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This opinion will be unpublished and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
A19-2004

State of Minnesota,
Respondent,

vs.

Mark Terrance Ross,
Appellant.

Filed December 14, 2020
Affirmed in part, reversed in part, and remanded
Hooten, Judge

Rice County District Court
File No. 66-CR-17-2469

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

John L. Fossum, Rice County Attorney, Terence J. Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)

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

Considered and decided by Florey , Presiding Judge; Hooten , Judge; and Gaïtas ,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this direct appeal from the judgment of conviction for unlawful possession of
ammunition and a hypodermic needle, appellant argues (1) the evidence against him should

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have been suppressed as a result of an unlawful pat search conducted without a reasonable
belief that appellant was armed and dangerous, and (2) the district court failed to exercise
its discretion in imposing a 60-month executed sentence. We affirm in part, reverse in part,
and remand.
FACTS
While patrolling on October 8, 2017, Faribault Police Officer Mallory House
observed appellant Mark Ross on the Four Seasons apartment complex property and
confirmed that he had been trespassed from the property. Officer House testified that she
observed Ross entering and exiting a garage on the property with a dog, and that once Ross
saw that she noticed him, he picked up a bicycle that was leaning against a garage and rode
off of the Four Seasons property.
Later, Officer House found Ross at another apartment complex, stopped him, and
asked him what he was doing at the Four Seasons apartments. Ross denied being at the
property, being on a bicycle, or associating with a dog, although he later expressed concern
about the dog.
Officer House testified that she observed Ross to be very nervous and fidgety,
putting his hands in his pockets, looking around, pacing, and not following directions. As
she sat in her squad car to gather Ross’s information, she told him several times to remain
in front of the squad car. Ross informed Officer House that he could not hear due to
deafness in one of his ears . Then, Ross said he was going to sit on the curb and walked
beyond the squad car on the passenger side. Ross next walked back in front of the squad
car to show Officer House the no -trespass notice that he was holding from Four Seasons

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apartment complex. Ross again informed Officer House that he could not hear her. Officer
House testified that Ross was moving up and down the side of her squad car, making it
difficult for her to tell which direction he was tryin g to go , and that he kept putting his
hands into his pockets despite her instructions that he not do so. While Officer House
indicated that she did not find Ross’s behavior threatening or menacing, she was frustrated
that he was moving around and was especially concerned that Ross was putting his hands
in his pockets.
Officer House also testified that she knew Ross from prior contacts with him,
including assault investigations, potential burglary reports, and sus picious calls.
Specifically, she stated that she had previously responded to one incident during which she
observed Ross and three others actively involved in assaulting one another with various
weapons, including a frying pan and a knife. Officer House stated that she did not believe
Ross was charged based on that incident. When aske d if she was familiar with Ross’ s
history “in terms of cases that have actually bee n brought against him in court,” Officer
House responded “[j]ust this one.”
Officer Ross testified that, b ased on her training and previous interactions with
Ross, she determined that it was an officer safety concern for him to be reaching into his
pockets during the incident at issue in this case. She exited her squad car and told Ross,
“You’re moving around too much for me.” Officer House pat searched Ross for what she
deemed officer safety reasons. She testified that she felt “rigid objects” in his pocket, and
“became concerned that they could be used as a weapon.” She removed the objects and
found a syringe and several rounds of live ammunition.

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The state charged Ross with possession of ammunition by an ineligible person,
possession of a hypodermic needle, and trespass. At a cont ested omnibus hearing on
Ross’s motion to suppress the syringe and ammunition found in his pockets during the pat
search, Officer House was the state’s only witness. The district court denied Ross’s
motion, relying on Minn. Stat. § 629.34 (2016) to support its conclusion that the “officer
had probable cause to arrest and that a search incident to arrest is appropriate when the
officer has probable cause to arrest, which she did in this case.” The district court also
determined that Officer House properly searched Ross for officer safety reasons based on
her knowledge of Ross’s history and his behavior at the scene.
A jury found Ross guilty of unlawfully possessing ammunition and a hypodermic
needle; the trespass charge was dismissed at the state’s request . Before sentencing, Ross
stipulated that he had prior convictions . Ross admitted that he had pleaded guilty to
second-degree felony assault and that he was “ineligible to possess firearms or ammunition
going forward.”
At the sentencing hearing, the district court admitted exhibits 1 and 2, certified
copies of Ross’s two prior felony convictions. Exhibit 1 was a felony sentencing order for
a fifth-degree assault committed on June 25th, 2005. Exhibit 2 was a felony sentencing
order for “Assault – Second Degree” committed on August 15, 2005. Exhibit 2 does not
mention whether Ross used or possessed a firearm or other dangerous weapon in the
commission of the second-degree assault, nor does it list the statute Ross violated. At the
hearing, the state argued that because of Ross’s prior conviction for second-degree assault,
which the state claim ed involved the use of a firearm, his sentence for the possession of

