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This opinion will be unpublished and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
A18-0836

State of Minnesota,
Respondent,

vs.

James Martin Rusthoven,
Appellant.

Filed April 22, 2019
Affirmed
Halbrooks, Judge

Swift County District Court
File No. 76-CR-17-367

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Danielle Olson, Swift County Attorney, Benson, Minnesota (for respondent)

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

Considered and decided by Halbrooks, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Following his conviction of two counts of driving while impaired (DWI), appellant
challenges the district court’s denial of his motion to suppress evidence that was obtained

2
as a result of a traffic stop. Appellant argues that the officer impermissibly expanded the
scope of the stop by conducting a weapons frisk when there was no reasonable basis to
believe that he was armed and dangerous. We affirm.
FACTS
While on patrol on August 31, 2017, Deputy Michael Hoffman of the Swift County
Sheriff’s Office saw a speeding truck. The deputy initiated a traffic stop and observed that
the driver, appellant James Rusthoven, was “very fidgety [and] very agitated.” When
Deputy Hoffman asked Rusthoven if he was under the influence of a controlled substance,
Rusthoven became “even more agitated.”
The deputy returned to his squad car to look up Rusthoven’s driver’s license. The
search revealed that Rust hoven’s license was restricted, re quiring that, if any drugs were
found in his system, his license would be invalidated. The deputy returned to speak with
Rusthoven and observed that
his arms were constantly moving, just back and forth, up and
down. He would take his hat over [sic] very quickly and put it
on very quickly and he was always, you know, it appeared that
he was always digging around inside the vehicle or moving his
arms inside the vehicle.

Deputy Hoffman asked Rusthoven to exit the vehicle, but Rusthoven refused. This made
the deputy “fairly nervous.” The deputy waited to take further action until a second deputy
arrived.
When a second deputy arrived, Deputy Hoffman asked Rusthoven to exit his vehicle
again. After several requests from both deputies, Rusthoven did so . Deputy Hoffman

3
performed a pat-down search for weapons and thought that he felt a methamphetamine pipe
in Rusthoven’s front pocket. Deputy Hoffman told Rusthoven that he was under arrest.
A further pat -down search was conducted and the deputies found a se cond
methamphetamine pipe on Rusthoven. Deputy Hoffman conducted field sobriety tests on
Rusthoven because “even standing with him outside he was still —all of his movements
were still very—very quick, very erratic, very exaggerated reflexes whenever —whenever
he would make a movement.” Rusthoven performed half of the walk -and-turn test before
giving up.
Pursuant to a search warrant, a sample of Rusthoven’s blood was obtained, and it
tested positive for methamphetamine and amphetamine. The state charged Rusthoven with
one count of DWI for operating a motor vehicle under the influence of a controlled
substance, in violation of Minn. Stat. § 169A.20, subd. 1(2) (2016), and one count of fifth-
degree drug possession, in violation of Minn. Stat. § 152.025, subd. 2(1) (2016). The state
later amended the complaint to include a second DWI count for operating a motor vehicle
under the influence of a schedule I or II controlled substance, in violation of Minn. Stat.
§ 169A.20, subd. 1(7) (2016). Prior to trial, th e state dismissed the fifth -degree drug -
possession charge.
Rusthoven moved to suppress all evidence obtained as a result of the stop ,
challenging the deputy’s basis for stopping him and ordering him ou t of the vehicle in
addition to the basis for probable cause for the arrest. An omnibus hearing was held just
days before the jury trial. Deputy Hoffman was the sole witness. The next day, the district
court denied Rusthoven’s motions, finding that each expansion of the stop was justified.

