State of Minnesota, Appellant,

This opinion will be unpublished and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
A18-1824

State of Minnesota,
Appellant,

vs.

Eric Jon Prochnow,
Respondent.

Filed April 8, 2019
Affirmed
Rodenberg, Judge

Nobles County District Court
File No. 53-CR-18-159

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

Kathleen A. Kusz, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistan t Nobles County Attorney, Slay ton, Minnesota (for
appellant)

Jacob M. Birkholz, Michelle Olsen, Birkholz & Associates, LLC, Mankato, Minnesota (for
respondent)

Considered and decided by Reilly , Presiding Judge; Rodenberg, Judge; and
Bratvold, Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this pretrial appeal, appellant State of Minnesota argues th at the district court
erred by granting respondent Eric Jon Prochnow’s motion to suppress the marijuana seized
during a vehicle search after a traffic stop and by granting respondent’s derivative motion
to dismiss controlled-substance charges. The state argues that the officer had a reasonable
articulable suspicion of drug-related activity sufficient to expand the duration and scope of
the initial traffic stop. Because the record supports the district court’s findings and because
the district court properly applied the law, we affirm.
FACTS
Minnesota State Patrol Trooper Christensen was patrolling Highway I-90 when he
observed a van that he believed was “following too closely” beh ind another vehicle.
Trooper Christensen followed the van and determined that it pas sed a stationary roadside
object only 1.44 seconds after the vehicle it was following. B ecause several Minnesota
publications recommend a three- second following distance to be reasonable at interstate
speeds, Trooper Christensen deemed the van to be following too closely to provide the
driver enough time to safely react should the lead vehicle stop . Trooper Christensen also
observed that the van’s rear license plate was partially obstructed by a dealer-issued border
cover. Trooper Christensen activ ated his emergency lights and signaled the van to pull
over. It did so, and respondent was identified as the driver o f the van. The stop and
subsequent developments were recorded—audio and video—by the squad car recorder.

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After pulling the van over, Trooper Christensen ran a computer c h e c k o f t h e
California license plate. Trooper Christensen approached the b ack of the van, where he
peered into the back of the va n. Trooper Christensen saw littl e or no luggage from his
viewpoint, saw that the seats were folded down, and observed multiple dogs inside the van.
Trooper Christensen noted that pillows and blankets were strewn about the back of the van
and that the van appeared “lived in.” Respondent’s girlfriend, B.G., was in the passenger’s
seat with a dog on her lap.
Trooper Christensen told respondent that the traffic stop was f or an obstructed
license plate. Respondent initially handed Trooper Christensen his Department of
Homeland Security ID card, but als o produced his California dri ver’s license, insurance
information, and vehicle registration. Trooper Christensen noted that the van had recently
been insured. He told respondent that he would be ticketed for the obstructed license plate,
and asked respondent to get out of the van to see the obstructi on. As respondent did so,
Trooper Christensen noted audibly, apparently to himself, that the van had “[f]our dogs, no
luggage, lived-in look .” Trooper Christensen showed respondent the license-plate
obstruction and asked respondent to wait in the front seat of t he squad car while Trooper
Christensen wrote a warning ticke t. Trooper Christensen testif ied that such warnings
typically take 12 minutes to complete.
Trooper Christensen was suspici ous of appellant and B.G., but w as unable to
identify any specific ongoing criminal activity. Trooper Christensen requested a criminal
history for respondent, which takes 10 to 12 minutes and which he agreed is not normally
part of issuing a warning for an obstructed license plate. Whi le seated in the squad car,

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Trooper Christensen began asking respondent questions “about hi s travel plans, life in
Minnesota and California, luggage in the van or lack thereof, h is traveling companion,
employment,” potential criminal history, 1 and other investigative questions. Respondent
said that he and B.G. were going to visit his ill mother in Apple Valley for several weeks,
they planned to stay in a hotel, and his mother was not expecti ng them. Trooper
Christensen’s report stated that during the squad-car interacti on, he noticed that
respondent’s “voice trembled, his carotid artery pounded and his eyes were bloodshot and
w a t e r y , ” a n d t h a t t h e r e w a s “ d i stinct marked reddening of the c onjunctiva which is
consistent with marijuana users.” Trooper Christensen did not believe respondent was
under the influence of marijuana at the time of the stop. He t hought respondent “had an
unkept [sic] look as his clothes were dirty and that he had not bathed for several days.”
Around 18 minutes into the traffic stop, Trooper Christensen to ld respondent that
he would verify the vehicle identification number (VIN) before completing the warning
ticket. Trooper Christensen then returned to the passenger’s s ide of the van, where he
questioned B.G. about their travel plans. B.G. confirmed all of the details that respondent
provided, with the exception that she told the trooper that res pondent’s mother was
expecting them. Trooper Christe nsen then “checked” the VIN on the driver’s side of the
van before returning to the squa d car, where he informed respon dent that a leaf was
blocking the VIN and should be removed. In its order, the district court found that “[i]t is

1 The district court’s order mistakenly indicates that Trooper C hristensen’s questioning
about respondent’s criminal history took place later than is depicted on the squad recording.
It appears that this error in the district court’s timeline res ulted from its adoption of the
order of events set forth in Trooper Christensen’s report.

