Deiven Jacques Branch, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0725

Deiven Jacques Branch, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 11, 2021
Affirmed
Jesson, Judge

Carver County District Court
File No. 10-CR-17-1288

Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Mark Metz, Carver County At torney, Kevin A. Hill, Assist ant County Attorney, Chaska,
Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Cochran, Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Deiven Branch wa s initially stopped on susp icion of driving with a
suspended license. After he admitted to sm oking marijuana and handed the arresting
officer a burnt marijuana joint, the officer expanded the stop to include a search of Branch’s

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car. Branch argues that the officer lacked pr obable cause to expand the stop to include a
search of his vehicle and that his right to a speedy trial was violated. Because we conclude
that the postconviction court did not abuse its discretion in denying Branch’s petition for
relief on these challenges, we affirm.
FACTS
In late 2017, law enforcement stopped ap pellant Deiven Branch on suspicion of
driving with a suspended license. During the stop the officer noticed a strong odor of burnt
marijuana coming from the car. When asked about the smell, Branch admitted to having
smoked marijuana earlier that day and produced a small burnt marijuana joint. The officer
had Branch exit the car, and when backup arrived, searched the vehicle. The search yielded
an open bottle of Bacardi Limon rum, a makeup container with trace amounts of THC wax
inside, two stun guns, and a black pistol. Branch was placed under arrest and charged with
possession of a firearm by a felon, possession of an electronic incapacitation device by a
prohibited person, fifth-degree possession of a controlled substance, driving with a
suspended license, and possession of an open bottle.1
At a hearing on January 17, 2018, Branch requested a contested omnibus hearing to
determine whether the stop, search, and seiz ure were valid. Branch also demanded a
speedy trial. To satisfy Branch’s requests, the district court scheduled a contested omnibus
hearing for February 22, 2018, and a jury trial for March 13, 2018.

1 Minn. Stat. § 152.025, subd. 2(1) (2016); Minn. Stat. § 1 69A.35, subd. 3 (2016); Minn.
Stat. § 171.24, subd. 1 (2016); Minn. Stat . § 609.165, subd. 1b(a) (2016); Minn.
Stat. § 624.731, subd. 3(b) (2016).

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At the contested omnibus hearing, the dist rict court heard both parties’ arguments
and testimony from the arresting officer. Base d on the information presented, the district
court determined that the initial stop was justified and the arresting officer had “reasonable
articulable suspicion” that further evidence of possession of marijuana was in the car.
Because of this, the expansion of the stop was permissible, and evidence resulting from the
search would not be suppressed at trial.
Then, on February 28, 2018—before Branch ’s jury trial began—the state moved for
a continuance. According to the state, DNA test results on samples taken from the gun
would not be available until afte r the scheduled trial date. Ov er Branch’s objection, the
district court found that there was good cause to delay, granted the state’s motion, and set
a new trial date for April 3, 2018.
No other delays occurred. A jury tria l commenced on April 3, 2018. At the
conclusion of the three-day trial, the jury delivered guilty verdic ts on the charges of
possession of a firearm by a felon, possession of an electronic incapacitation device by a
prohibited person, and possession of a Schedule I controlled substance.
2 The district court
sentenced Branch to 60 months for the conviction of possession of a firearm by a felon, but
declined to sentence him on the two remaining convictions.
Branch filed a petition for postconviction relie f challenging the legality of the search
of his vehicle and asserting that he was deprived of his right to a speedy trial. In reviewing
Branch’s case, the postconviction court determin ed that the officer ha d probable cause to

2 The state moved to dismiss the charges of driving with a suspended license and possession
of an open bottle, which the district court granted.

