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This opinion will be unpublished and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
A19-0845

State of Minnesota,
Respondent,

vs.

Irwin James Sam,
Appellant.

Filed April 27, 2020
Affirmed
Reilly, Judge

Mille Lacs County District Court
File No. 48-CR-18-1059

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

Joseph J. Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

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

Randall Tietjen, Charlie Gokey (pro hac vice), Robins Kaplan LLP, Special Assistant
Public Defenders, Minneapolis, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this direct appeal from final judgment, appellant argues that his conviction for
possession of a firearm by an ineligible person must be reversed because the district court
erred by holding that a state trooper’s observations during an investigatory stop established
reasonable, articulable suspicion of illegal activity to support questioning appellant about
drug use or possession, and then frisking him. Appellant also argues that the district court
erred by holding that a state trooper’s suspicion that he had used or possessed drugs entitled
the trooper to assume that appellant was armed and dangerous. Because the district court
did not err, we affirm.
FACTS
A state trooper followed a car into a casino parking lot after seeing it roll through a
stop sign . The trooper had also noticed that a backseat passenger was not wearing a
seatbelt. As the trooper caught up to the car, the driver quickly signaled a left turn and
went down the next parking row. This heightened the trooper’s “suspicion that the vehicle
was trying to turn off immediately upon [him] getting behind it.” The car parked, its doors
opened, and two passengers began to “exit quickly.” The troope r pulled up and parked,
told the passengers that he wanted to talk to them , and got out as the car’s driver did the
same.
Based on previous criminal investigations at or near the casino, the trooper
considered it to be a “high-crime area involved in lots of drugs and weapons.” The trooper
knew that day was “payday for [band] members of the area,” which in his experience,

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correlated to “an uptick in drug -related and weapon -related crimes,” because “[d]rug
dealers [would] often flood the area . . . because people have money to then purchase drugs
and illegal items.”
The trooper noticed that the driver and passengers had bloodshot eyes and appeared
pale, which he recognized as signs of recent drug use. One passenger kept putting he r
hands in her pockets, and both passengers were “repeatedly looking around and shifting on
their feet.” The trooper identified the driver as appellant Irwin James Sam and the male
passenger as M.N. The trooper was acquainted with M.N., having previously found him
in possession of methamphetamine during a traffic stop . The trooper knew from other
officers that M.N. was known to carry weapons, and knew that M.N. had previously been
arrested for drugs, which resulted in a search warrant for guns.
As the trooper spoke with appellant, who was “standing in the doorframe” of the
car, appellant was “repeatedly putting his hands in his pockets and was shifting around on
his feet, [and] not looking at [ the trooper].” Appellant “kept glancing around” and “kept
looking back into the vehicle.” This concerned the trooper, because in his training and
experience, “people will often either touch areas or use their eyes to look at areas where
there may be something illegal . . . it’s something – a cue [police officers] look for in law
enforcement when someone is either armed on their person or there’s maybe illegal it ems
in a vehicle.”
Looking through the driver’s open door, the trooper saw a canister of butane fuel to
the left of the driver’s seat, which “caught [his] attention” because he commonly sees
butane fuel “in vehicles and o n people that are drug users.” In response to the trooper’s

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question, the driver and passengers denied that there was any “dope” in the car. When the
trooper confronted the individuals about the butane fuel and its known associat ion to drug
use, they laughed.
Suddenly, appellant’s “demeanor completely changed.” Appellant “attempt[ed] to
aggressively move towards [the trooper] and then start[ed] to pull the door shut on [him].”
At that point, the trooper became concerned that appellant was armed and dangerous. The
trooper informed appellant that he was going to pat search him. At some point, appellant
shut and locked the door. Appellant again reached down to his right pocket, and the trooper
commanded him to stop reaching for his right side.
The trooper frisked appellant and felt a bullet in his right front pocket. The trooper
removed the bullet and asked if there were any weapons in the car. Appellant disclaimed
any knowledge about the contents of the car. The trooper again observed appellant
reaching around his pocket area. The trooper commanded appellant to stop reaching for
his pocket and again asked him if there were any guns in the car, which appellant denied.
The trooper placed appellant in handcuffs and told him that he was detained but not under
arrest. The trooper again asked appellant if there were guns in the car, and appellant said
there were guns under the driver’s side floor mat. The trooper advised appellant of his
Miranda rights, searched the car, and recovered two pistols from unde r the driver’s side
floor mat.
Respondent State of Minnesota charged a ppellant with three counts of possession
of a firearm by an ineligible person under Minn. Stat. § 609.165, subd. 1b (2016).
Appellant moved to suppress all evidence obtained during the search of his car. The district

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court denied appellant’s motion to suppress. Following a stipulated-facts trial, the district
court found appellant guilty of all three counts. Appellant was convicted and sentenced to
60 months’ imprisonment. This appeal follows.
D E C I S I O N
The district court did not err when it found that there was reasonable suspicion of
illegal activity to justify expanding the scope of the stop by questioning appellant
about drug use and possession.