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ammunition count was enhanced to a mandatory 60-month executed sentence pursuant to
Minn. Stat. § 609.11, subds. 5(b), 8(b) (2016) . Ross argued that the district court, acting
within its discretion, should impose a stayed sentence because he had been law abiding
since 2008 with no serious felonies since that time.
After considering the parties’ arguments, the district court rejected Ross’s assertions
that it had discretion, noting both that its “hands were tied based upon what the legislature
had passed,” but also that this case raised concerns about mass incarceration and its effects.
The district court concluded that it was “obliged by the statute to execute a sentence of 60
months” for the possession of ammunition charge. The district court imposed a concurrent
90-day sentence for the possession of a hypodermic needle count and, at the state’s request,
dismissed the trespass count. Ross appeals.
DECISION
I. The district court did not err in denying Ross’s motion to suppress
evidence seized during a warrantless pat search.

Ross argues that the district court erred by denying his motion to suppress evidence
seized by Officer House during a warrantless pat search. He contends that the district court
erred in applying both the search-incident-to-arrest exception and the presently-armed-and-
dangerous exception to the warrant requirement. “When reviewing pretrial orders on
motions to suppress evidence, we may independently review the facts and determine, as a
matter of law, whether the district court erred in suppressing —or not suppressing—the
evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). “When reviewing a district
court’s pretrial order on a motion to suppress evidence, we review the district court’s

6
factual findings under a clearly erroneous standard and the district court’s legal
determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quotation
omitted).
The Fourth Amendment to the United States Constitution and article I of the
Minnesota Constitution protect citizens from unreasonable searches and seizures. U.S.
Const. amend. IV; Minn. Const. art. I, § 10. A search performed without a warrant is per
se unreasonable unless it falls under a delineated exception to the warrant requirement.
State v. Munson , 594 N.W.2d 128, 135 (Minn. 1999). The state has the burden of
demonstrating the applicability of any such exception. State v. Flowers, 734 N.W.2d 239,
248 (Minn. 2007). If the state fails to meet its burden, the search or seizure is unlawful and
any evidence obtained as a result must be suppressed. State v. Metz, 422 N.W.2d 754, 756
(Minn. App. 1988).
A. Search-incident-to-arrest exception

On appeal, Ross argues —and the state appears to concede —that the district cou rt
erred in applying the search-incident-to-arrest exception to this case. The police may arrest
a suspect without a warrant when the officer has probable cause to believe that the suspect
has committed a crime. State v. Moorman, 505 N.W.2d 593, 599 (Minn. 1993). Minn. R.
Crim. P. 6.01, subd. 1(a) permits custodial arrests for misdemeanors only under certain
circumstances. Under subdivision 1(a) , law enforcement officers who de cide to charge
someone with a misdemeanor and act without a warrant “must issue a citation and release
the defendant unless it reasonably appears: (1) the person must be detained to prevent
bodily injury to that person or another; (2) further criminal cond uct will occur; or (3) a

7
substantial likelihood exists that the person will not respond to a citation.” Minn. R. Crim.
P. 6.01, subd. 1(a). Under Minn. Stat. § 629.34, subd. 1(c)(1) (2016), a police officer may
arrest a person without a warrant when a pu blic offense, including a misdemeanor, has
been committed or attempted in the officer’s presence. Smith v. Hubbard, 91 N.W.2d 756,
761 (Minn. 1958).
In denying appellant ’s motion to suppress, the district court determined that rule
6.01 did not apply. Specifically, the district court noted that rule 6.01 was “a rule of court.
It’s not a statute governing the actions of law enforcement. It’s a rule of court. So it applies
to court proceedings.” The district court instead ap plied only Minn. Stat. § 629. 34,
determining that the statute allows for arrest when a public offense occurs in the officer’s
presence, which it concluded to be the situation in this case. Relying solely on section
629.34, the district court found that Officer House had probable cause to arrest Ross, and
that a search incident to arrest was therefore appropriate.
The parties argue that both rule 6.01 and section 629.34 must be satisfied for a
custodial misdemeanor arrest to be lawful. The state asserts that “the procedural rule within
[r]ule 6.01 and the statute within section 629.34 were effectively merged, creating a rule
of law out of two different authorities.” The state thus contends that in order for an officer
to make a warrantless arrest of an individual for a misdemeanor, the individual must (1) be
in a public place, (2) commit the offense in the presence of an officer, and (3) meet one of
the elements of rule 6.01. The parties’ arguments are correct based on State v. Richmond,
where we found that Minn. Stat. § 629.34 applied, yet continued on to analyze whether rule

