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This opinion will be unpublished and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
A19-1623

State of Minnesota,
Respondent,

vs.

Levar Randolph Mitchell,
Appellant.

Filed July 27, 2020
Affirmed
Larkin, Judge

Douglas County District Court
File No. 21-CR-17-2001

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

Chad M. Larson, Douglas County Attorney, Alexandria, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his conviction of third-degree possession of marijuana ,
arguing that the district court erred by denying his pre trial motion to suppress. Appellant

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also challenges his sentence, arguing that the district court abused its discretion by denying
his request for a downward dispositional departure. We affirm.
FACTS
On October 25, 2017, a state trooper was sitting in his squad car in the median of
Interstate 94 near Alexandria while on a drug-interdiction assignment with a drug-sniffing
dog. He clocked a vehicle driven by appellant Levar Randolph Mitchell moving at 74
miles per hour. The trooper pulled out of the median to catch up to the vehicle, which had
Washington license plates. The trooper followed the vehicle for about two minutes and
obtained a speed reading of 75 miles per hour. The posted speed limit was 70 miles per
hour. The trooper activated his squad car’s emergency lights and stopped the vehicle.
The trooper exited his squad car and walked along the passenger side of the vehicle
toward the front passenger door. As he did so, the trooper saw a large amount of luggage
in the vehicle. The trooper tapped on the front passenger-side window, and the passenger,
Mitchell’s fiancée, rolled down the window about four inches. The trooper testified at a
later suppression hearing that he thought that the partial opening was suspicious because,
based on his training and experience, it “is associated almost every time with the smuggling
or hiding of drug od ors,” and “rolling the window down so many inches keeps the odors
inside the vehicle.”
The trooper asked Mitchell for his driver’s license and insurance information.
Mitchell looked for that information for approximately 40 seconds before the trooper asked
where Mitchell and his fiancée were heading. Mitchell responded that they were traveling
to Illinois. The trooper then asked where they were traveling from, and Mitchell said that

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they were coming from Oregon and that they had gone there to attend a football game. The
trooper asked Mitchell if he owned the vehicle. Mitchell said it was a rental. At some
point, Mitchell’s fiancée opened the glove box to look for Mitchell’s driver’s license and
insurance information, and the trooper saw a large bottle of air freshener in the glove box.
The trooper testified that he “believed this to be extremely suspicious” because “the vehicle
was a rental vehicle and it was coming from a high distribution area . . . along the corridor
of [Interstate] 94, which is [known for] drug smuggling efforts of specifically marijuana
coming from the west coast.”
About two minutes after the trooper had requested Mitchell’s driver’s license, the
trooper stated, “Why don’t you just come back here with me? I’ll just get it from you, date
of birth and stuff like that. Just come on back here.” Mitchell got out of the vehicle and
met the trooper in front of the trooper’s squad car. There, the trooper asked Mitchell if he
had any weapons or drugs in the vehicle, which Mitchell denied. The trooper then asked
Mitchell if he had a wallet . Mitchell responded , “I usually keep [my license] in my
insurance card.” The trooper testified that Mitchell’s reply was “weird,” but that he
“believe[d it] was associated with his nervousness.” Mitchell showed the trooper a credit
card, which had his name on it. The trooper then said, “Why don’t you just come on and
have a seat up there in the front,” referring to the trooper’s squad car. Mitchell obliged and
sat in the front passenger seat of the squad car.
Once in the squad car, the trooper noticed that Mitchell “was extremely nervous .”
The trooper asked him questions about his travels. Mitchell said that they had been
traveling for about “a day and a half” and stopped a couple times for gas. Mitchell told the