“Generally, warrantless searches are per se unreasonable.” State v. Gauster , 752
N.W.2d 496, 502 (Minn. 2008). “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) . An officer may then expand a traffic stop if each
incremental intrusion is tied to and justified by “(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). Reasonable, articulable suspicion requires
that the officer identify “specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1,
21, 88 S. Ct. 1868, 1880 (1968). The reasonable, articulable suspicion standard is satisfied
when an officer observes conduct that leads him to reasonably conclude , based on his
experience, that criminal activity may be afoot. State v. Timberlake, 744 N.W.2d 390, 393
(Minn. 2008) (quotation and citation omitted). When reviewing a pretrial order on a
motion to suppress evidence, an appellate court reviews the district court’s factual findings
for clear error and its legal determinations de novo. State v. Ortega, 770 N.W.2d 145, 149
(Minn. 2009).

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Appellant does not challenge the initial stop. Rather, appellant contends that the
trooper illegally expanded the scope of the traffic stop by investigating whether appellant
used or possessed drugs. At the outset, we note that the district court stated it was “not
completely clear at what point [appellant] allege [d] the expansion of the stop occurred”
and focused its initial analysis on appellant’s contention that the seizure of the vehicle’s
occupants was beyond the scope of the initial stop. And although unclear to us as well, it
appears that appellant, in his pretrial motion to suppress, may have challenged both the
seizure and the subsequent expansion of the stop based on the trooper’s observations of
potential drug use or possession. While the district court may not have explicitly concluded
that the expansion of the stop was justified at the exact moment appellant now contends it
occurred, the district court made very thorough findings with regards to each “incremental
intrusion” and concluded that the trooper’s observations when “taken together constitute
sufficient reasonable, articulable suspicion to support the expansion of the stop.”
Appellant argues that the trooper’s observations in this case “fail to amount to
reasonable suspicion, whether examined separately or together” to justify the expansion of
the stop because sometimes, “zero plus zero plus zero adds up to zero. ”1 United States v.
Billups, 442 F.Supp.2d 697 , 699 (D. Minn. 2006). Specifically, appellant focuses on the

1 In Billups, the indicators of criminal behavior relied on by the government included:
(1) the fact that Billups was driving slightly under the speed limit (65 -67 mph in a 70 mph
zone); (2) the car driven by Billups had tinted back windows (legally tinted, given that the
car was licensed in Colorado); (3) Billups drove with two hands on the steering wheel;
(4) Billups’s seat was pushed back so that his head was obscured by the “B” pillar
separating the driver’s side windows; and (5) Billups did not make eye contact with the
trooper when he passed him. 442 F.Supp.2d at 698.

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following circumstances, arguing that none of them, whether examined separately or
together, amount to reasonable suspicion to justify expanding the scope of the stop:
(1) a ppellant’s presence in a “high -crime” area; (2) appellant’s nerv ous behavior;
(3) appellant’s bloodshot eyes, pale skin, and possession of butane fuel; and (4) appellant’s
proximity to an individual with a criminal record.2 Appellant asks this court to review and
reject each of the trooper’s individual observations. But this position is contrary to well -
established caselaw which directs Minnesota courts to determine whether reasonable
suspicion exists by considering the “totality of the circumstances.” State v. Smith, 814
N.W.2d 346, 351-52 (Minn. 2012) (“To be reasonable, the basis of the officer’s suspicion
must satisfy an objective, totality-of-the-circumstances test.”). We now turn to the factors
considered by the district court and argued by appellant to be insufficient to support an
expansion of the traffic stop.
(1) Appellant’s presence in a high-crime area
The trooper testified that in his experience the casino is a “high-crime” area around
“payday” because law enforcement tend to see “an uptick in drug -related and we apon-
related crimes” around that time. Appellant argues that his presence in the casino parking

2 Appellant also appears to argue that the trooper’s testimony regarding some of these
factors is not credible. However, the district court credited the trooper’s testimony and we
defer to the district court’s credibility determinations. See State v. Al-Naseer, 788 N.W.2d
469, 473 (Minn. 2010) (“[T]he trier of fact is in the best position to determine credibility
and weigh the evidence.”); State v. Dickerson , 481 N.W.2d 840, 843 (Minn. 1992)
(“[Appellate courts] accord great deference to the [district] court’s determinations
[because] . . . [t]he credibility of witnesses and the weight to be given their testimony are
determinations to be made by the factfinder.”).

