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This opinion will be unpublished and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
A19-0885

State of Minnesota,
Respondent,

vs.

Luis Gerardo Gonzalez-Perez,
Appellant.

Filed August 17, 2020
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Hennepin County District Court
File No. 27-CR-18-25432

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

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Bjorkman, Judge.

2
U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
Appellant challenges his convictions of three first-degree controlled-substance
crimes, arguing that the district court erre d by denying his motion to suppress evidence
because law enforcement impermissibly expand ed the scope of the traffic stop without
reasonable, articulable suspicion of criminal activity and by entering convictions on both
the more serious and a lesser-included offense. We affirm in part , reverse in part, and
remand.
FACTS
The relevant testimony presented at th e evidentiary hearing on the motion of
appellant Luis Gerardo Gonzalez-Perez to suppress evidence is as follows. On October 11,
2018, Officer Broc Bartylla was surveilling a Bloomington hotel for suspicious activity
because there had been calls about drugs and dr ug trafficking issues involving the hotel.
The hotel is located near I-35W and I-494, which Officer Ba rtylla identified as a major
drug corridor.
While on patrol, Officer Bartylla observe d a white vehicle parked in the hotel
parking lot. He was suspicious of the ve hicle because it had Texa s license plates and
Officer Bartylla testified he knew Texas to be a source location for narcotics; the vehicle
had multiple air fresheners hanging from the rearview mirror, which Officer Bartylla
testified can be related to drug activity as a means to mask the odor of drugs; and the vehicle
was parked in a secluded area in a far corner of the parking lot despite the availability of a
number of parking spots close to the entrance of the hotel. The ve hicle was running and

3
the sole occupant was a male in the driver’s seat. The driver avoided making eye contact
with Officer Bartylla and did not look at the squad car as it circled the parking lot.
Officer Bartylla left the parking lot and parked out of sight of the vehicle. The
vehicle exited the parking lot approximately five minutes later. After the driver failed to
signal more than 100 feet before making a tu rn, Officer Bartylla activated his emergency
lights and initiated a traffic stop. He identified the driver as Gonzalez-Perez. When Officer
Bartylla approached the vehicle, he noticed that there was a crack in the windshield and
that air fresheners obstructed the driver’s view. He also noticed that the vehicle contained
fast food wrappers, empty water bottles, very little luggage and only a single key in the
ignition. At Officer Bartylla’s request, Gonz alez-Perez provided an identification card
from Mexico and proof of insurance for the vehicle, but was not able to provide a driver’s
license.
Officer Bartylla contacted his partner, Of ficer Jose Rueda, to assist with the
interview because Gonzalez-Perez spoke little English and Officer Rueda is fluent in
Spanish. During the traffic stop, Gonzalez-Perez indicated that he had driven to Minnesota
from Texas and only made one stop along the way in order to sleep at a rest area. He stated
that he was there for two days to visit friends, but he could not name his friends or identify
their address, saying that it was on his phone. The officers asked for permission to search
the vehicle, and Gonzalez-Pere z consented. During the sear ch, Officer Bartylla did not
discover any contraband, but he did notice that there were loose bolts and tools on the floor
of the vehicle.

4
Based on his observations and the presence of the bolts, Officer Bartylla suspected
narcotics were being transported in a hidden compartment of the vehicle, but was unable
to conduct a thorough search because of the vehicle’s location on the side of a busy street.
He requested a K-9 unit to conduct a drug-sniff test, and the K-9 dog subsequently alerted
on the vehicle. The vehicle was towed to a ga rage, and a search of the vehicle revealed
four pounds of cocaine in the undercarriage of the vehicle.
Respondent State of Minnesota charge d Gonzalez-Perez with one count of
aggravated first-degree controlled-substance crime (sale), one count of first-degree
controlled substance crime (sale) and one count of first-degree controlled-substance crime
(possession). Gonzalez-Perez moved to suppress the results of the search of his vehicle,
arguing that law enforcement impermissibly e xpanded the search of his vehicle without
reasonable, articulable suspicion. Following an evidentiary hearing, the district court
denied the motion on the record. Gonzalez-Perez waived his right to a jury trial and agreed
to a court trial based on stipulated evidence. The district court found Gonzalez-Perez guilty
of all counts, entered multiple convictions, and sentenced him to 96 months in prison for
aggravated first-degree controlled-substance crime. Gonzalez-Perez appeals.
D E C I S I O N
I. The district court did not err by denying the motion to suppress.
Gonzalez-Perez challenges the district cour t’s denial of his motion to suppress the
evidence discovered during the search of his vehicle on the grounds that law enforcement
impermissibly expanded the scope of the stop , first, by asking perm ission to search the

