A18-0659

This opinion will be unpublished and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
A18-0658
A18-0659

State of Minnesota,
Respondent,

vs.

Phillip Joseph Porter,
Appellant.

Filed March 18, 2019
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CR-17-27513

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

Michael O. Freeman, Hennepin Coun ty Attorney, Jean Burdorf, Ass istant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. M artin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Jesson, Judge ; and Klaphake,
Judge.
1

1 Retired judge of the Minnesota Court of Appeals, serving by ap pointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
JESSON, Judge
During a traffic stop in Minneapolis, police officers noticed a passenger in the car
digging in his pants. Worried that the passenger, appellant Phillip Joseph Porter, might be
concealing or grabbing a gun, an officer drew his own gun and o rdered Porter out of the
car. As Porter got out of the car, he handed the officers a ja r filled with marijuana. A
subsequent search of Porter revealed heroin, cocaine and metham phetamine. Porter was
charged with seven counts pertaining to the drugs. Porter asse rts that the district court
erred in denying his motion to sup press evidence obtained as a result of the traffic stop.
And Porter contends that the district court erred in sentencing him to concurrent terms for
all seven counts. Because we conclude that the search of Porter’s pants and removal of the
objects was a lawful search incident to arrest, we affirm the d istrict court’s denial of
Porter’s motion to suppress. But we reverse Porter’s sentences and remand for
resentencing because the district court erred in imposing multi ple sentences for conduct
arising out of a single behavioral incident.
FACTS
On October 30, 2017, Minneapolis police officers Sean Lessard and his partner were
patrolling in Minneapolis in an a rea known as a “high narcotics trafficking area . . . or an
open-air drug market.” During their patrol, the officers were running license plates and
d i s c o v e r e d a c a r w h o s e o w n e r h a d a r e v o k e d l i c e n s e . W h i l e a t t empting to determine
whether the owner was driving the car, the officers noticed two equipment violations: a
cracked windshield and an issue with the driver’s side mirror. The officers stopped the car.

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As Officer Lessard approached the driver’s side window of the c ar, he observed
Porter digging in his pants. It appeared as though Porter was reaching for or trying to
conceal something. After notici ng Porter’s movements, Officer Lessard stepped back,
pulled out his service weapon and ordered Porter to put his hands where they could be seen.
Instead, Porter opened the back door of the vehicle and handed O f f i c e r L e s s a r d a j a r
containing 12.779 grams of marijuana and said “[t]his is all I have.”
After Officer Lessard ordered Porter to put his hands on the dr iver’s seat headrest,
and he did not comply, Officer Lessard removed Porter from the vehicle and handcuffed
him in order to conduct a pat-frisk. During the frisk, Officer Lessard removed papers and
money from Porter’s jacket pocket, and also noticed an “immediate foreign object” in the
front of Porter’s pants, “just below the belt line.” Officer Lessard’s first concern was that
the object might be a gun. But when Officer Lessard patted the area, he realized it was not
a weapon when he noticed a “crinkly” noise associated with the packaging materials used
to store narcotics. This noise led Officer Lessard to believe the object in Porter’s pants
contained drugs.
Officer Lessard testified that he did not want to search Porter any further out on the
street, so Porter was transported to the police station where the search could be conducted
privately. During the search of Porter’s pants, the officers found two packages containing
methamphetamine, heroin, crack, powder cocaine, and pills. As a result, the state charged
Porter with seven drug offenses.
Porter filed a motion to suppress the evidence obtained as a re sult of the stop,
arguing that, even if the initial stop was lawful, the officers impermissibly expanded its

4
scope by removing Porter from the car at gunpoint and searching him without any
reasonable, articulable suspici o n t h a t a c r i m e h a d b e e n c o m m i t ted. After hearing the
arguments, the district court denied Porter’s motion, finding that the stop was lawful based
on the equipment violations; the removal and frisking of Porter was justified; and that the
officers legally took Porter to the police station to conduct a further search.
The case proceeded to a jury trial and Porter was found guilty on all seven counts.2
The district court sentenced Porter to concurrent terms on each count, and his probation
was revoked on a prior third-degree controlled substance conviction. Porter appeals.
D E C I S I O N
I. Because the search of Porter’s pants was a lawful search incident to arrest,
the district court did not err by denying Porter’s motion to su ppress
evidence.

