked for T onn’s consent to search.

13
As to the second factor, there we re no intervening circumstances that would have led the
officers to independently discover the drugs. Police found the drugs in a sunglasses case
during the search that was conducted immediately after asking Tonn for consent to search
the room. The first and second factors weigh strongly in favor of concluding that the taint
of the unlawful seizure was not purged.
Lastly, we consider the purpose and flagrancy of the official m isconduct. “[T]he
primary purpose of the exclusionary rule is to deter police mis conduct.” State v. Hardy,
577 N.W.2d 212, 217 (Minn. 1998). And even if the officers wer e acting in good faith,
permitting the police to request consent and search the room without reasonable suspicion
would undermine the purpose of the exclusionary rule. See Barajas, 817 N.W.2d at 219
(stating that “permitting the police to obtain consent after co nducting an unlawful search
so as to circumvent the exclusionary rule, even if the police conducted the unlawful search
in good faith, would undermine” the exclusionary rule (emphasis omitted)). The third
factor weighs in favor of concluding that the taint was not purged.
Because the taint of the unlawful conduct was not purged, the d istrict court’s
decision to admit the evidence found during the search was erro r. Tonn is entitled to the
suppression of any evidence obtained as the result of the exploitation of the illegal seizure.
Reversed and remanded.