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trooper that he and his fiancée missed the football game because of a delayed flight but that
they had visited with family. Mitchell said that he and his fianc ée chose to drive back to
Ohio to “enjoy the country” and were planning to spend the night with relatives in Illinois.
When the trooper asked about the large amount of luggage in the vehicle, Mitchell said that
they flew to Oregon with one suitcase each, went shopping in O regon, and put their
purchases in new suitcases. The trooper testified that the amount of luggage in the vehicle
was “ extremely suspicious” because “it is often associated” with transporting large
amounts of marijuana from the west coast. The trooper also testified that Mitchell became
increasingly nervous to the point where “you could physically see the rise and fall of his
chest,” that he was “literally shaking,” and that he misspelled his middle name. The trooper
testified that he attributed Mitchell’s nervousness to something other than a traffic
violation.
After approximately six minutes in the squad car, the trooper told Mitchell that he
suspected that Mitchell was involved in drug smuggling. The trooper then exited the squad
car, checked the vehicle identification number (VIN) on Mitchell’s vehicle, and spoke to
Mitchell’s fiancée. Contrary to Mitchell’s claim that they had missed the football game,
Mitchell’s fiancée said that all the men in the family had gone to the game and that she had
stayed home with the women. The trooper testified that at that point, the passenger window
was rolled down completely and that he smelled “a strong odor of marijuana emitting from
the vehicle.” The trooper asked Mitchell’s fian cée to step out of the vehicle and directed
the drug-sniffing dog that was on the scene to sniff the exterior of the vehicle. The dog
alerted to the presence of marijuana. The trooper searched the vehicle and found

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approximately 24 kilograms of marijuana in the luggage. He also found approximately
400 grams of hash oil.
The state charged Mitchell with one count of second -degree possession of
marijuana, in violation of Minn. Stat. § 152.022, subd. 2(a)(6) (2016). Mitchell moved to
suppress the drug evidence. The district court held an evidentiary hearing on Mitchell’s
motion, and the trooper testified regarding the circumstances a bove. Mitchell filed a
memorandum of law after the hearing, arguing that the initial stop was unc onstitutional
and that the stop was unconstitutionally expanded in both scope and duration. The district
court denied the motion to suppress.
The state filed an amended complaint that reduced the charge against Mitchell to
third-degree possession of ma rijuana under Minn. Stat. § 152.023, subd. 2(a)(5) (2016).
Mitchell stipulated to the prosecution’s case under Minn. R. Crim. P. 26.01, subd. 4 , to
obtain review of the district court’s pretrial ruling on his suppression motion. The parties
agreed to hold any sentencing hearing the same day as the trial. Before trial, Mitchell filed
a motion for a downward disposition al departure from the presumptive sentence . The
district court ultimately found Mitchell guilty of third -degree possession of marij uana.
After hearing argument from Mitchell and his attorney, the district court denied Mitchell’s
motion for a downward dispositional departure and sentenced Mitchell to serve 34 months
in prison. Mitchell appeals.

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D E C I S I O N
I.
Mitchell contends that the district court erred by denying his motion to suppress .
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; Minn. Const. art. I, § 10. “The touchstone of the Fourth
Amendment is reasonableness.” State v. Johnson , 813 N.W.2d 1, 5 (Mi nn. 2012)
(quotation omitted).
Generally, warrantless searches and seizures are per se unreasonable. State v. Horst,
880 N.W.2d 24, 33 (Minn. 2016). However, a police officer may initiate a limited,
investigatory stop without a warrant if the officer has reasonable, articulable suspicion of
criminal activity. State v. Munson , 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v.
Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968)). “[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 (Minn. 2008) (quotations omitted). In determining whether reasonable
suspicion exists, we “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).
“[E]ach incremental intrusion during a stop must be ‘strictly tied to and justified by
the circumstances which rendered [the initiation of the stop ] permissible.’” State v.
Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (alteration in original) (quoting Terry, 392

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U.S. at 19, 88 S. Ct. at 1878) (other quotation omitted). Under the Minnesota Constitution,
“an 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.” State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).
We review a district court’s determination of reasonable suspicion de novo, but we
accept the district court’ s factual findings unless they are clearly erroneous. Id. Any
evidence obtained as the result of an unreasonable seizure must be excluded. Id.
Although he challenged it below, Mitchell does not contest the validity of the initial
traffic stop for speeding on appeal. See State v. George , 557 N.W.2d 575, 578 (Minn.
1997) (providing that an officer has an objective basis for stopping a vehicle if the officer
“observes a violation of a traffic law, however insignificant”). Instead, Mitchell contends
that the trooper unreasonably expanded the scope and duration of the traffic stop. He
argues that the stop was unreasonably expanded at the following five points: (1) when,
after Mitchell exited his vehicle, the trooper asked Mitchell whether there were any
weapons or drugs in the vehicle; (2) when the trooper instructed Mitchell to sit in the front
seat of the squad car; (3) when the trooper questioned Mitchell about the luggage in his
vehicle; (4) when the trooper continued to question Mitchell after determining that Mitchell
had a valid license status; and (5) when the trooper left Mitchell confined in the squad car
while he checked the vehicle’s VIN and talked with Mitchell’s fiancée.
The first alleged expansion occurred when Mitchell stepped out of the vehicle and
the trooper asked him whether there were any weapons or drugs in the vehicle. By that
time, the trooper had seen an unusually large amount of luggage in Mitchell’s vehicle,