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unknown if the VIN was actually visible by [Trooper] Christensen or if he actually cross-
referenced the VIN.”
Over 20 minutes after the initial stop, Trooper Christensen finally gave respondent
a warning ticket. Before respond ent had a chance to exit the s quad car, Trooper
Christensen asked respondent if he would answer some questions. Respondent agreed.
Trooper Christensen later acknowledged that, in his mind, “the stop was not over,” and that
he “made [respondent] feel like he was able to leave to turn th e situation to a consensual
encounter.” Trooper Christensen directly questioned respondent about the presence of
contraband in the van, which respondent denied. Trooper Christ ensen then asked for
consent to search the van, and respondent told him that the van belonged to B.G. and that
Trooper Christensen would have to ask her permission to search it.
T r o o p e r C h r i s t e n s e n w e n t t o t h e v a n , w h e r e h e a s k e d B . G . i f t h er e w a s a n y
contraband in the van—which B.G. denied—and then asked permission to search her van.
B.G. initially agreed to the search, but immediately asked if she had to consent to a search
and stated that she would “rather not” have Trooper Christensen conduct a search. Trooper
Christensen told B.G. that she did not have to consent to a sea rch but that, if she did not
consent, he would detain her a nd respondent in order to perform a dog sweep of the car.
B.G. did not consent to either a search of the van or a dog sweep of it.
Trooper Christensen got his trained dog from the squad car and wa l ke d t he do g
around the van twice. The dog alerted at the rear of the van on the second lap. Trooper
Christensen then searched the v an and found a duffle bag contai ning 12 pounds of
marijuana. Respondent and B.G. were arrested.

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Respondent and B.G. were charged with one count of third-degree sale of five
kilograms or more of marijuana in violation of Minn. Stat. § 15 2.023, subd. 1(5) (2016),
and one count of fifth-degree possession of marijuana (not smal l amount) in violation of
Minn. Stat. § 152.025. subd. 2(1) (2016). Respondent and B.G. requested a “joint
consolidated contested omnibus h earing” because they had “ident ical legal issues for the
hearing.” At the omnibus hearing, Trooper Christensen testified that the squad video would
accurately reflect the events that occurred during the stop.
The district court made very detailed findings, relying “heavi ly on the squad
video . . . which, as [Trooper] C hristensen testified, would be the best evidence of what
actually occurred during the stop.” The district court noted that some items of information
“referenced during testimony and in the incident report appear strikingly different when
the [district] court reviewed the squad video.” In its order, the district court found that,
while Trooper Christensen was justified in stopping respondent for a traffic violation, the
evidence did not support the existence of a reasonable articula ble suspicion sufficient to
warrant the trooper expanding the duration or scope of the traffic stop. Consequently, the
district court denied respondent’s motion to suppress the evide nce based on an unlawful
traffic stop, granted respondent’s motion to suppress the evide nce based upon Trooper
Christensen’s unlawful expansion of scope and duration of the traffic stop, and dismissed
the complaint.
This pretrial appeal by the state followed.

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D E C I S I O N
As a preliminary matter, in an appeal by the state of a pretria l order, this court will
only reverse if the state can “ clearly and unequivocally show b oth that the trial court’s
order will have a critical impact on the state’s ability to pro secute the defendant
successfully and that the order constituted error.” State v. Zanter, 535 N.W.2d 624, 630
(Minn. 1995) (quotation omitted); see Minn. R. Crim. P. 28.04, subds. 1(1), 2(2)(b). A
district court’s dismissal of a c omplaint meets the critical-im pact requirement. State v.
Mike, 919 N.W. 103, 107 (Minn. App. 2018), review granted (Minn. Nov. 13, 2018). The
only disputed issue on appeal is whether the district court’s p retrial dismissal order was
erroneous.
Both the United States and Minnesota Constitutions prohibit unreasonable searches
and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10 . “Generally, warrantless
searches are per se unreasonable.” State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008).
The United States Supreme Court h as determined that “[t]emporar y detention of
individuals during the stop of an automobile by the police, eve n if only for a brief period
and for a limited purpose, constitu tes a ‘seizure’ of ‘persons’ within the meaning of this
provision.” Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772 (1996)
(citations omitted).
“Ordinarily, if an officer observes a violation of a traffic law, however insignificant,
the officer has an objective basis for stopping the vehicle.” State v. George, 557 N.W.2d
575, 578 (Minn. 1997). Even if a traffic stop is valid at its inception, the stop may become
invalid if “it becomes intolerable in its intensity or scope.” State v. Askerooth, 681 N.W.2d

