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This opinion will be unpublished and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
A18-1643

State of Minnesota,
Respondent,

vs.

Zong Lee,
Appellant.

Filed June 24, 2019
Affirmed
Florey, Judge

Wright County District Court
File Nos. 86-CR-17-973; 86-CV-17-2002

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

Thomas N. Kelly, Wright County Attorney, Brian A. Lutes, Assistant County Attorney,
Buffalo, Minnesota (for respondent)

John Arechigo, Arechigo & Stokka, P.A., St. Paul, Minnesota; and

Robert H. Ambrose, Ambrose Law Firm, P.L.L.C., Minneapolis, Minnesota (for appellant)

Mahesha P. Subbaraman, Subbaraman, P.L.L.C., Minneapolis, Minnesota (for amicus
Americans for Forfeiture Reform)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and
Bjorkman, Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
A trooper stopped appellant’s van for speeding and came to suspect that he was
transporting drugs. The trooper was unable to coordinate a dog sniff and released the van.
He relayed information to another trooper , who, approximately two hours later, stopped
the van for speeding, searched it, and discovered a substantial amount of marijuana. The
state charged appellant with first-degree sale and first-degree possession of marijuana. The
district court found appellant guilty of both offenses and formally adjudicated the sale
conviction. On a ppeal, a ppellant argues that he was subjected to unlawful stops, and
therefore the district court erred by refusing to grant his suppression motion . He also
challenges his sentence, arguing that the district court abused its discretion by failing to
grant a sentencing departure. We affirm.
FACTS
At around 3:20 p.m., on March 4, 2017, Trooper Anthony Schmidt stopped a van in
the Fergus Falls area for speeding and having an obstructed windshield. He approached
the passenger side and spoke primarily with th e driver, appellant Zong Lee, though he
briefly conversed with the passenger, M.V., whom appellant identified as a friend.
After the trooper explained the reason for the stop , he asked appellant about the
purpose of his trip. Appellant explained that he was driving to Minnesota to attend a family
gathering. Appellant provided a driver’s license and insurance information. He had an
Alaska license, but the van had Washington plates. While talking to appellant, the trooper
saw numerous boxes in the back of the van, sealed with tape and labeled “Sunny”; a sheet

3
of plywood blocking the window behind the driver’s side window; and multiple air
fresheners hanging in the back of the van. The trooper inquired as to the contents of the
boxes, and appellant stated that the y contained personal “stuff.” The trooper asked
appellant what kind of “stuff,” and appellant responded that he would rather not say and
that he wanted to “plead the Fifth.”
Trooper Schmidt returned to his squad car and ran appellant’s information. He
discovered that the van was not registered to appellant. Also, the insurance information
did not match the vehicle or driver, and when the trooper contacted the insurance company
to verify coverage, it came back to another party. Schmidt called the local canine officer,
Trooper Aaron Myren, explained the circumstances of the stop, and inquired about whether
Myren was available for a dog sniff. Myren said he was unavailable. Schmidt told Myren
that he would try another trooper, but if there was no available trooper , he would have to
let appellant go without further detention.
Trooper Schmidt generated a ticket and then returned to the van. He asked appellant
about the discrepancies with the title and insurance. Appellant told the trooper that he may
have an insurance card. Appellant looked for the card, but could not locate it. Based on
appellant’s claim that he had insurance, the trooper told appellant that he would change the
citation to not having proof of insurance in the vehicle , and h e explained how appellant
could provide proof to get the charge dismissed. The trooper asked how long appellant
would be in the Twin Cities area, and appellant stated three to four days and explained that
he was going to a Hmong ceremony.