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lot on payday does not support a reasonable suspicion of illegal activity, although he
concedes that his presence in a high -crime area may be considered in th e reasonable -
suspicion analysis. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000)
(noting that law enforcement is “not required to ignore the relevant characteristics of a
location in determining whether the circumstances are suffici ently suspicious to warrant
further investigation” and the fact that a stop occurred in a “high crime area” is “among
the relevant contextual considerations in a Terry analysis”). However, appellant argues
that his presence in a “high -crime area” is entit led to “limited weight in the reasonable
suspicion analysis.”
Here, it is unclear from its order how much weight the district court gave this
particular factor in the analysis as a whole, especially in light of the fact that the district
court cited several other reasons why the expansion of the stop was justified. Moreover,
none of the caselaw appellant cites indicates that presence in a high -crime area is entitled
to “limited weight in the reasonable suspicion analysis.” Accordingly, we discern no error
in the district court’s reliance on this factor as part of its reasonable-suspicion analysis.
(2) Appellant’s nervous behavior
Appellant argues that his nervous behaviors do not amount to reasonable suspicion
of illegal activity. 3 First, appellant argues that the trooper’s observations of appellant

3Appellant argues that the district court’s finding that the passengers were “looking at” the
trooper’s marked squad car cannot provide the requisite reasonable, articulable suspicion
because these observations were not “particularized” or “individualized” to appellant. We
need not reach this argument because even if appellan t is correct on this point, there are
other findings of nervousness that were “individualized” and “particularized” to appellant.

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“quickly pull[ing] down a parking row at the casino” and trying to quickly leave the parked
car are insufficient to establish reasonable suspicion. Appellant relies on State v. Schrupp
to support his position, arguing that this court in that case held there was no reasonable
suspicion justifying a search when a “driver pulled quickly into a driveway.” 625 N.W.2d
844, 848 (Minn. App. 2001) , review denied (Minn. July 24, 2001) . As an initial matter,
Schrupp dealt with the reasonableness of the stop, which appellant does not challenge here.
Additionally, this court did not conclude that the stop was unlawful because pulling quickly
into a driveway did not provide an officer with reasonable suspicion. Rather, we concluded
that the stop was unlawful because despite the officer believing that the driver “might be
trying to avoid [him], ” the officer “did not identify any inference of the possibility of
criminal activity.” Id. Appellant’s reliance on Schrupp is misplaced, and appellant does
not cite to any other relevant legal authority to support his position. As such, we reject
appellant’s argument.
Appellant next contends that his behaviors, including “excessive movement,”
repeatedly “looking around,” putting his hands in his pockets, “shifting around on his feet”
and repeatedly “looking back into the vehicle” are the types of nervous behaviors this court
and the supreme court have rejected as adequate bases for expanding a traffic stop because
nervous behavior cannot contribute to an officer’s reasonable suspicion of criminal
activity. We are not persuaded. In State v. Syhavong, 661 N.W.2d 278, 282 (Minn. App.
2003), this court determined that “an officer’s perception of an individual’s nervousness
may contribute to an officer’s reasonable suspicion, [but] nervousness is not sufficient by
itself and must be couple d with other particularized and objective facts.” (Emphasis