5
vehicle and, second, by conducting a K-9 unit drug-sniff test on the vehicle. He does not
contest the validity of the initial stop of the vehicle based on the failure to signal a turn.
The legality of an expansion of a traffic stop beyond its original purpose is governed
by the same legal standard as the initial stop—whether the officer had reasonable,
articulable suspicion of criminal activity to support the expansion. State v. Wiegand, 645
N.W.2d 125, 135 (Minn. 2002). We review questions of reasonabl e suspicion de novo,
considering the totality of the circumstances. State v. Britton, 604 N.W.2d 84, 87 (Minn.
2000). An officer’s suspicion cannot be based on a hunch; it must be objectively reasonable
under the totality of the circumstances. State v. Smith, 814 N.W.2d 346, 351 (Minn. 2012).
We review the district court’s factual finding s for clear error and its legal determinations
de novo. State v. Gauster , 752 N.W.2d 496, 502 (Minn. 2008). Evidence discovered
during an invalid search must be suppressed. State v. Askerooth , 681 N.W.2d 353, 370
(Minn. 2004).
We turn first to the request for permission to search the ve hicle. In support of its
conclusion that the expansion was supporte d by reasonable, articulable suspicion, the
district court noted that Officer Bartylla is an experienced officer, having conducted
approximately 500 traffic stops and been involv ed in about 70 narco tics cases, including
cocaine cases. The district court also poi nted to a number of Officer Bartylla’s
observations in the hotel parking lot prior to the stop: the area is located along freeways
known to be a drug corridor and there have been calls related specifically to that hotel about
drugs and drug trafficking; the car was parked in an isolated area of the parking lot, even
though there were spaces available close to the hotel en trance; there were multiple air

6
fresheners hanging from the rear view mirror a nd air fresheners are consistent with drug
activity as an attempt to mask the smell of drugs from law enforcement and drug-sniffing
dogs; the vehicle had license plates from Texas, a known drug source state; and Gonzalez-
Perez avoided looking at the squad car while Officer Bartylla drove around the parking lot
and did not leave the parking lot until after Officer Bartylla had exited the parking lot and
parked out of view. Of the information obta ined by Officer Bartylla after the stop, the
district court found it “notewor thy in particular” that Gonz alez-Perez was “not able to
produce the names of his so-called friends that he was coming to visit” when he had driven
virtually straight through from Texas and was only planning to stay in Minnesota for two
days.
Gonzalez-Perez argues that Officer Bartyl la’s observations fail to satisfy the
reasonable-suspicion standard because none of the things observed by the officer are illegal
and they are all subject to innocent explan ations. But the Minnesota Supreme Court has
recognized that in some circ umstances, even where “each indivi dual factor is consistent
with innocent travel, all of the factors together may amount to reasonable suspicion.” State
v. Martinson , 581 N.W.2d 846, 852 (Minn. 1998). In addition, Officer Bartylla was
experienced in dealing with drug-related cases and he tes tified that the behavior and
circumstances he observed were consistent with someone enga ged in drug trafficking.
“[I]nnocent factors in their totality, combined with the investigating officer’s experience
in apprehending drug traffickers, can be sufficient bases for finding reasonable suspicion.”
Id. (quotations omitted); see also State v. Flowers, 734 N.W.2d 239, 251-52 (Minn. 2007)
(noting that police officers may use their special training to “make inferences and