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The trooper then inquired whether appellant had drugs in the van, and in reference
to the boxes, he asked, “Do you want to show me?” Appellant declined, but offered to
have a dog check the vehicle. Trooper Schmidt told appellant that he needed to amend the
ticket, and he returned to the squad car.
The trooper had a brief telephone conversation with another canine trooper about
availability, and printed a new ticket. The trooper brought the ticket to appellant, described
what he changed , and, again, explained how appellant could provide proof of insurance.
The trooper asked again about appellant’s destination and requested consent to search the
van. Appellant declined, and the trooper released the vehicle. The stop was approximately
35 minutes in length.
After the stop, Trooper Schmidt conveyed the circumstances of the stop to Trooper
Reed Bye, a canine handler and experienced drug -interdiction officer. Schmidt told Bye
to keep an eye out for the van. The van was travelling toward the Twin Cities on Interstate
94; Trooper Bye was assigned to the a rea between Trooper Schmidt’s location and the
Twin Cities. A few hours later, Trooper Bye noticed a van fitting the description.
At around 5:40 p.m., Trooper Bye stopped the van for speeding, at which point his
computer provided access to Trooper Schmidt’s notes. Trooper Bye approached the
passenger side of the vehicle and noticed: (1) numerous boxes in the back of the van with
the label, “N Sunny 25,” on them, with one box packaged with black duct tape; (2) the
window behind the driver’s window boarded up with plywood; (3) multiple air fresheners
placed in the vehicle; (4) M.V. appeared very nervous , including a noticeable rapid pulse
in his stomach and neck; and (5) there was a single key in the ignition.

5
Trooper Bye later testified that the “N Sunny 25” labeling was significant because
marijuana distributors use similar types of names to label their products . T he trooper
testified that his last arrest involved packaged marijuana labeled “Blueberry 19.” He also
testified that multiple air fresheners and a single key are indicators of drug activity , and
“black duct tape is very significant” to officers because “it conceals better in false
compartments.”
Trooper Bye asked appellant about the purpose of his travels, and appellant stated
he was going to visit his uncle, though he later clarified that he was going to a ceremony.
The trooper asked appellant why he had an Alaska license and Washington plates.
Appellant explained that he flew from Alaska to Washington, where he purchased the van.
When asked about the contents of the boxes, appellant stated that the boxes contained gifts.
Trooper Bye advised appellant that he was going to perform a canine sniff search,
and asked appellant for consent to search the van. Appellant declined. Trooper Bye had
his dog perform a sniff search, and the dog indicated that drugs were present. A subsequent
search of the boxes revealed a substantial amount of marijuana.
The state charged appellant with one count of first -degree sale of marijuana, and
one count of first-degree possession of marijuana. Appellant moved to suppress evidence
obtained from the stops. In June 2017, an omnibus hearing was held on appellant’s motion.
Testimony was received from Trooper Bye , but the matter was continued to address
discovery issues. At the continued hearing, additional testimony was received from Bye,
and squad video and photographs were taken into evidence. Testimony was also received

6
from Trooper Schmidt and Trooper Myren, and Schmidt’s squad video was taken into
evidence.
In March 2018, the district court filed an order denying appellant’s suppression
motion. The court concluded that both stops were lawful, neither trooper unlawfully
expanded the scope of his stop, and the stops, even in the aggregate, were not
unconstitutionally excessive in duration. The district court also concluded that the
coordinated aspect of the stops did not render them unconstitutional, n oting that the stops
were “based on separate traffic infractions,” and “[e]ach [t]rooper also expanded their
respective stops based on independent, reasonable suspicion.”
The parties agreed to submit the matter to the district court based on stipulated
evidence, pursuant to Minn. R. Crim. P. 26.01, subd. 4, in order to obtain appellate review
of the district court’s pretrial suppression ruling. In May 2018, the district court filed an
order finding appellant guilty of both charges. Appellant moved for a d ispositional or
durational sentencing departure. The district court denied appellant’s departure motion and
sentenced him to 56 months’ i mprisonment on the first -degree-sale charge. The court
acknowledged appellant’s respectful and cooperative demeanor, as well as the
demonstrated support from his family and community, but found the offense to be
significant, stating, “we don’t often get cases that have 160 pounds of marijuana.” This
appeal followed.