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6.01 was satisfied. 602 N.W.2d 647, 653 (Minn. App. 1999) , review denied (Minn. Jan.
18, 2000).
Both parties agree that Ross’s offense of trespass is a misdemeanor and that the
trespass was committed in Officer House’s presence, which does support a custodial arrest
under section 629.34. Minn. Stat. § 609.605, subd. 1(b)(8) (2016). But, Officer Hou se
provided no testimony that Ross needed to be detained because he might injure himself or
someone else, would engage in further criminal conduct, or was unlikely to respond to a
citation. Accordingly, based upon this record, we hold that rule 6.01 was not satisfied, and
the district court erred in applying the search -incident-to-arrest exception to the warrant
requirement.
B. Presently-armed-and-dangerous exception

Ross argues that the district court also erred in applying the presently -armed-and-
dangerous exception to the warrant requirement. “[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.” Flowers, 734 N.W.2d at 250 (quotation
omitted). “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 v. Ohio, 392 U.S. 1, 27 , 88 S. Ct.
1868, 1883 (1968). In determining whether reasonable suspicion exists, Minnesota courts
“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

9
competence of an untrained person.” State v. Richardson , 622 N.W.2d 823, 825 (Minn.
2001). The reasonable -suspicion standard is “less demanding than probable cause,” but
requires more than an unarticulated “hunch.” State v. Timberlake, 744 N.W.2d 390, 393
(Minn. 2008).
“To allow a weapons search in the absence of any threatening circumstances is a
dramatic departure from the longstanding holding in Terry.” In re Welfare of M. D. B. ,
601 N.W.2d 214, 217 (Minn. App. 1999) , review denied (Minn. Jan. 18, 2000) . But an
officer may perform a protective search of a person if (1) the person is known to be
habitually armed or to have a record of assaultive behavior; (2) the person assumes a hostile
or threatening attitude; or (3) through cursory examination, the police have a v alid reason
to believe the person is engaged in the commission of a more serious crime. State v. Curtis,
190 N.W.2d 636, 637 (Minn. 1971). If the police officer conducts a pat search and “feels
an object whose contour or mass makes its identity immediate ly apparent” as contraband,
a warrantless seizure of the object is justified. State v. Burton, 556 N.W.2d 600, 601 (Minn.
App. 1996), review denied (Minn. Feb. 26, 1997) (quotation omitted).
Ross argues that the Curtis factors do not support Officer Hou se’s warrantless pat
search because (1) Ross was not known to be habitually armed, (2) Officer House was not
investigating a violent or serious crime in which a weapon is usually involved, (3) Officer
House’s only knowledge of any prior assaultive behavior by Ross related to a call a year
earlier in which Ross was not charged, and (4) Officer House testified that she was
unfamiliar with any court cases involving Ross besides this one.

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Next, Ross argues that even if Officer House was aware of Ross’s prior cr iminal
record, “Terry does not authorize a search based solely on criminal history.” Ross contends
that the state failed to produce the evidence necessary to support a finding that Officer
House believed Ross was armed and “capable of immediately causing permanent harm.”
State v. Varnado , 582 N.W. 2d 886, 889 (Minn. 1998). Ross claims that evidence that
Officer House believed she was in danger—much less immediate danger—is lacking from
the record, citing Officer House’s testimony that Ross did not threaten or menace her in
any way. He also argues that Officer House never testified that she suspected Ross was
armed. Ross does not discount Officer House’s testimony that people reaching their hands
into their pockets is an officer safety issue. However, he responds that even though there
was a squad car video on during the stop, there is no video or audio evidence to support
Officer House’s testimony that Ross was repeatedly putting his hands in his pockets.
Ross further alleges that his behavior exhibiting nervousness or fidgety actions does
not provide the basis for a pat search because it was unaccompanied by a hostile attitude
or a suspicion of more serious criminal behavior. Ross contends that the record shows that
he was cooperative because he approached Officer House’s squad car as directed, stayed
near the squad car while Officer House sat inside, and produced the trespass notice he was
alleged to have violated.
Responding to Ross’s a rguments, the state notes that even though Officer House
had just seen Ross leaving the Four Seasons apartment complex on a bicycle and
possessing a dog, Ross denied those facts. The state also cites the following evidence as
supporting Officer House’s concerns for her safety and her decision to do a pat search: (1)