7
deductions that might well elude an untrained person”), Britton , 604 N.W.2d at 88-89
(stating that “[w]e are deferential to police officer training and experience”). Thus, even
if each circumstance may have an innocent explanation, they can nonetheless provide
reasonable suspicion when viewed in the aggregate.
We, therefore, conclude that the “constellation of signs consistent with illegal drug
activity” observed by Officer Bartylla provided him with reasonable, articulable suspicion
of criminal activity sufficient to support his request for permission to search the vehicle.
The second expansion of the traffic stop involved the use of a K-9 unit to conduct a
drug-sniff test of the vehicle to detect the presence of drugs. The use of a K-9 unit to sniff
a vehicle to determine if there are controlle d substances present must be supported by
“reasonable, articulable suspicion of drug-related criminal activity.” Wiegand, 645
N.W.2d at 135. An officer’s reasonable suspicion of criminal activity “evaporates” if the
officer becomes aware of any facts that render the suspicion unreasonable. State v. Pike,
551 N.W.2d 919, 922 (Minn. 1996). Gonzalez-Perez argues that, because Officer Bartylla
conducted a thorough search of the vehicle and failed to discover any illegal items or
additional evidence of drug-related activity, any suspicion that existed to support the initial
search evaporated and the drug-sniff test was thus an unlawful expansion of the traffic stop.
We disagree.
Gonzalez-Perez is correct that Officer Ba rtylla did not discover any illegal items
during the initial search. But he did observe loose bolts and tools scattered on the floor of
the vehicle and Officer Bartylla testified that loose bolts and tools were consistent with
vehicles that were altered to create a hi dden compartment to transport controlled-

8
substances. He testified that when hidden compartments are made, “sometimes they’ll
leave tools or bolts and screws out of place” or “they’ll have the tools inside the vehicle so
when they get to the drop-off location, they have the exact tools to remove the concealment
compartment.” Officer Bartylla testified th at, based on his training and experience, the
combination of information he learned prior to the search of the vehicle, along with what
he observed during the search, led him to be lieve that it was likely the vehicle was being
used to transport a large quantity of drugs.
Officer Bartylla further testified that, for reasons of personal safety, he was not able
to conduct a thorough search to try to detect any hidden comp artments at the site of the
stop. He testified that they were pulled over on the side of a busy road where vehicles were
“flying past” at 60 to 70 miles per hour. It wa s at this point that he decided to call for a
K-9 unit to conduct a drug-sniff test. As Gon zalez-Perez argues, the safety concern does
not by itself justify the test. It does, howeve r, serve to contradict Gonzalez-Perez’s claim
that a thorough search was conducted withou t finding any drugs and that the basis for
suspecting drug activity thus “evaporated.” Pike, 551 N.W.2d at 922.
In addition, this case is distinguishable from State v. Wiegand cited by Gonzalez-
Perez. Wiegand involved a K-9 unit drug-sniff test fo llowing a traffic stop for a vehicle
equipment violation. The alleged basis fo r the test was that “Wiegand was evasive,
nervous, and had glossy eyes ,” but the officer acknowledge d that he had no reason to
suspect Wiegand was under the influence of drugs and that Wiegand was merely “acting
suspiciously.” Id. at 128, 137. The Minnesota Supreme Court concluded that the
circumstances of the case failed to provide an articulable, reasonable suspicion to support

9
the K-9 unit drug-sniff test. Here, there are a number of circumstances supporting Officer
Bartylla’s suspicions of drug trafficking. The district court concluded that while
“innocently explained in isolation, . . . these are things [Officer Bartylla] observed through
his five senses that had stacked up to prov ide the officer reasonable articulable suspicion
to request and carry out a sniff search.”
We conclude that, on this record, under the totality of the circumstances, the second
expansion of the investigation to conduct a K-9 unit drug-sniff test was also supported by
reasonable, articulable suspicion. The dist rict court therefore di d not err by denying
Gonzalez-Perez’s motion to suppress.
II. The district court erred by en tering multiple convictions.
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both . An included offense may be . . . a lesser
degree of the same crime” or “a crime ne cessarily proved if the crime charged were
proved.” Minn. Stat. § 609.04, subd. 1 (2 018). Gonzalez-Perez argues, and the state
agrees, that the district court erred by entering convictions for both aggravated first-degree
controlled-substance crime (sale) and first- degree controlled-substance crime (sale)
because the latter is necessarily proved if an individual commits the former. An individual
is guilty of aggravated first-degree controlled-substance crime if the person commits first-
degree controlled-substance crime, sells more than 100 grams of the controlled substance,
and the crime involves two aggravating factors. Minn. Stat. § 152.021, subd. 2b(2) (2018).
Accordingly, first-degree controlled substance crime is necessarily proved if aggravated
first-degree controlled-substance crime is prove d. The district court therefore erred by

10
entering a conviction for first-degree contro lled-substance crime, and we reverse and
remand for the conviction to be vacated.
Affirmed in part, reversed in part, and remanded.