7
D E C I S I O N
I. The district court did not err by denying appellant’s suppression motion.

Appellant argues that his pretrial suppression motion should have been granted
because he was subjected to unlawful stops. His argument has three parts. First, he asserts
that Trooper Schmidt unlawfully expanded the scope of his traffic stop. Second, he argues
that Trooper Schmidt unlawfully prolonged that stop. Third, he contends that “the
coordinated double stop” of his vehicle by the two troopers was unconstitutional.
The United States and Minnesota Constitutions guarantee the right to be secure
against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. An officer may conduct a brie f investigatory stop of a person if the officer has a
reasonable, articulable suspicion that the person is engaged in criminal activity. State v.
Diede, 795 N.W.2d 836, 842 (Minn. 2011) (citing Terry v. Ohio , 392 U.S. 1, 19-21, 88
S. Ct. 1868, 1879-81 (1968)).
“Reasonable suspicion must be based on specific, articulable facts that allow the
officer to be able to articulate at the omnibus hearing that he or she had a particularized
and objective basis for suspecting the seized person of criminal activity. ” Diede, 795
N.W.2d at 842-43 (quotation omitted). In determining whether reasonable suspicion exists,
Minnesota courts “consider the totality of the circumstances and acknowledge that trained
law enforcement officers are permitted to make inferences and deductions that would be
beyond the competence of an untrained person.” State v. Richardson , 622 N .W.2d 823,
825 (Minn. 2001). But reasonable suspicion “requires at least a minimal level of objective
justification.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation omitted).

8
When reviewing pretrial orders on motions to suppress evidence, when the facts are
not in dispute, we independently review the facts and determine, as a matter of law, whether
the district court erred by not suppressing evidence. State v. Harris, 590 N.W.2d 90, 98
(Minn. 1999). “The [s]tate bears the burden of establishing that the challenged evidence
was obtained in accordance with the constitution.” State v. Edstrom, 916 N.W.2d 512, 517
(Minn. 2018), cert. denied, 139 S. Ct. 1262 (2019).
In determining the validity of a brief investigatory stop for a traffic violation, we
conduct a “Terry analysis,” which involves a dual inquiry. State v. Askerooth, 681 N.W.2d
353, 364 (Minn. 2004) (citing Terry, 392 U.S. 1 , 88 S. Ct. 1868). First, we ask whether
the stop was justified at its inception. Id. Second, we ask whether the officers’ actions
during the stop were “reasonably related to and justified by the circumstances that gave
rise to the stop in the first place.” Id. A stop is valid so long as “each incremental intrusion”
is “strictly tied to and justified by the circumstances which rendered the initiation of the
stop permissible.” State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012) (quotation omitted).
“[A]n intrusion not strictly tied to the circumstances that rendered the initiation of the stop
permissible must be supported by at least a reasonable suspicion of additional illegal
activity.” Id. Here, both stops were valid at their inception based on appellant ’s offense
of speeding, and we therefore focus on the expansions and coordinated nature of the stops.
See State v. George , 557 N.W.2d 575, 578 (Minn. 1997) (stating that an observed traffic
violation justifies a stop).