When this court reviews a pretrial order on a motion to suppres s evidence, we
independently review the facts an d decide whether the district court erred in suppressing
or not 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 findi ngs for clear error and its
legal determinations de novo. State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016).
The United States and Minnesota Constitutions protect against “ unreasonable
searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. A police officer

2 In violation of Minn. Stat. §§ 152.021, subd. 1(3) (first-degree sale of heroin), .022, subds.
2(a)(3) (second-degree possession of heroin), 1(1) (second-degr ee sale of cocaine), .023,
subds. 2(a)(1) (third-degree po ssession of cocaine), 1(1) (thir d-degree sale of
methamphetamine), .025, subds. 2(1) (fifth-degree possession of methamphetamine), 1(1)
(fifth-degree sale of marijuana) (2016).

5
may temporarily detain a person if the officer reasonably suspects, based on the totality of
the circumstances, that the person is engaged in criminal activ ity. State v. Flowers, 734
N.W.2d 239, 251 (Minn. 2007). T he reasonable suspicion standar d is “not high” but
requires at least a minimal level of objective justification for the stop. State v. Timberlake,
744 N.W.2d 390, 393 (Minn. 2008) (quotation omitted). The stop must be “justified at its
inception” by specific, articulable facts, and the officer’s ac tions during the stop must be
“reasonably related to and justif ied by the circumstances that gave rise to the stop in the
first place.” State v. Diede, 795 N.W.2d 835, (Minn. 2011) (quotation omitted). To expand
the scope or duration of a stop beyond its original purpose, an officer must have reasonable,
articulable suspicion of other criminal activity. State v. Wiegand , 645 N.W.2d 125, 135
(Minn. 2002). But to arrest an individual, an officer must hav e probable cause—a
reasonable belief that the individual has committed a crime. In re Welfare of G.M. ,
560 N.W.2d 687, 695 (Minn. 1997).
Porter concedes that the officers had a valid basis to stop th e car in which he was a
passenger given the two equipment violations. See State v. George, 557 N.W.2d 575, 578
(Minn. 1997) (stating that “if an officer observes a violation of a traffic law, however
insignificant, the officer has an objective basis for stopping the vehicle”). And on appeal,
he does not challenge the initial expansion of the stop when the officer (after seeing Porter
stuffing something—perhaps a gun—i nto his pants) drew his gun a nd ordered Porter out
of the car to be handcuffed and frisked. See Askerooth, 681 N.W.2d at 364 (concluding
that each incremental intrusion during a stop must be justified by the circumstances that
made the stop permissible, and an intrusion not closely related to those circumstances

6
invalidates the search or seizure unless independent probable cause or reasonable suspicion
exists); see also State v. Harris , 590 N.W.2d 90, 104 (Minn. 1999) (explaining that pat
search was justified by unusual nervousness, secretive movements, and attempt to conceal
object). But Porter contends that after the initial pat frisk, when the officer determined that
the bulge in Porter’s pants was probably not a gun, the officer ’s next step exceeded the
scope of an appropriate frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).3
Transporting a handcuffed Porter by squad car to the police sta tion for a more thorough
search was an arrest, he asserts. Under Minnesota law, an arrest is the “taking of a person
into custody that [he] may be held to answer for a public offen se” and “includes actually
restraining a person or taking in to custody a person who submit s.” Minn. Stat. § 629.30,
subd. 1 (2018). And an arrest, as Porter notes, must be suppor ted by probable cause. See
G.M., 560 N.W.2d at 695.
Based upon the uncontested facts that Porter attempted to conceal something in his
pants and did not comply with the officer’s order to place his hands on the headrest, and
that Porter handed the officer a jar of marijuana, we conclude that even if taking Porter to
the station constituted an arrest (an issue we do not reach), t he officers had the requisite

3 Terry permits a protective frisk for weapons. 392 U.S. at 27, 88 S. Ct. at 1883. Under
Terry, “police may stop and frisk a per son when (1) they have a reas onable, 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) (citing Terry, 392 U.S. at 30, 88 S. Ct. at 1884). And when the officer
is assured that no weapon is present, the frisk is over. Id. at 844. If the officer feels an
object, during the course of the frisk, that cannot possibly be a weapon, “the officer is not
privileged to poke around to determine what that object is; for purposes of a Terry analysis,
it is enough that the object is not a weapon.” Id.

