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This opinion will be unpublished and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
A19-1845

State of Minnesota,
Respondent,

vs.

James Paul Aery,
Appellant.

Filed December 7, 2020
Reversed
Segal, Chief Judge

Beltrami County District Court
File No. 04-CR-18-3347

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

David L. Hanson, Beltrami County Attorney, Hannah M. Hanlon, Assistant County
Attorney, Bemidji, Minnesota (for respondent)

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

Ryan M. Schultz, Special Assistant Public Defender, Robins Kaplan LLP, Minneapolis,
Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Segal, Chief Judge;
and Connolly, Judge.

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U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
Appellant challenges his conviction of drug possession in the fifth degree on the
grounds that he was subject to an unlawful search and that the drug evidence found during
the search should have been suppressed. Because the circumstances were not sufficient to
give rise to an honest and strong suspicion that appellant had constructive possession of
suspected drugs seen in a car , law enforcement lacked probable cause to arrest appellant
on that basis and the subsequent search of appellant’s person was unlawful. The drug
evidence resulting from the search thus should have been suppressed. We reverse.
FACTS
After the district court denied the motion of appellant James Paul Aery to suppress
evidence, t his case was submitted to the district court for a bench trial pursuant to a
stipulation to the prosecution’s evidence under Minn. R. Crim. P. 26.01, subd. 4, to obtain
appellate review of the suppression issue. The case arose out of a vehicle stop initiated by
a Beltrami County sheriff’s deputy in October 2018. The car stopped by the deputy had
three occupants—the driver, a passenger in the front seat, and Aery, who was seated in the
backseat directly behind the driver. The deputy approached the car and spoke to the driver
through the driver’s side window. While speaking to the driver, the deputy noticed a micro-
baggie containing a white, crystal substance that had been placed in the alcove or pocket
behind the interior handle of the driver’s side front door of the car (the driver’s door micro-

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baggie). The deputy suspected that the driver’s door micro -baggie contained
methamphetamine.
The deputy directed the driver and the two passengers to exit the vehicle. After
Aery exited the vehicle, the deputy said he was going to pat him down. Aery put his hand
into his pocket and , when the deputy instructed him to remove his hand from his pocket,
Aery did so but kept his hand clenched. Aery then dropped a micro -baggie (the dropped
micro-baggie) on the ground; the deputy then put Aery into handcuff s and searched him.
During the search, the deputy found a third micro-baggie containing a “weighable amount”
of methamphetamine, as verified by later testing, in the pocket of Aery’s pants and three
glass smoking pipes in his waistband.
Aery filed a motion to suppress the evidence found on his person along with the
dropped micro -baggie, claiming that the deputy violated his Fourth Am endment rights .
The state did not challenge Aery’s assertion that he was under arrest for Fourth Amendment
purposes when he was searched and the third micro-baggie was found in his pocket.1 The
district court found that the search was a lawful “search incident to arrest” because Aery
was in constructive possession of the driver’s door micro -baggie and the deputy thereby
had probable cause for the arrest. The court thus denied the motion. The court also held
that the dropped micro-baggie was not subject to Fourth Amendment protection because it
was voluntarily abandoned . Pursuant to the stipulated evidence, the district court issued

1 We further note that the state never argued that the dropped micro-baggie created a lawful
basis to conduct the search of his person.

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its findings of fact, conclusions of law and a verdict of guilt, adjudging Aery guil ty of a
single count of drug possession in the fifth degree in violation of Minn. Stat. § 152.025,
subd. 2(1) (2018). Aery now appeals.
D E C I S I O N
The sole issue in this appeal involves a review of the district court’s denial of Aery’s
motion to suppress the drug evidence found during the search of his person. The state has
limited its argument before this court to the grounds adopted by the district court as the
basis for its denial of Aery’s motion to suppress: that Aery was under arrest at the time of
the challenged search and that there was probable cause for the arrest on the theory that
Aery was in constructive possession of the driver’s door micro-baggie. Consequently, we
have not analyzed any alternative grounds upon which the search might have been justified
and our opinion is based solely on the assumption that probable cause was, therefore,
required to justify the search. Because this was a court trial pursuant to stipulated evidence,
the only issue before us is a question of law that we review de novo. State v. Williams, 794
N.W.2d 867, 871 (Minn. 2011) (citing State v. Flowers, 734 N.W.2d 239, 247 -48 (Minn.
2007)).
Aery argues that the search of his person was not a lawful search incident to arrest
because the deputy lacked pro bable cause to arrest him and that the search thus violated
his Fourth Amendment rights . The United States and Minnesota Constitutions prohibit
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10.
Generally, a warrantless sear ch is per se unreasonable unless a well -delineated exception

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to the warrant requirement applies. Flowers, 734 N.W.2d at 248. One such exception to
the warrant requirement is that , incident to a lawful arrest, a peace officer may search a
person’s body and the area within that person’s immediate control. State v. Ortega, 770
N.W.2d 145, 149 -50 (Minn. 2009) (citing State v. Robb , 605 N.W.2d 96, 100 (Minn.
2000)). The state bears the burden of establishing that an exception to the warrant
requirement applies. Flowers, 734 N.W.2d at 248.
There is probable cause to arrest a person “without a warrant when a person of
ordinary care and prudence, viewing the totality of circumstances objectively, would
entertain an honest and strong suspicion that a specific individual has committed a crime.”
Ortega, 770 N.W.2d at 150. “The crime for which probable cause exists must be one for
which a custodial arrest is authorized.” Id. Methamphetamine possession is such a crime.2
In this case, the state argues and the district court found that the deputy had probable
cause for the arrest because Aery had constructive possession of the suspected
methamphetamine in the driver’s door micro-baggie. If unlawful drugs are found in a place
where more than one person has access, such as in this case, possession can be established
under the constructive-possession doctrine. State v. Florine , 226 N.W.2d 609, 610 -611
(Minn. 1975). A finding of c onstructive possession requires that there be “a strong
probability, inferable from the evidence , that the defendant was, at the time, consciously
exercising dominion and control over [the contraband].” State v. L ee, 683 N.W.2d 309,