9
A. Trooper Schmidt did not unlawfully expand his traffic stop.
Appellant asserts that Trooper Schmidt unlawfully expanded the stop by asking him
what he was doing in Minnesota, and then, asking him what he had in the boxes. We reject
appellant’s assertion that these questions constituted an expansion of the stop. An officer
investigating a traffic violation by an out-of-state vehicle is justified in inquiring about the
driver’s intended destination and purpose. See United States v. Bloomfield, 40 F.3d 9 10,
915 (8th Cir. 1994) ; State v. Syha vong, 661 N.W.2d 278, 281 (Minn. App. 2003) . “An
officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not
convert the encounter into something other than a lawful seizure, so long as those inquiries
do not measurab ly extend the duration of the stop. ” Arizona v. Johnson , 555 U.S. 323,
333, 129 S. Ct. 781, 788 (2009). After appellant told the trooper that he was in Minnesota
for a family gathering, the trooper’s brief inquiry into the contents of the plainly observable
boxes was effectively a further inquiry into appellant’s purpose for travel. Trooper
Schmidt did not ask , at this early point in the stop, whether the boxes contained illegal
contraband. See Smith, 814 N.W.2d at 351 n.1 (rejecting state’s argument that a question
cannot constitute an expansion, and holding “e ven a single question, depending on its
content, could expand the scope of a traffic stop under other facts”).
Even if we concluded that the trooper’s question constituted an expansion, under
the totality of the circumstances, such an expansion was supported by reasonable ,
articulable suspicion of criminal activity. Appellant stated that he was driving to a family
gathering, yet his van carried numerous large boxes labeled “Sunny.” The trooper looked
for luggage in the van, but saw only a small bag, which , the trooper later testified “didn’t

10
look like much luggage for the duration of the trip.” The van had Washington plates, but
appellant’s driver’s license was from Alaska. A sheet of plywood bl ocked the window
behind the driver’s side window, and multiple air fresheners were hanging in the back of
the van. Given the totality of the circumstances, the trooper had a reasonable, articulable
suspicion to justify an inquiry into the contents of the boxes. The reasonable-suspicion
standard is “not high.” Diede, 795 N.W.2d at 843 (quotation omitted).
Appellant argues that the vehicle’s license plate and his origin of travels and state
of residence cannot factor into a reasonable-suspicion determination. He points to a federal
appellate decision, Vasquez v. Lewis , to support that proposition. 834 F.3d 1132, 1138
(10th Cir. 2016) (“It is wholly improper to assume that an individual is more likely to be
engaged in criminal conduct because of his state of residence.”). However, Vasquez is
distinguishable. In justifying the search of a vehicle, the officers in Vasquez relied heavily
on the fact that the driver was from Colorado, which they considered a drug-source area.
Id. at 1136-37. The Vasquez court deemed this justification unconvincing because “[s]uch
a factor is so broad as to be indicative of almost nothing.” Id. at 1137 (quotation omitted).
Here, t he suspicious circumstance was not the state of origin, but rather the apparent
inconsistency between appellant’s residence and the origin of the van, as well as the
apparent inconsistency between appellant’s stated purpose of travel and the contents of the
van. Under the totality of the circumstances, the trooper was justified in inquiring about
the contents of the boxes.

11
B. Trooper Schmidt did not unlawfully prolong his traffic stop.

Appellant argues that Trooper Schmidt unlawfully prolonged the stop. “[A]n
extension of the duration of a stop beyond the time necessary to effectuate the purposes of
the stop is unreasonable.” Askerooth, 681 N.W.2d at 371.
As previously discussed, Trooper Schmidt had reasonable, articulable suspicion to
inquire about the contents of the boxes in appellant’s van. When asked about the contents,
appellant stated that he wanted to “plead the Fifth.” After returning to his squad car, the
trooper discovered that the van was not registered to appellant , and the insurance
information did not match the vehicle or driver. These additional circumstances permitted
the trooper to further detain the van to investigate the registration and insurance , to make
further inquiries into appellant’s destination, to make further inquiries into the contents of
the boxes, and to make efforts to obtain a canine.
Appellant cites a Supreme Court opinion, Rodriguez v. United States, to support his
argument that Trooper Schmidt’s stop was unconstitutionally excessive in duration. 135
S. Ct. 1609 (2015). However, in Rodriguez, the Supreme Court did not consider whether
the expansion of a traffic stop was supported by reasonable suspicion independent from
the basis for the stop. Id. at 1616 -17 (“ The question whether reasonable suspicion of
criminal activity justified detaining Rodriguez beyond completion of the traffic infraction
investigation, therefore, remains open for Eighth Circuit consideration on remand.”). Here,
the trooper developed reasonable, articulable suspicion , independent of the traffic
violation, to expand the duration of the stop.

