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This opinion will be unpublished and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
A19-1546

State of Minnesota,
Appellant,

vs.

Christian John Donnelly,
Respondent.

Filed May 18, 2020
Reversed and remanded
Reyes, Judge

Mille Lacs County District Court
File No. 48-CR-19-292

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

Joe Walsh, Mille Lacs County Attorney, Erica Madore, Assistant County Attorney, Milaca,
Minnesota (for appellant)

Madison Bruber, Assistant Public Defender, St. Paul, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Reyes, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this pretrial appeal, appellant State of Minnesota argues that the district court
erred by suppressing controlled-substance evidence after determining that a trooper

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(1) conducted an unreasonable pat-frisk of respondent and (2) searched the vehicle without
probable cause. We reverse and remand.
FACTS
On February 11, 2019, respondent Christian John Donnelly and his girlfriend J.N.
hit a patch of ice while driving on highway 169 and veered off the road. It had been
snowing, and driving conditions were poor. When a Minnesota state trooper arrived at the
scene and approached respondent’s vehicle, respondent was walking around it. The trooper
asked him to sit in his car.
The trooper then approached the passenger side, opened the car door to speak with
J.N., and noticed “an overwhelming odor of marijuana emanating from the vehicle.” The
trooper told the occupants that she could smell the marijuana , notified them that she
intended to search the vehicle, and asked them where they kept the marijuana . Both
respondent and J.N. denied the presence of marijuana inside the vehicle.
The trooper then asked J.N. to step out of the car. Both vehicle occupants became
“hostile, agitated, very defensive, [and] uncooperative .” J.N. ignored the trooper’s order
for approximately one minute. During this time, r espondent argued with the trooper and
told her that she did not smell marijuana. J.N. became angry and told the trooper to call
her superior. The trooper called for backup. J.N. again refused to step out of the vehicle
and told the trooper that she needed a warrant to search the vehicle.
After the trooper threatened to remove J.N. forcefully, J.N. became even more
agitated, but acquiesced. The trooper pat-frisked J.N. and then instructed her to stand by
the tow truck, which had arrived minutes earlier. The trooper instructed respondent, who

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continued to be uncooperative, to exit his vehicle and stand by the tow truck, and the
trooper conducted a pat-frisk to “check for weapons.” Respondent acquiesced.
The trooper located an object in respondent’s pocket that “felt to be like a one-hitter
pipe.” The trooper removed the object and saw that it contained “a white crystal
substance,” which later tested positive for methamphetamine. The trooper placed
respondent under arrest and then ordered respondent to sit in her squad car. A second
trooper arrived, and once the troopers secured both occupants in squad cars, the troopers
searched respondent’s vehicle and found marijuana, marijuana wax, drug paraphernalia,
accessories for growing marijuana, bullets, and a BB gun.
The state charged respondent with one count of felony fifth-degree possession of a
controlled substance in violation of Minn. Stat. § 152.025, subd. 2(1) (2018). Respondent
moved to suppress evidence obtained from both the pat-frisk of his person and the vehicle
search. Following respondent’s motion, the district court held a contested omnibus hearing
at which the trooper testified. The district court granted respondent’s motion to suppress
the evidence. This pretrial appeal follows.
D E C I S I O N
I. The district court’s suppress ion of evidence critically impact ed the state’s
ability to prosecute.

The state argues that suppressing evidence of the methamphetamine critically
impacted its ability to prosecute by preventing it from demonstrating probable cause to
prosecute respondent for a controlled-substance crime. We agree.

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As a threshold matter, when the state appeals a pretrial order, it must show “how the
district court’s alleged error, unless reversed, will have a critical impact on the outcome of
the trial.” Minn. R. Crim. P. 28.04, subd. 2(2)(b); State v. Osorio, 891 N.W.2d 620, 627
(Minn. 2017). If a district court’s ruling “significantly reduces the likelihood of a
successful prosecution,” it has a critical impact. State v. Kim, 398 N.W.2d 544, 551 (Minn.
1987). Suppressing the methamphetamine evidence meets the critical-impact requirement,
allowing us to consider the state’s appeal. See id.
II. The trooper reasonably decided to conduct a pat-frisk.