2 Possession of methamphetamine is a felony -level offense for which a custodial arrest is
authorized. Minn. Stat. §§ 152.025, subd. 4(b), 629.34, subd. 1(c) (2018).

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316-17 n.7 (Minn. 2004) ; see Maryland v. Pringle , 540 U.S. 366, 372 , 124 S. Ct. 795,
800-01 (2003).
Here, the district court based its finding of constructive possession on the fact that
the driver’s door micro -baggie was in “plain view,” at least from the deputy’s vantage
point, and was “within an arm’s reach” of Aery who was seated in the back seat on the
driver’s side of the car. The court concluded that these facts were sufficient to demonstrate
a conscious exercise of dominion and control by Aery of the driver’s door micro-baggie to
support probable cause for Aery’s arrest and the subsequent search.
The district court cited Ortega in support of its conclusion. In Ortega, a case that
also involved a vehicle stop, the officer smelled the odor of burnt marijuana in the car and
observed a rolled-up dollar bill with what appeared to be cocaine powder in it. 770 N.W.2d
at 148. The rolled-up dollar bill was located in the front-seat center console cup holder
between the driver and Ortega, who was sitting in the front passenger seat . Id. The
Minnesota Supreme Court held that
when combined with the odor of burnt marijuana, [the
officer’s] discovery of the cocaine -laced dollar bill in an
unconcealed location that was accessible to both [the driver]
and Ortega would cause a person of ordinary care and prudence
to entertain an honest and strong suspicion that Ortega
constructively possessed the cocaine jointly with [the driver].

Id. at 151.

Aery argues that the facts in this case are distinguishable from Ortega and we agree.
In Ortega, the dollar bill with cocaine powder was located in plain view between Ortega
and the driver. Here, the state acknowledges that there is no evidence that the driver’s door

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micro-baggie was visible to Aery from his position in the backsea t. In addition, the
evidence shows that Aery was three feet away from the driver’s door handle pocket and no
evidence was presented by the state concerning the accessibility of the door handle pocket
to a backseat passenger. See, e.g., State v. Reyes, No. C0-02-1769, 2003 WL 21150520,
at *1 (Minn. App. May 20, 2003)3 (backseat passenger was not in constructive possession
of drugs located in the front seat even though the officer testified that it was a small car
and the passenger “easily could have reac hed up [to the front]”). Finally, there was no
evidence of contemporaneous drug use, such as the smell of burnt marijuana in the Ortega
case, to suggest knowledge by Aery of the presence of drugs in the car.
We also note the lack of any evidence that Aery had an ownership interest in the car
or had even been in the car before the date of this incident. This further erodes the state’s
argument that there was a “strong probability” that Aery exercised “dominion and control”
over the driver’s door micro-baggie. See State v. Slifka, 256 N.W.2d 90, 91 (Minn. 1977)
(“The officers arguably had reasonable cause to believe that the driver constructively
possessed the marijuana because the car was his and he was in control of the car [;]” the
officers lacked such cause with respect to the defendant who was just a passenger).
For the above reasons, we determine that, under “the totality of the circumstances,”
the evidence is not sufficient to support an “honest and strong suspicion ” that Aery had
constructive possession of the driver’s door micro-baggie. Since the sole basis put forward

3 As an unpublis hed opinion, Reyes is cited only as pers uasive authority. Minn. Stat.
§ 480A.08, subd. 3(c) (2018).

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by the state on this appeal to justify the search was that it was a search incident to arrest
based on Aery’s constructive possession of the driver’s door micro-baggie, we conclude
that the “arrest” was not supported by probable cause and the evidence found as a result of
the search should have been suppressed . Without evidence that Aery possessed
methamphetamine, the conviction must be reversed.4
Aery also argues that the district court erred in finding that he voluntarily abandoned
the dropped micro-baggie. He argues that this evidence must also be suppressed as the
“fruit of the poisonous tree.” It does not appear from the district court’s finding s of fact,
however, that the dropped micro-baggie served as a basis for Aery’s conviction.5 We, thus,
do not need to address this issue.
Reversed.

4 We note that Aery filed a pro se brief. The state argues that we should not consider the
brief because i t fails to cite any legal authority . T he brief also raises no arguments that
were not covered in the brief filed by Aery’s counsel . For these reasons, we will not
separately address the allegations in the pro se brief.

5 There is some confusion contained in the Stipulation to Prosecution’s Case to Ob tain
Review of a Pretrial Ruling with regard to which micro-baggie (the dropped micro-baggie
or the one found in Aery’s pocket during the search) was tested by a laboratory and proven
to contain methamphetamine. The district court’s findings of fact , however, make clear
that it was the micro -baggie found by the deputy in Aery’s pocket after Aery was
handcuffed. It appears that the dropped micro-baggie was never tested or otherwise proven
to contain drugs.