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Following trial, the jury found Rusthoven guilty of both DWI counts. The district
court sentenced Rusthoven to 54 months in prison. This appeal follows.
D E C I S I O N
Rusthoven challenges the district court’s denial of his motion to suppress, arguing
only that Deputy Hoffman did not have reasonable, articulable suspicion that Rusthoven
might be armed and dangerous when he conducted a pat-down search for weapons. When
reviewing a pretrial order on a motion to suppress evidence, we review the district court’s
factual findings for clear error and legal determinations de novo. State v. Milton , 821
N.W.2d 789, 798 (Minn. 2012). We review de novo the district court’s determination that
a reasonable, articulable suspicion existed to justify the search. State v. Brit ton, 604
N.W.2d 84, 87 (Minn. 2000).
Both the United States and Minnesota Constitutions protect against “unreasonable
searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. To be
constitutional, “each incremental intrusion during a tr affic stop [must] be tied to and
justified by one of the following: (1) the original legitimate purpose of the stop,
(2) independent probable cause, or (3) reasonableness, as defined in Terry.” State v.
Askerooth, 681 N.W.2d 353, 365 (Minn. 2004). The supreme court has summarized Terry
as follows: “[E]ven in the absence of probable cause, the police may stop and frisk a person
when (1) they have a reasonable, articulable suspicion that a suspect might be engaged in
criminal activity and (2) the officer re asonably believes the suspect might be armed and
dangerous.” State v. Flowers , 734 N.W.2d 239, 250 (Minn. 2007) (quotations omitted);
accord Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968).

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“The officer need not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man in the circumstances would be warranted in the belief
that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S. Ct. at 1883.
The basis of an officer’s suspicion must be reasonable based on the totality of the
circumstances. State v. Smith, 814 N.W.2d 346, 351 (Minn. 2012). Because of their special
training, police officers have been permitted to make inferences and deductions that might
elude an untrained person when articulating a reasonable suspicion. Flowers, 734 N.W.2d
at 251-52. A police officer who possesses the requisite suspicion may “conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover weapons
which might be used to assault him.” Id. at 253 (quotation omitted).
Here, the district court found that there was a reasonable, articulable suspicion that
Rusthoven was armed and dangerous based on his “movements throughout the cab of his
pickup from the time that the s top was initiated, along with [Rusthoven’s] furtive
movements, his agitation, and his refusal to comply with Deputy Hoffman’s initial order
for him to exit the vehicle.” The district court cited to our decision in State v. Richmond
in support of its decis ion. In Richmond, we held that there was reasonable , articulable
suspicion based on a totality of the circumstances:
(1) Richmond made a “furtive movement” by reaching toward
his car’s passenger compartment; (2) [he] was nervous and
fidgety after he was stopped; and (3) [he] was unable or
unwilling to answer the officer’s questions. After the officer
asked him to locate his driver’s license, Richmond began
reaching all over his body, jacket, and coat pockets. [The
officer] became concerned for his safety and ordered
Richmond from the car. After removing Richmond from the
car, [the officer] became more concerned because Richmond

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looked at the officers as though he was trying to decide whether
to run.

602 N.W.2d 647, 651 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). We find
the similarity of the majority of the facts in Richmond and the facts in this case compelling.
Based on the totality of the circumstances, Deputy Hoffman reasonably believed
that Rusthoven was armed and dangerous. The deputy observed indicia of drug use and
found that Rusthoven’s license was restricted from prior drug use. In addition, Rusthoven
was unwilling to cooperate with the deputies’ requests to exit the vehicle. Based on those
facts, combined with Rusthoven’s “erratic and agitated” movements, including “digging
around inside the vehicle,” “moving his arms inside the vehicle,” an d “fidgeting with
everything,” the deputy reasonably believed that Rusthoven was armed and dangerous. At
that point, given the totality of the circumstances, Deputy Hoffman possessed reasonable
suspicion that criminal activity was afoot and that Rusthoven was armed and dangerous,
justifying a pat-down frisk for weapons.
Rusthoven argues that his agitation and questionable movements were the result of
mere nervousness and are therefore insufficient to justify a frisk under State v. Harris. 590
N.W.2d 90 (Minn. 1999). But Rusthoven’s reliance on Harris is misplaced. In Harris, the
supreme court discussed whether officers had reasonable, articulable suspicion that Harris
was transporting a controlled substance when he was sitting on a bus at a Greyhound
station. Id. at 100. The officers characterized Harris’s actions as being consistent with
suspicious counter-surveillance of the depot and noted that drug carriers often display the
same actions while appearing nervous. Id. But t he supr eme court held that Harris’s