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added). As such, Syhavong stands for the proposition that nervousness may contribute to
an officer’s reasonable suspicion, as long as it is not the only factor relied on. We discern
no error in the district court relying, in part, on appellant’s nervous behaviors to conclude
that reasonable suspicion justified the trooper’s expansion of the stop.
(3) Appellant’s bloodshot eyes, pale skin, and possession of butane fuel
Appellant argues that his pale skin, bloodshot eyes and possession of butane fuel do
not amount to reasonable suspicion of illegal activity. Appellant first challenges the district
court’s factual findings regarding his pale skin and possession of butane fuel, implying that
those factual findings are erroneous because there were other plausible explanations for the
trooper’s observations presented at the hearing. However, just because appellant offered a
plausible alternative explanation, the district court, as fact -finder, was not required to
accept that explanation. State v. Larson, 393 N.W.2d 238, 241-42 (Minn. App. 1986).
Appellant also argues that Minnesota caselaw makes “clear that such weak indicia
of recent drug use are insufficient to justify the expansion of the traffic stop.” Appellant
relies on State v. Wiegand , 645 N.W.2 d 125 (Minn. 2002). In that case, Wiegand “was
evasive, nervous and had glossy eyes.” Id. at 137. Despite those observations, the supreme
court concluded there was no articulable basis to suspect criminal activity because , while
the officer indicated that Wiegand was acting suspiciously, the officer also had “no reason
to suspect drug-related activity” at the time he expanded the scope of the stop. Id.
Here, in contrast, the trooper observed appellant’s pale skin and bloodshot eyes and
saw butane fuel in the car . Based on these observations, the trooper’s suspicion that
appellant was involved in drug-related activity was objectively reasonable. As such, the

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instant case is distinguishable from Wiegand. Moreover, this court has relied on indicia of
drug or alcohol use such as bloodshot and watery eyes, and constricted pupils, when
considering reasonable suspicion in the context of impaired driving. See State v. Hegstrom,
543 N.W.2d 698, 702 (Minn. App. 1996) (holding that “the observed symptoms of some
type of intoxication, particularly the severely constricted pupils , plus the strong evidence
of inattentive driving” were sufficient to establish probable cause to believe the driver was
under the influence of a controlled substance); State v. Driscoll, 427 N.W.2d 263, 265
(Minn. App. 1988) (relying in part on driver’s bloodshot and watery eyes when determining
that probable cause existed). The district court did not err in relying, in part, on appellant’s
bloodshot eyes, pale skin, and possession of butane fuel in its reasonable -suspicion
analysis.
(4) Appellant’s proximity to individual with a criminal record
Appellant argues that his proximity to an individual with a criminal record does not
support a reasonable suspicion of illegal activity to justify expanding the stop. Specifically,
appellant takes issue with the district court’s finding that the trooper “recognized [M.N.]
as someone who has a criminal history involving guns and drugs” and relied on this, in part,
when concluding that reasonable suspicion justified expansion of the stop.
Citing State v. Diede , appellant argues that “[m]ere 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 contr olled substance.” 795 N.W.2d 836,
844 (Minn. 2011). In Diede, the supreme court concluded that Diede being in the same

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vehicle with a suspected drug dealer was insufficient to support a reasonable suspicion that
Diede possessed controlled substances. Id. at 845. However, contrary to appellant’s
assertion, the supreme court did not hold that courts may not consider a person’s proximity
to or association with a person with a known criminal history when it analyzes whether
reasonable suspicion exists. Rather, the supreme court, relying on United States Supreme
Court precedent, concluded that mere proximity, without more, is not enough to support a
reasonable suspicion of criminal activity. Id. at 852 (citing Ybarra v. Illinois, 444 U.S. 85,
91, 100 S. Ct. 338, 347 (1979)). Accordingly, the district court did not err in considering,
as one factor in its reasonable-suspicion analysis, appellant’s proximity to and association
with M.N.4
(5) Totality of the circumstances
Here, the district court considered all of the factors discussed above and determined
that under the totality of the circumstances, the trooper’s observations “constitute[d]
sufficient reasonable, articulable suspicion to support the expansion of the stop.” The
district court’s findings are supported by the record. And, based o n the totality of the
circumstances in this case, we conclude that the district court did not err in finding that

4 Appellant contends that the district court erred when it considered the identity of M.N. in
the analysis because his identity was obtained through an unlawful expansion of the traffic
stop and therefore the evidence of M.N.’s identity must be suppressed. However, “Fourth
Amendment rights are personal rights, which . . . may not be vicariously asserted.” Rakas
v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425 (1978) (quotation omitted). And, a “person
who is aggrieved by an illegal search and seizure only through the introduction of
damaging evidence secured by a search of a third person’s premises or property has not
had any of his Fourth Amendment rights infringed.” Id. Accordingly, we reject appellant’s
argument.

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reasonable suspicion supported the trooper’s expansion of the stop when he questioned
appellant about drug use and possession.
The district co urt did not err when it determined that the trooper’s frisk of
appellant’s person was justified under the circumstances.