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Mitchell’s fiancé e had rolled down her window only four inches in response to the
trooper’s tapping, the trooper had learned that the vehicle was a rental, and the trooper had
observed a bottle of air freshener in the glove box. The trooper testified that, from this
information and based on his training and experience, he was “extremely suspicious” of
drug-smuggling activity. He specifically testified that the window being rolled down only
a few inches “is associated almost every time with the smuggling or hiding of drug odors”
and that the vehicle “was a rental vehicle and it was coming from a high distribution area
. . . along the corridor of [Interstate] 94, which is [known for] drug smuggling efforts of
specifically marijuana coming from the west coast.”
“The reasonable-suspicion standard is not high.” State v. Morse, 878 N.W.2d 499,
502 (Minn. 2016) (quotations omitted). An officer need only articulate specific facts
which, taken together with rational inferences from those facts, objectively support the
officer’s suspicion. State v. Davis , 732 N.W.2d 173, 182 (Minn. 2007). Trained police
officers may make reasonable inferences that are beyond those of an untrained person.
Richardson, 622 N.W.2d at 825. Considering the totality of the ci rcumstances set forth
above and the trooper’s reasonable inferences, the trooper articulated specific facts that
objectively supported his suspicion that Mitchell was engaged in drug-related activity. He
therefore had a valid basis to expand the traffic stop to inclu de investigation of the
suspected drug activity.
Appellant argues that the trooper did not have reasonable suspicion that Mitchell
was engaging in criminal drug activity because he did not smell drugs or detect an odor of
air freshener while he stood next to the partially open passenger window for over two

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minutes. The trooper’s failure to detect an incriminating odor when he initially spoke to
Mitchell’s fiancée through the partially opened passenger window does not negate all of
the other circumstances that supported his reasonable suspicion.
An officer may lawfully conduct a dog sniff around the exterior of a vehicle stopped
for a traffic violation when the officer has reasonable, articulable suspicion of drug-related
criminal activity. State v. Wiegand, 645 N.W.2d 125, 137 (Minn. 2002). “[A] dog sniff
around the exterior of a legitimately stopped motor vehicle is not a search requiring
probable cause . . . .” Id. at 133. As explained above, by the time the trooper asked
Mitchell to get out of his vehicle and questioned him about drugs and wea pons in the
vehicle, the trooper had reasonable, articulable suspicion of criminal drug activity. That
suspicion provided a lawful basis to conduct a dog sniff around the vehicle.
We do not address the other allegedly unreasonable expansions that Mitchell has
identified because they are immaterial: the trooper articulated specific facts which, taken
together with rational inferences from those facts, objectively supported his suspicion that
Mitchell was engaged in drug-related criminal activity when the first expansion occurred.
Those circumstances justified the dog sniff of Mitchell’s vehicle and the ensuing
warrantless seizure of marijuana from the vehicle . See State v. Pederson -Maxwell, 619
N.W.2d 777, 781 (Minn. App. 2000) (concluding that drug -sniffing dog’s alert to the
presence of controlled substances in a motor vehicle provided probable cause for lawful
warrantless search under the automobile-exception to the warrant requirement). Although
the trooper obtained additional information that buttres sed his reasonable suspicion of
drug-related activity before he conducted the dog sniff, that information was not necessary