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actions—exiting the bus, entering the depot, and looking around before returning to the
bus—without more, did not amount to reasonable suspicion that he was transporting drugs.
Id. at 100-01.
Rusthoven’s argument does not align with the holding in Harris for several reasons.
First, he cites to the supreme court’s discussion of reasonable suspicion that Harris was
transporting drugs to justify stopping Harris, not a reasonable belief that he was armed and
dangerous to justify frisking Harris. See id.; see also State v. Diede, 795 N.W.2d 836, 852
(Minn. 2011) (“While nervousness alone may not be sufficient to provide a reasonable
suspicion of criminal activity, it may be added to the totality of other circumstances to
support a conclusion that drug -related criminal activity is afoot.”). Second, the supreme
court did not discuss what role Harris’s nervousness played in finding that there was no
reasonable suspicion he was transporting drugs. 1 Instead, the Harris court held th at the
criteria the officers looked for, specifically exiting the bus, looking around, and returning
to the bus while appearing nervous, could describe “any multitude of innocent persons.”
590 N.W.2d at 101. For these reasons, Rusthoven attempts to expand the holding in Harris
by asserting that, “[f]idgeting and agitation are common manifestations of nervousness,
which is not sufficient to justify a frisk.”

1 Later in the opinion, the supreme court did discuss whether Harris’s nervousness, paired
with the large bulge in his jacket and Harris’s statement that he did not know what was in
his jacket sleeve, amounted to a reasonable belief that he was armed and dangerous.
Harris, 590 N.W.2d at 104. The supreme court found that a pat-down search, at this point
in the scenario, was justified. Id.

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As the state points out, caselaw supports the district court’s finding that the deputy
had a reasonable belief that Rusthoven was armed and dangerous because he was fidgety,
agitated, made furtive movements, and refused to comply with the deputy’s requests. See,
e.g., Flowers, 734 N.W.2d at 252 (concluding that officers had a reasonable belief the
defendant was armed and dangerous based on “suspicious movements” that lasted 45
seconds); Richmond, 602 N.W.2d at 651 (finding that officers had a reasonable belief the
defendant was armed and dangerous based on his furtive movements, fidgety and nervous
behavior, and unwillingness to answer the officers’ questions).2 Had Deputy Hoffman only
observed that Rusthoven was nervous, there would not be enough, under the totality of the
circumstances, to justify a pat-down search for weapons. See In re Welfare of M.D.B., 601
N.W.2d 214, 216 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000) (finding that the
officer did not reasonably believe that the bicycle-riding minor, who seemed nervous, was
looking around as if to find an escape route, and had no ident ification was armed and
dangerous). But Rusthoven was more than just nervous —he was fidgety and had erratic
movements; he continually reached around within the cab of his vehicle; he responded to
the deputies with agitation; and he refused to comply with the deputy’s requests to exit the
vehicle. When viewed together , the circumstances support the reasonable belief that

2 Federal caselaw supports this conclusion as well. See United States v. Evans , 994 F.2d
317, 321 (7th Cir. 1993) (concluding that it was reasonable to believe the defend ant was
armed and dangerous based on the police’s observation that he “leaned forward at a forty-
five degree angle for several seconds, as to place or retrieve something under the seat”);
United States v. Colin , 928 F.2d 676, 678 (5th Cir. 1991) (holding t hat defendant’s
movement of “stooping down and moving from side to side ” in a vehicle justified the
officer’s decision to frisk the defendant (quotation omitted)).

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Rusthoven was armed and dangerous. The district court therefore properly denied
Rusthoven’s motion to suppress.
Affirmed.