7
probable cause. 4 Probable cause requires office rs to have a reasonable belief that an
individual has committed a crime. State v. Bradley , 908 N.W.2d 366, 369 (Minn. App.
2018). In State v. Ludtke , a factually similar case, an officer stopped a speeding car i n
which Ludtke was a passenger. 306 N.W.2d 111, 112 (Minn. 1981). During the stop, the
officer noticed a plastic bag con taining marijuana protruding from Ludtke’s shirt pocket.
Id. The officer seized the marijuana and proceeded to frisk the driver. Id. When returning
the driver to the car, the officer observed Ludtke reaching into the back seat in a secretive
manner. Id. Ludtke was ordered out of the car and frisked by the officer. Id. And during
the frisk, the officer found a knife in Ludtke’s pants pocket a nd a plastic bag containing
cocaine. Id. T h e s u p r e m e c o u r t u p h e l d t h e s e a r c h b e c a u s e t h e o f f i c e r s a w a b a g o f
marijuana in Ludtke’s shirt poc ket and felt a soft object in Ludtke’s pants pocket that the
officer reasonably believed to be narcotics. Id. at 113; see also State v. Dickerson , 481
N.W.2d at 846 (concluding that in Ludtke, the officer’s observation that Ludtke attempted
to hide something, the discovery of a knife during a frisk of Ludtke, and the presence of a
plastic bag containing anything on Ludtke’s body gave police probable cause to believe he
was in possession of a controlle d substance, justifying a searc h incident to arrest).
Similarly, here, before the actions that Porter characterizes a s an arrest, Porter attempted
to conceal something in his pants, disobeyed the officer’s orders, opened the car door, and

4 While the district court did not rely on the search-incident-t o-arrest exception when
denying the motion, “[a] respondent can raise alternative argum ents on appeal in defense
of the underlying decision when t here are sufficient facts in t he record for the appellate
court to consider the alternative theories, there is legal support for the arguments, and the
alternative grounds would not expand the relief previously granted.” State v. Grunig, 660
N.W.2d 134, 137 (Minn. 2003).

8
handed the officer a jar of marijuana. Further, the officer no ticed a “crinkly” package
during the frisk. These circumstances provided probable cause to arrest Porter.
And once the officers had probable cause to arrest Porter, they h a d a u t h o r i t y t o
conduct a search incident to arrest. State v. Varnado, 582 N.W.2d 886, 893 (Minn. 1998).
Because the search of Porter’s pants was a lawful search incident to arrest, the district court
did not err in denying Porter’s motion to suppress evidence.
II. The district court erred by imposing multiple concurrent sentences.

Porter contends that the district court erred by imposing mult iple concurrent
sentences which had the effect of increasing his criminal-histo ry score. When doing so,
the district court utilized State v. Hernandez , 311 N.W.2d 478 (Minn. 1981). Under
Hernandez, a district court sentencing a convicted defendant on the same day for multiple
convictions based on multiple offenses that were not part of “a single behavioral incident
or course of conduct” can increase the defendant’s criminal-history score incrementally as
each successive sentence is imposed. 311 N.W.2d at 480-81.
But here, as the state concedes, Porter’s convictions clearly arose from a single
behavioral incident. The district court acknowledged this as w ell. And Minnesota law
prohibits the imposition of multiple sentences, including concurrent sentences, for multiple
offenses that arise from a single behavioral incident. Minn. Stat. § 609.035, subd. 1 (2016).
“Whether multiple offenses arose out of a single behavioral inc ident depends on the facts
and circumstances of [a] particular case.” State v. Bookwalter , 541 N.W.2d 290, 294
(Minn. 1995). To determine whether multiple offenses arose fro m a single behavioral
incident, this court examines whether they were motivated by a single criminal objective

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and whether they were unified in time and place. Id. Here, Porter was convicted of
fifth-degree sale of marijuana, and six other drug-related char ges. Porter’s marijuana
conviction arose out of handing the police officers the jar fil led with marijuana, but the
remaining drug convictions arose out of the packages found in the front of Porter’s pants.
Because Porter handed the police officers the marijuana, which justified his arrest, they
searched him incident to arrest, and discovered the other drugs hidden in his pants. And,
the drugs found on Porter were found on the same day, during a search incident to arrest
justified by the marijuana, meaning the offenses were unified i n time and space, and all
seven convictions arose out of a single behavioral incident. See State v. Papadakis , 643
N.W.2d 349, 358 (Minn. App. 2002) (holding that multiple convic tions for possession of
different drugs on the same day were appropriate, but multiple sentences were not).
Because the convictions arose out of a single behavioral incident, the district court erred in
imposing multiple, concurrent sen tences. We reverse Porter’s s entences and remand for
resentencing.5
Because Porter handed a jar cont aining marijuana to the office r and it was
immediately apparent that the ob ject in Porter’s pants was cont raband, we conclude that
the search of Porter’s pants and the seizure of the contraband was a lawful search incident
to arrest. As a result, we affirm the district court’s denial of Porter’s motion to suppress
evidence obtained as a result of the traffic stop. But because the district court erred by

5 Porter also asserts that if his convictions are reversed, his case must be remanded to vacate
the probation revocation. Because we are not reversing Porter’ s convictions, we do not
reach this argument.

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imposing multiple sentences for a single behavioral incident, w e reverse and remand for
resentencing.
Affirmed in part, reversed in part, and remanded.