12
C. The communications between Trooper Bye and Trooper Schmidt did
not render Trooper Bye’s stop and search of appellant’s vehicle
unconstitutional.

Appellant claims that the coordinated aspect of the stops by Trooper Schmidt and
Trooper Bye was unreasonable. While neither party cites Minnesota caselaw precisely on
point, federal caselaw recognizes a heightened scrutiny to certain successive stops. In
United States v. Foreste , the Second Circuit Court of Appeals warned against a sort o f
“gamesmanship” by officers making successive stops based upon the same reasonable
suspicion:
One officer could stop a vehicle for a traffic infraction on a
common drug corridor, become suspicious of the driver ’s
nervousness or explanation for his trip, and then detain the
vehicle while a drug-sniffing dog is called to the scene. If the
dog took too long to arrive (or, upon arriving, failed to detect
any drugs), the officer could telephone a second officer down
the road and apprise him of the situation. The second officer
could then follow the vehicle until spotting a second traffic
infraction, stop the vehicle, and, based on the suspicions
relayed by the first officer, detain the vehicle a second time to
again wait for a dog.

780 F.3d 518, 525 (2nd Cir. 2015) (footnote omitted). The Foreste court held that, “where
the same suspicion justifies successive investigations, and the officer conducting the
subsequent investigation is aware of the prior investigation and the suspicion that supported
it, the investigations’ duration and scope must be both individually and collectively
reasonable under the Fourth Amendment.” Id. (footnote omitted); see also United States
v. Ilazi, 730 F.2d 1120 , 1125 (8th Cir. 1984) (i ndicating that some stops should be
considered collectively).

13
We recognize that two independently reasonable stops may collectively become
unreasonable. But w hen, as here, a second officer learns of suspicious behavior , but
initiates a stop based upon in dependent reasonable, articulable suspicion , and each
intrusion made by that second officer is likewise supported by independently gathered
reasonable, articulable suspicion, then the actions of that second officer are reasonable.
See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996) (“Subjective
intentions play no role in ordinary, probable -cause Fourth Amendment analysis. ”);
Foreste, 780 F.3d at 525 (stating that the question of whether reasonableness should be
evaluated individuall y or in combination “depends not on the officers ’ subjective
motivations but on whether the investigatory detentions were based on the same or
independent reasonable suspicion”).
The district court found credible Trooper Bye’s testimony that he stopped appellant
for speeding and expanded the scope of that traffic stop based upon his own observations.
See State v. Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012) (stating that this court defers
to a district court’s credibility determinations when reviewing a pretrial order on a motion
to suppress evidence). Though acknowledging that he was aware of Trooper Schmidt’s
shared information, Trooper Bye testified that he had “to see [his] own observations, [his]
own thing” before expanding the stop into a drug in terdiction because “basically it’s [his]
traffic stop, and [he has] to defend it.” The communications between Trooper Bye and
Trooper Schmidt did not render Trooper Bye’s stop unconstitutional.
Appellant argues that Trooper Bye lacked independent reasonab le, articulable
suspicion to expand his traffic stop and conduct a dog sniff. We disagree. Under the

14
totality of the circumstances, Trooper Bye acted upon reasonable, articulable suspicion.
These circumstances included: (1) numerous boxes labeled “ N Sunny 25”; (2) a window
boarded up with plywood; (3) multiple air fresheners; (4) M.V.’s nervous appearance; (5) a
single key in the ignition; and (6) appellant’s explanation that he flew from Alaska to
Washington and purchased the van to drive to Minnesota. Trooper Bye expanded his stop
based upon independently gathered reasonable, articulable suspicion of criminal activity.
II. The district court did not abuse its discretion by refusing to grant a sentencing
departure.