The state argues that analysis of the five factors from State v. Flowers, 734 N.W.2d
239, 253 (Minn. 2007), supports the reasonableness of the pat search. We agree.
Both the United States and Minnesota Constitutions guarantee “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV; see Minn. Const. art. I, § 10; State v. Licari,
659 N.W.2d 243, 250 (Minn. 2003). “When reviewing a pretrial order on a motion to
suppress, we review the district court’s factual findings [for clear error],” State v. Milton,
821 N.W.2d 789, 798 (Minn. 2012) (citation omitted), and its determinations of reasonable,
articulable suspicion de novo, State v. Diede , 795 N.W.2d 836, 843 (Minn. 2011) .
Warrantless searches and seizures are per se unreasonable unless an exception to the
warrant requirement applies. State v. Horst , 880 N.W.2d 24, 33 (Minn. 2016). But a
trooper does not need a warrant to conduct a pat-frisk for weapons if the trooper (1) has “a
reasonable, articulable suspicion that a suspect might be engaged in criminal activity” and
(2) reasonably believes that the suspect might be armed and dangerous. State v. Dickerson,

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481 N.W.2d 840, 843 (Minn. 1992) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868,
1884 (1968)). If both requirements are met, a trooper may “conduct a carefully limited
search of the outer clothing of such person[] in an attempt to discover weapons which might
be used to assault [the trooper].” Terry, 392 U.S. at 30, 88 S. Ct. at 1885 (often referred to
as a Terry pat-frisk). However, a trooper is entitled to seize contraband, including drug
paraphernalia, found during a pat-frisk if the incriminating character of the contraband is
immediately apparent to the trooper such that it gives rise to probable cause for the seizure.
See Minnesota v. Dickerson, 508 U.S. 366, 376, 113 S. Ct. 2130, 2137 (1993).
“We evaluate whether a reasonable, articulable sus picion [to conduct a pat-frisk]
exists from the perspective of a trained police officer, who may make ‘inferences and
deductions that might well elude an untrained person.’” State v. Lemert, 843 N.W.2d 227,
230 (Minn. 2014) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695
(1981)). “[T]he reasonable suspicion standard is not high,” but it requires more than an
unarticulated “hunch.” State v. Timberlake , 744 N.W.2d 390, 393 (M inn. 2008)
(quotations omitted). The purpose of a Terry pat-frisk “is not to discover evidence of
crime, but to allow the officer to pursue [the] investigation without fear of violence.”
Flowers, 734 N.W.2d at 251 (quotation omitted).
We analyze the objective reasonableness of a pat-frisk based on the totality of the
circumstances and consider five factors : (1) the number of troopers and trooper cars
involved; (2) the nature of the crime and whether the trooper has reason to believe the
suspect might be armed; (3) the strength of the troopers’ articulable, objective suspicions;
(4) whether the persons under observation behave erratically or make suspicious

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movements; and (5) the need for the troopers to take immediate action and no opportunity
for them to make the stop that leads to the pat-frisk in less threatening circumstances. Id.
at 251, 253 (citing United States v. Raino, 980 F.2d 1148, 1149-50 (8th Cir. 1992)).
Here, the district court applied the five-factor Flowers analysis and determined that
the trooper conducted an unreasonable pat-frisk because only the first Flowers factor
supported the reasonableness of the search. We conclude in our de novo review that the
five Flowers factors support the reasonableness of the pat-frisk.
Number of troopers and trooper cars involved
We agree with the district court’s analysis that, becaus e the vehicle occupants
outnumbered the trooper, this factor supports the reasonableness of the pat-frisk. See id.
at 253.
Nature of the crime and reason to believe that suspect might be armed
The district court relied on the fact that no weapons were in view to conclude that
this factor had not been met. However, the lack of a visible weapon does not preclude a
trooper from reasonably deducing that respondent may possess one. See Dickerson, 481
N.W.2d at 843. The standard requires that , objectively, a trooper may “reasonably
believe[]” that respondent “might be armed” as opposed to having proof that respondent
was armed. See id.; Lemert, 843 N.W.2d at 230. Even though the nature of the suspected
drug crime did not necessarily suggest the presence of a weapon, the totality of the
circumstances includes observing a hostile or threatening attitude, see State v. Curtis, 190
N.W.2d 631, 636 (Minn. 1971), which respondent displayed after being confronted about