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to justify the dog sniff. More importantly, the additional information did not dispel the
officer’s reasonable suspicion. See State v. Hickman, 491 N.W.2d 673 , 675 (Minn. App.
1992) (explaining that o nce reasonable suspicion of criminal activity has been dispelled,
an investigative seizure must end), review denied (Minn. Dec. 15, 1992).
In sum, because reasonable, articulable suspicion objectively supported the
trooper’s expansion of the traffic stop to include the dog sniff, the district court did not err
by denying Mitchell’s motion to suppress.
II.
Mitchell contends that the district court abused its discretion by denying his request
for a downward dispositional departure. “The sentences provided in the [ Minnesota
Sentencing Guidelines] Grids are presumed to be appropriate for the crimes to which they
apply.” Minn. Sent. Guidelines 2.D.1 (Supp. 2017). “[A] sentencing court can exercise its
discretion to depart from the guidelines only if aggravating or mitigating circumstances are
present, and those circumstances provide a substantial and compelling reason not to impose
a guidelines sentence.” State v. Soto , 855 N.W.2d 303, 308 (Minn. 2014) (citations and
quotations omitted). “When factors that may justify departing from the presumptive
sentence are present, a court must exercise its discretion and consider the factors.” State v.
Kier, 678 N.W.2d 672, 677 (Minn. App. 2004), review denied (Minn. June 15, 2004). We
generally will not interfere with a presumptive sentence, even if there are grounds that
would justify a departure. State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).
Appellate courts “afford the [district] court great discretion in the imposition of
sentences and reverse sentencing decisions only for an abuse of that discretion.” Soto, 855

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N.W.2d at 307-08 (quotation omitted). “[A]s long as the record shows the [district] court
carefully eva luated all the testimony and information presented [to it] before making a
determination,” we will not interfere with the district court’s decision to impose a
presumptive sentence. State v. Pegel, 795 N.W.2d 251, 255 (Minn. App. 2011) (quotation
omitted). Only in a “rare” case will an appellate court reverse a district court’s refusal to
depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see State v. Witucki, 420 N.W.2d
217, 223 (Minn. App. 1988) (“An appellate court will not g enerally review the [district]
court’s exercise of its discretion in cases where the sentence imposed is within the
presumptive range.” (quotation omitted)), review denied (Minn. Apr. 15, 1988).
When considering a dispositional departure, the district court focuses “more on the
defendant as an individual and on whether the presumptive sentence would be best for him
and for society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). “[A] defendant’s
particular amenability to individualized treatment in a probationary setting will justify
departure” from a guidelines sentence. Soto, 855 N.W.2d at 308 (quotation omitted). The
particular-amenability requirement “ensure[s] that the defendant’s amenability to
probation distinguishes the defendant from most others and truly presents the substantial
and compelling circumstances that are necessary to justify a departure.” Id. at 309
(quotation omitted).
Relevant factors for determining whether the defendant is parti cularly amenable to
probation include the defendant’s age, prior criminal record, remorse, cooperation, attitude
in court, and support of friends and family. State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
However, a district court is not required to depa rt from the presumptive -sentence range

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even if there is evidence in the record that the defendant would be amenable to probation.
State v. Olson, 765 N.W.2d 662, 663 (Minn. App. 2009).
The record reflects the district court’s reasons for denying Mitchell’s motion for a
downward dispositional departure, including that there were “some big strikes” weighing
against a departure. First, the district court described Mitchell’s participation in drug
trafficking as “very concerning.” Second, the district court stated that Mitche ll was
transporting approximately 50 pounds of marijuana, which is “a large amount.” Third, the
district court “wrestled with” the fact that Mitchell “went through a similar set of
circumstances” in 2006, when he was convicted of third -degree possession of marijuana
and unlawful possession of a firearm . The district court ultimately stated, “I don’t doubt
for a moment that 99 percent of the time you make good decisions and you’re a good
person, but I cannot in good conscience waive a prison sentence for drug trafficking under
these circumstances. So the request for a departure is denied.”
Mitchell argues that a departure was warranted based on his age and maturity and
because he had committed no crimes since 2006, had shown remorse for his offense, had
been cooperative throughout the district court proceedings, ha d the support of his
community and family, and c ould uniquely “serve his community through his
entrepreneurial endeavors.” But the district court is not required to depart fro m the
guidelines even if there is evidence that the defendant may be amenable to probation. Id.

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In sum, because t he record shows that the district court carefully considered
Mitchell’s argument for a departure , this is not a rare case in which we would reverse the
district court’s imposition of a presumptive sentence.
Affirmed.