8
353, 364 (Minn. 2004) (quotation omitted). An officer can expa nd the scope of a stop to
include investigation of additiona l criminal activity “only if the officer has reasonable,
articulable suspicion of su ch other illegal activity.” State v. Wiegand , 645 N.W.2d 125,
135 (Minn. 2002). “Evidence obtained as a result of a seizure without reasonable suspicion
must be suppressed.” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011).
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.” Gauster, 752 N.W.2d at 502 (quotation
omitted).
In his briefing to this court, r espondent argued that the init ial traffic stop was not
valid. At oral argument, however, respondent withdrew that argument. Consequently, we
do not review the district court’s conclusion that the initial stop was valid.
The state contends generally that the district court erred in determining that Trooper
Christensen unlawfully expanded the scope and duration of the t raffic stop. The state
argues that, under the low reasonable-suspicion standard, Troop er Christensen’s stated
reasoning, taken in totality, dem onstrates that Trooper Christe nsen had reasonable
articulable suspicion of drug-smuggling activity. We disagree.
As noted, the district court made very detailed findings of fa ct to support its
determination that Trooper Christensen did not have a reasonable articulable suspicion of
criminal activity when he expanded the scope of the stop. The district court noted that
“some of these indicators refere nced during testimony and in th e incident report appear
strikingly different” when compared to the squad car recording. The district court found

9
that, upon “[r]eviewing the squad video, the [district] court c annot [discern] such
nervousness that would equate to suspicion.” The district cour t observed from the video
recording that respondent was “ quite calm and willing to comply with questions asked.”
The district court described respondent as appearing
unkempt and a little weary, but his responses to the officer’s
questions are immediate and appropriate. He does not appear
to [be] under the influence of alcohol or drugs, and is overall
appropriate and talkative with [Trooper] Christensen.
[Respondent’s] appearance is mo stly unremarkable and does
not reveal extreme nervousness beyond what one would expect
with a person seated in the front seat of a squad car.

The district court also found that:
While the warning was being draf ted in this case, which . . .
takes time to review materials , [respondent] was subject to
questioning about a number of t opics aside from the license
plate obstruction. Although some of it was conversational,
review of the squad video indi cates, [Trooper] Christensen
was clearly searching for more information that would support
his initial hunch.

(Emphasis added.) Ultimately, the district court found that “[b]ased on the testimony and
evidence, it is clear that the officer was determined to find some justification to enter into
and search [respondent’s] vehicle.”
The record supports the district court’s findings. At the omn ibus hearing, Trooper
Christensen stated that he observed “multiple indicators” that there “was probably criminal
activity going on.” But Trooper Christensen was unable to articulate what criminal activity
he suspected. He testified as follows:
CHRISTENSEN: There [were] multiple indicators initially
right off the bat that led me to believe that there was probabl y
criminal activity going on.

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RESPONDENT’S COUNSEL: Okay. Um, criminal activity.
Can you be any more specific? What criminal activity were
you suspecting based on your initial approach to the vehicle?
CHRISTENSEN: There’s no way for me to know unless I ask
him more questions.

(Emphasis added.) The district court’s findings of fact are no t clearly erroneous, and are
supported by the squad car video and the officer’s admitted ina bility to have discovered
any particular criminal activity before expanding the scope of the stop.
The state argues that Trooper Christensen observed multiple in dicators that, in the
totality of the circumstances, support a finding of reasonable articulable suspicion. But
Trooper Christensen engaged in multiple expansions of a traffic stop, including questioning
the passenger about things (which had no relation at all to the traffic stop), questioning
respondent about his criminal history beyond active warrants, a nd resumed questioning
after the warning ticket was issued. This is not a case of one pinpointed time of expansion
of the traffic stop. The record supports the district court’s finding that the trooper was
“clearly searching” for support fo r his initial “hunch” and was “determined to find some
justification to enter into and search” the van.

Importantly, and as noted above, Trooper Christensen essential ly admitted at the
omnibus hearing that he was acting on a “hunch” of ongoing criminal activity and wanted
to expand the scope of the traffic stop to confirm his suspicio ns. Many of the factors on
which the state seems to rely to support its argument that there was reasonable articulable
suspicion to expand the stop, and which we do not address here, a r o s e a f t e r T r o o p e r
Christensen had already unlawfully expanded the scope and duration of the traffic stop.

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Taken to its logical conclusion, the state’s argument boils dow n to this: as long as
an experienced officer cites some facts in support of some gene ralized suspicion, the
district court must defer to the officer’s determination that e xpansion of a traffic stop is
lawful. That is not the law; deference is one thing and abdica tion is another. The record
supports the district court’s fi ndings of fact, and we affirm i ts order suppressing the
evidence and dismissing the complaint.
Affirmed.