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search Branch’s vehicle after Branch produced the burnt marijuana joint and that there was
good cause for the delay of trial. Based on these conclusions, Branch’s petition was denied.
Branch appeals.
DECISION
Branch appeals the postconviction court’s conclusions of law that the search was a
permissible expansion of the initial stop and that Branch’s right to a speedy trial was not
violated. We review the denial of a petition for postconviction relief for an abuse of
discretion. Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). But while legal issues
are reviewed de novo, factual findings are reviewed for clear error. Id.
I. The search of Branch’s car was a pe rmissible expansion of the initial stop.
In his petition for postconviction relief, Branch argued that the search of his car was
impermissible because the offi cer lacked probable cause to expand the stop. Branch
conceded that the officer had probable cause to suspect ma rijuana use when he smelled
burnt marijuana during the stop. But once Branch admitted to smoking marijuana and
produced a burnt joint, Branch contends that probable cause evaporated. The
postconviction court disagreed and determined that under State v. Thiel , the search was
permissible. 846 N.W.2d 605, 611 (Minn. App. 2014).
We agree with the postconviction court. In Thiel, the appellant was initially stopped
for speeding. Id. at 609. When the state trooper conducting the stop noticed a strong smell
of marijuana coming from the car, he asked wh ether there was any marijuana in the car.
Appellant responded by handing the trooper a pipe containing a small amount of burnt
marijuana. Id. Believing there was more marijuana in the vehicle, the trooper had a canine

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unit conduct a sniff of the car. Id. When the dog alerted, the trooper searched the vehicle
and found two mason jars of raw marijuana. Id.
On appeal, this court concluded that the “discovery of marijuana in a car gives law
enforcement probable cause to search for more anywhere in the car where one might
reasonably expect to find marijuana.” Id. at 611. It did not matter that the appellant
produced the pipe. Id.
Thiel dictates the outcome of this case. As in Thiel, Branch was stopped for reasons
unrelated to the presence of an illegal substance. Despite the fact that Branch produced a
burnt marijuana joint, the offi cer suspected that additional co ntraband was in the car.
Under Thiel, the officer had “probable cause to search for more anywhere in the car where
one might reasonably expect to find marijuana.” Id. As such, the officer could permissibly
expand the traffic stop to search Branch’s car.
Because the postconviction court correctly a pplied the relevant law and its decision
is supported by the record, it did not abuse its discretion in determining that the stop was
permissibly expanded to include a search. Next, we consid er whether the postconviction
court abused its discretion when it concluded that Branch’s right to a speedy trial was not
violated.
II. Branch was not denied hi s right to a speedy trial.
When defendants demand their speedy trial ri ghts, trials must begin within 60 days,
unless there is good cause for a delay. Minn. R. Crim. P. 11.09(b). To determine whether
a defendant’s right to a speedy trial has been violated, the court must consider four
factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant

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asserted their right to a speedy trial; and (4) whether the defendant was prejudiced because
of the delay. State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999).
Branch asserted that his right to a speedy trial was violated when the district court
granted the state’s motion for a continuance. According to Branch, the 17-day delay
requested by the state was not for good cause because DNA evidence from the gun was not
materially significant to the case. State v. Stroud, 459 N.W.2d 332, 335(Minn. App. 1990).
And the result of this delay was continued incarceration, which prejudiced Branch.
The postconviction court disagreed. Despite Branch’s reliance on Stroud, the
postconviction court determined that the decision actually supported the opposite
conclusion: DNA evidence is signifi cant because it may “implicate or exonerate” the
defendant. Id. at 335 (emphasis added). As such, th ere was good cause to delay the trial
until the DNA results were available. Furthermore, the delay, while “unfortunate” in that
it resulted in additional incarceration time, was not prejudicial to Branch.
We agree with the postconviction court. There is no dispute that Branch demanded
a speedy trial and that the trial was delayed 17 days beyond the 60-d ay period. But the
delay was for good cause. The state was required to prove beyond a reasonable doubt that
Branch had either actual or constructive pos session of the gun. Because the state did not
know whether any DNA was present on the gun and had not taken a statement from
Branch’s passenger, it was materially relevant to know the DNA test results. As in Stroud,
the DNA test would either “implicate or ex onerate” Branch’s actual or constructive
possession of the gun. Id. Furthermore, Branch was not unduly prejudiced by the delay.
The only claim of prejudice Branch raises in his petition is that of continued incarceration.

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But “anxiety suffered from pretrial incarcera tion is . . . not a serious allegation of
prejudice.” State v. Givens, 356 N.W.2d 58, 62 (Minn. App. 1984). This is particularly
the case here, given the relatively brief 17-day delay.
In sum, our review of the record and relevant law confirms the postconviction
court’s conclusions that the search of Bran ch’s car was a permissible expansion of the
initial stop and there was good cause to delay hi s trial. As such, the postconviction court
did not abuse its discretion when it denied Branch’s petition for postconviction relief.
Affirmed.