Appellant argues that the trooper illegally expanded the scope of the stop when he
frisked him for weapons.5 “[D]uring a routine traf fic stop for a minor traffic violation, a
pat-down search is improper unless some additional suspicious or threatening
circumstances are present.” State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998). “[I]n
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 reasonably believes that suspect might be armed and dangerous.” State v.
Flowers, 734 N.W.2d 239, 250-51 (Minn. 2007) (summarizing holding of Terry, 392 U.S.
1, 88 S. Ct. 1868). “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 (citations omitted). When considering whether the officer acted reasonably under
the circumstances, “due weight must be given, not to his inchoate and unparticularized
suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw
from the facts in light of his experience.” Id. Appellant challenges both prongs of the frisk

5 Respondent argues that even if this court determines that the frisk of appellant’s person
was unlawful, this court may reach an issue the district court declined to reach: “whether
the inevitable discovery doctrine precludes application of the exclusionary rule.” Because
we conclude that the weapons were discovered as a result of a lawfully expanded stop, we
need not consider whether the inevitable discovery doctrine applies.

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analysis, arguing that there was no reasonable suspicion of criminal activity, and the record
does not establish that the trooper had a reasonable belief appellant was armed and
dangerous.
Regarding the first prong, we have already concluded that there was reasonable
suspicion to justify the trooper’s expansion of the stop when he questioned appellant about
his use or possession of drugs. And, because drug possession is criminal activity under
Minnesota law, see Minn. Stat. §§ 152.021-.027 (2018), we need not reconsider whether
there was reasonable suspicion of criminal activity under the first prong of the analysis.
Turning to the second prong, appellant contends that the district court erred when it
determined that appellant was armed and dangerous because “drugs and weapons are
commonly associated” and that suspicion of drug use or possession is insufficient to
establish a reasonable belief that a suspect is armed and dangerous. Appellant
mischaracterizes the district court’s order. The district court did not, as appellant contends,
base its conclusion entirely on the rationale that “drugs and weapons are commonly
associated.” Rather, the district court considered various factors.
In addition to the various factors discussed previously, the record shows that while
appellant and the trooper were standing in the doorframe of the vehicle, in response to the
trooper’s question regarding the butane fuel, appellant “attempt[ed] to aggressively move
towards [the trooper] and then start[ed] to pull the door shut on [him].” It was then that
the troop er believed appellant could be armed and dangerous. In addition, appellant
repeatedly put his hands in his pockets and the trooper told him to get his hands out of his

15
pockets. When t he trooper then informed appellant he was going to con duct a frisk,
appellant again reached to his right side pocket, and the trooper again gave him a loud
verbal command to not reach into his pocket. The trooper then frisked appellant for
weapons. Based on this record, we conclude there was adequate reason able suspicion to
justify the frisk.
We also note that the supreme court has recognized that a “substantial nexus exists
between drug dealing and violence.” State v. Lemert, 843 N.W.2d 227, 232 (Minn. 2014)
(citations omitted); see also State v. Ludtke , 3 06 N.W.2d 111, 113 (Minn. 1981)
(concluding frisk was justifiable where officer was alone on the highway with two people
who possessed marijuana, one of whom was seen making a furtive movement in the back
of the car). Therefore, we conclude that it was no t unreasonable for the district court to
consider the association between drugs and weapons as a factor in its analysis.
Finally, appellant argues that “[m]erely touching one’s pockets is anxious behavior
that provides little justification for a frisk.” Appellant relies on an unpublished decision,
State v. Peake, A16-0232, 2017 WL 393788, at *1 (Minn. App. Jan. 30, 2017), which is
not precedential, to support his position. See Dynamic Air, Inc. v. Bloch, 502 N.W.2d
796, 800 (Minn. App. 1993) (“ Unpublished opinions of the Court of Appeals are not
precedential.” ). And the supreme court has recognized that reaching for one’s pockets
is a factor justifying a frisk. See State v. Gannaway, 191 N.W.2d 555, 557 (Minn. 1971)
(“Gannaway’s reaching for h is outer coat pocket, even after being warned not to do so,
gave [the officer] reasonable cause to initiate a protective frisk for weapons.”) .
Accordingly, we reject appellant’s argument and conclude that under the circumstances of

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this case, the trooper was justified in expanding the scope of the stop by frisking
appellant for weapons.
Affirmed.