Appellant next argues that the district court abused its discretion by refusing to grant
a sentencing departure. Appellant received a bottom -of-the-box sentence, that is, a
sentence at the low end of the presumptive range. See Minn. Sent. Guidelines 4.C (2016).
A presumptive sentence is presumed to be appropriate. Minn. Sent. Guidelines 2.D.1
(2016) (“The sentences provided in the Grids are presumed to be appropriate for the crimes
to which they apply.”). The district court must impose the presumptive sentence unless
there are “substant ial and compelling circumstances” that warrant a departure. State v.
Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
The decision to depart from the sentencing guidelines rests within the district court’s
discretion and will not be reversed unless there was a clear abuse of that discretion. State
v. Oberg, 627 N.W.2d 721, 724 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).
“[A]s long as the record shows the [district] court carefully evaluated all the testimony and
information presented before making a d etermination,” we will not interfere with the

15
district court’s decision to impose the presumptive sentence. State v. Pegel, 795 N.W.2d
251, 255 (Minn. App. 2011) (quotation omitted).
We first address appellant’s request for a dispositional departure . D ispositional
departures generally focus on the characteristics of the offender. See State v. Solberg, 882
N.W.2d 618, 623 (Minn. 2016). “ A defendant ’s particular amenability to probation
justifies a district court ’s decision to stay the execution of a presumptively executed
sentence.” State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). A “defendant’s age, his
prior record, his remorse, his cooperation, his attitude while in court, and the support of
friends and/or family, are relevant to a determinati on whether a defendant is particularly
suitable to individualized treatment in a probationary setting.” State v. Trog, 323 N.W.2d
28, 31 (Minn. 1982).
Appellant notes that he was 36 years old at the time of the offense, this was his first
criminal offense, he had no prior drug history, he only engaged in the criminal activity to
support his wife and children, and he was exceptionally cooperative and showed remorse.
The record also indicates that appellant had a strong support system. N umerous letters
were submitted on his behalf at sentencing. While the re is support for a disposi tional
departure, the district court did not abuse its discretion by refusing to grant one. “Even if
we might have come to a different conclusion had we been weighing the eviden ce
ourselves, that is not the applicable st andard upon appellate review.” State v. Stempfley ,
900 N.W.2d 412, 419 (Minn. 2017).

16
The presentence -investigation report recommended that appellant receive 65
months’ imprisonment, a middle -of-the-box sentence. At sentencing, the district court
stated:
I know you’re a good man. I know you’ve got incredible
community support. I’ve read every one of these letters, which
is why I asked the clerk to call your case last so I could finish
the last two letters that I wanted to see. You are so well —
loved, so well—respected, this is so out of character for what
happened.”

But the district court then concluded, “I just can’t ignore 160 pounds.”
In State v. Chaklos, the supreme court noted that offense-related factors may be used
to support dispositional departures, and ultimately concluded that an upward dispositional
departure was justified because the defendant’s conduct was “ significantly more serious
than that typically involved in the commission of the offense in question.” 528 N.W.2d
225, 228 (Minn. 1995). Here, the district court considered the relevant information
presented, as well as the severity of the offense, and concluded that a presumptive sentence
was appropriate. We will not interfere with that decision. See Pegel, 795 N.W.2d at 255.
The district court did not abuse its discretion by refusing to grant a dispositional departure.
We next address appellant’s request for a durational departure. “The general issue
that faces a sentencing court in deciding whether to depart durati onally is whether the
defendant’s conduct was significantly more or less serious than that typically involved in
the commission of the crime in question.” State v. Cox , 343 N.W.2d 641, 643 (Minn.
1984).

17
Appellant asserts that a durational departure was justified because he was
“motivated by financial duress,” and there was no evidence to indicate that he was involved
in larger drug-distribution efforts. The district court concluded that the significant amount
of marijuana warranted a presumptive sentence . The district court did not abuse its
discretion by refusing to grant a durational departure.
Affirmed.