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Officer House’s testimony that Ross was “nervous, fidgety, grabbing a lot, putting his
hands in his pockets, looking around, pacin g, and not following directions ”; (2) Ross’s
attempt to sit on the curb; (3) Ross’s movements up and down the side of Officer House’s
squad car; (4) Officer House’s frustration that Ross was moving around and not following
her directions ; and (5) Officer House’s testimony that she was concerned about Ross
putting his hands in his pockets and considered such behavior to be an officer safety issue
based on her training. Finally, the state emphasized Officer House’s familiarity with Ross
from suspicious calls, potential burglary reports, and assault investigations , one of which
involved the use of a weapon.
Based on the totality of these circumstances encountered and observed by Officer
House in her interaction with Ross, we conclude that the district court did not err in finding
that Officer House had a reasonable, articulable suspicion from her perspective as a trained
police officer that Ross may be armed and dangerous. As set forth above, the evidentiary
record contains specific and articulable facts supporting Officer House’s concern that Ross
presented an officer s afety risk. The district court, by implicitly finding Officer House’s
testimony to be credible, was able to discount Ross’s argument that the squad car video did
not capture his movements on the basis of evidence that Officer House was unable to get
him t o stand still in front of the squad car where the video was positioned. We also
acknowledge that Officer House, as a trained law enforcement official, is permitted to make
inferences and deductions that would be beyond the competence of an untrained perso n.
Richardson, 622 N.W.2d at 825. Officer House indicated that b ased on this training, she
considered Ross’s behavior to be an officer safety issue. Because we conclude that the

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presently-armed-and-dangerous exception applied to Officer House’s warrantless pat
search of Ross, we hold that the district court did not abuse its discretion in denying Ross’s
motion to suppress evidence seized during the search.
II. Did the district court err by determining that it did not have the
discretion to depart and sentencing Ross to the mandatory minimum?

Ross argues that the district court erred by not exercising its discretion in
considering a downward departure. We review a district court’s de cision not to depart
from the sentencing guidelines for an abuse of discretion. State v. Kindem, 313 N.W.2d 6,
7 (Minn. 1981). A district court abuses its discretion when its decision is premised on legal
errors or its decision is unsupported by the record. State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016). We review questions of law de novo. State v. Barker, 705 N.W.2d 768, 771
(Minn. 2005).
A defendant convicted of being a prohibited person in possession of a firearm or
ammunition, who has been previously convicted of a second-degree assault, is subject to a
mandatory minimum sentence and “shall be committed to the commissioner of corrections
for not less than five years.” Minn. Stat. § 609.11, subds. 5(b), 8(b). Generally, a district
court has the discretion to depart from this mandatory minimum sentence if substantial and
compelling reasons support departure. Minn. Stat. § 609.11, subd. 8(a) (2016); see State
v. Olson , 325 N.W.2d 13, 17 –19 (Minn. 1982). But a district court does not have the
discretion to depart from the mandatory minimum sentence if the defendant has committed
a prior crime, listed in Minn. Stat. § 609.11, subd. 9 (2016), in which the defendant “used
or possessed a firearm or other dangerous weapon.” Minn. Stat. § 609.11, subd. 8(b).

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Upon the state’s request for a mandatory minimum sentence under section 609.11,
a district court “shall allow the state to prove beyond a reasonable doubt to a jury . . . the
factors in support of the state’s request.” Minn. Stat. § 244.10, subd. 5(a) (2016). Whether
a defendant, at the time of the commission of an offense to which a mandatory minimum
sentence applies, used or had possession of a firearm “shall be determined by the fact finder
at the time of a verdict or finding of guilt at trial or the entry of a plea of guilty based upon
the record of the trial or the plea of guilty.” Minn. Stat. § 609.11, subd. 7 (2016). “[T]he
decision to apply the mandatory minimum sentence, like a decision to depart from the
guideline presumptive sentence, r equires judicial fact -finding.” Barker, 705 N.W.2d at
773.
A criminal defendant has the right to a jury trial to determine whether aggra vating
sentencing factors exist. See Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531,
2536 (2004). “[A]ny facts supporting a departure above the maximum guidelines sentence
requires either a jury to find those facts beyond a reasonable doubt or the defendant to
admit to those facts.” State v. Bradley, 906 N.W.2d 856, 858 (Minn. App. 2017), review
denied (Minn. Feb. 28, 2018). A defendant may waive his rights to a Blakely jury trial, but
[a]n express, knowing, voluntary, and intelligent waiver of the
right to a jury determination of facts supporting an upward
sentencing departure is required before a de fendant’s
statements at his guilty -plea hearing may be used to enhance
his sentence beyond the maximum sentence authorized by the
facts established by his guilty plea.