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the overwhelming smell of marijuana. This factor supports the reasonableness of the pat-
frisk.
Strength of trooper’s articulable, objective suspicions
When the trooper noted that she smelled the odor of marijuan a, the vehicle
occupants became hostile. The outnumbered trooper then called for backup. Even though
the trooper did not see a weapon, the situation presented reasonable grounds for her to
make “deductions that might well elude an untrained person.” Lemert, 843 N.W.2d at 230.
This factor supports the reasonableness of the pat-frisk.
Erratic behavior of, or suspicious movements by, the persons under observation
Because the erratic behavior “of persons under observation” is relevant, we consider
both respondent and J.N.’s hostile behavior. See Flowers, 734 N.W.2d at 253. Hostility
qualifies as erratic behavior that could lead a trooper to objectively conclude that the
vehicle occupants were attempting to conceal something. See Curtis, 190 N.W.2d at 636
(stating that suspect’s hostile or threatening attitude is relevant for determining justification
of weapon search); In re Welfare of M.D.B. , 601 N.W.2d 214, 216 (Minn. App. 1999)
(listing motorist’s hostile and threatening attitude as factor that might justify pat-frisk
(citing Curtis, 190 N.W.2d at 636)), review denied (Minn. Jan. 18, 2000). This factor also
supports the reasonableness of the pat-frisk.
Need for immediate action
Because the trooper found herself in a situation in which the vehicle occupants acted
increasingly hostile, may have been attempting to conceal something, and backup would
not arrive for several minutes , the trooper could have made the reasonable inference that

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respondent “may [have] gain[ed] immediate control of a weapon.” State v. Waddell, 655
N.W.2d 803, 810 (Minn. 2003). “Officer safety is a paramount interest.” State v. Varnado,
582 N.W.2d 886, 891 (Minn. 1998). Thus, this factor supports the reasonableness of the
pat-frisk.
“[T]he reasonable suspicion standard is not high.” Timberlake, 744 N.W.2d at 393.
We conclude that, under the totality of the circumstances, the trooper reasonably feared for
her safety when outnumbered by hostile individuals and made the objectively reasonable
inference that respondent might be armed.
III. The trooper had probable cause to search the vehicle.

The state argues that State v. Ortega, 770 N.W.2d 145, 149 n.2 (Minn. 2009), which
clarified that the odor of marijuana is insufficient to justify a search incident to arrest unless
the trooper can discern from the odor that the person possesses a criminal amount of
marijuana, does not apply to the motor-vehicle exception to the search -warrant
requirement. We agree that the trooper appropriately searched the vehicle, though we need
not opine on the state’s substantive argument because we conclude that the trooper had
separate and sufficient probable cause to search the vehicle.
We review factual findings for clear error and legal determinations de novo. Milton,
821 N.W.2d at 798. The state bears the burden of proving that an exception to the warrant
requirement for seizures applies. Licari, 659 N.W.2d at 250.
The parties here agree that the seizure occurred once the trooper asked respondent
to step out of the vehicle so that she could search the vehicle, and both parties acknowledge

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that the motor-vehicle exception is at issue.1 The motor-vehicle exception allows a trooper
to search a vehicle if there is “probable cause to believe the search will result in a discovery
of evidence or contraband.” State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016) (quotation
omitted). Assessing probable cause requires us to objectively consider whether the totality
of the circumstances and the specific facts warranted “a [person] of reasonable prudence
in the belief that contraband or evidence of a crime will be found.” State v. Lee , 585
N.W.2d 378, 382 (Minn. 1998).
Here, the trooper made a reasonable decision to conduct a pat-frisk, which resulted
in the discovery of methamphetamine on respondent’s person. The discovery of
methamphetamine, the possession of any quantity of which is a crime,2 when coupled with
respondent becoming hostile and agitated once the trooper told him that she could smell
marijuana in his vehicle and becoming significantly more hostile when pat-frisked, suffices
for a trooper of reasonable prudence to believe that the vehicle contained evidence of
contraband. See Lee, 585 N.W.2d at 382. Because we determine that the discovery of
methamphetamine coupled with respondent’s hostility provided the trooper with probable
cause to search the vehicle for evidence of controlled-substance crimes, we need not opine
on the state’s argument that the odor of marijuana alone provides probable cause to search

1 Investigations to determine if the occupants of a stopped vehicle need assistance are
generally held not to be seizures. See, e.g., State v. Lopez, 698 N.W.2d 18, 23 (Minn. App.
2005). However, an investigation becomes a seizure when a trooper, by means of physical
force or show of authority, restrains the liberty of a citizen. State v. Klamar, 823 N.W.2d
687, 692 (Minn. App. 2012).
2 See Minn. Stat. § 152.023, subd. 2(a)(4) (2018).

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a vehicle. We conclude that the district court erred by granting respondent’s motion to
suppress, and we reverse and remand for trial consistent with these proceedings.
Reversed and remanded.