State v. Dettman, 719 N.W.2d 644, 646 (Minn. 2006).

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Ross argues that the district court’s imposition of an enhanced sentence under Minn.
Stat. § 609.11, subd. 8(b) , was inappropriate for two reasons: first, Minn. Stat. § 609.11
requires a jury determination to trigger a hard mandatory sentence , and second, the facts
used to increase Ross’s sentence were not found by a factfinder. Ross contends that
subdivision 8(b) only applies here if the state demonstrates that (1) Ross had a prior
conviction of an offense listed in subdivision 9, and (2) Ross used or possessed a firearm
or other dangero us weapon in the commission of that offense. Ross argues that both of
these factors must be found by a factfinder.
Ross admits that his second-degree assault conviction is an enumerated crime listed
in subdivision 9. However, in claiming that the district court erred by failing to exercise
its discretion, Ross argues that his prior assault conviction is “not enough to invoke the
hard mandatory sentence of subdivision 8(b)” without a jury finding at the time of verdict
that the prior conviction involved the use or possession of a firearm or dangerous weapon.
Ross contends that since a jury did not make the findings required to trigger the application
of subdivision 8(b), the district court was not required to impose a 60 -month sentence to
comply with section 609.11.
The state responds that prior convictions do not need to be presented to the jury.
The state assumes that Ross’s second-degree assault conviction necessarily implies that he
used a dangerous weapon in the commission of the offense , since convi ction of second -
degree assault requires the use of a dangerous weapon. Essentially, what the state is
arguing is that it may use documentation evidence of Ross’s prior conviction for second
degree assault to show both that (1) Ross had a prior conviction of an offense listed in

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subdivision 9, and (2) Ross used or possessed a firearm or other dangerous weapon in the
commission of that offense, such that it was not necessary to have a Blakely trial regarding
whether Ross used or possessed a firearm in commission of the offense.
In this case, the state is correct to assert that Ross’s prior convictions did not need
to be presented to the jury because Ross stipulated that he had a prior conviction of second-
degree assault, waiving his right to a jury determination of that fact. However, Ross’s mere
stipulation that he had a prior conviction of second-degree assault was insufficient, without
more, to waive his right to have a jury determine that this prior conviction involved the use
of a firearm or dangerous weapon. The plain language of Minn. Stat. § 609.11, subd. 7,
requires the jury to determine whether the prior conviction included the use of a firearm or
dangerous weapon, even if the conviction is one that necessarily requires the use of a
firearm or dangerous weapon. Notably, subdivision 7 does not list any caveats to this
requirement:
The question of whether the defendant or an accomplice, at the
time of the commission of an offense listed in subdivision 9,
used a firearm or other dangerous weapon or had in possession
a firearm shall be determined by the fact finder at the time of a
verdict or finding of guilt at trial or the entry of a plea of guilty
based upon the record of the trial or the plea of guilty.

Minn. Stat. § 609.11, subd. 7 (emphasis added).

The state provides no authority that would allow the district court to disregard
subdivision 7’s plain language. In this case, all that was contained in the record was Exhibit
2, a felony sentencing order for “Assault – Second Degree” committed on August 15, 2005.
The order does not contain a statute number for the offense nor does it contain any of the

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underlying facts supporting the conviction. Ross could have stipulated that he used a
firearm or dangerous weapon in the commission of the second -degree assault as set forth
in Exhibit 2, thereby waiving his right to a Blakely trial under Minn. Stat. § 609.11, subd.
7, but he did not do so. Because Ross did not specifically waive his right to have a jury
determine whether his prior conviction involved the use of a firearm or dangerous weapon,
and the state failed to submit this question to the jury, the district court was not required to
execute the imposed sentence under subdivision 8(b).
Given that the record does not support a finding that Ross stipulated that the second-
degree assault charge for which he was convicted involved the use or possession of a
firearm or dangerous weapon, and the mere proof of the conviction is insufficient to prove
this additional fact, we hold that the district court erred by failing to empanel a Blakely jury
to consider the issue. We reverse Ross’s sentence due to the district court’s error and
remand to the district court for resentencing. On remand, the district court may empanel a
sentencing jury to determine whether Ross ’s prior conviction meets the requirement of
subdivision 7 that would trigger a mandatory sentence under subdivision 8(b). See
Hankerson v. State , 723 N.W.2d 232 , 237 (Minn. 2006) (holding that a sentencing trial
following a Blakely infringement does not violate a defendant’ s double-jeopardy rights
because it is not a second prosecution).
Affirmed in part, reversed in part, and remanded.