State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A21-0209

State of Minnesota,
Respondent,

vs.

Emilio Nieto,
Appellant.

Filed December 13, 2021
Affirmed in part, reversed in part, and remanded
Frisch, Judge

Nobles County District Court
File No. 53-CR-20-43

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

Joseph M. Sanow, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Frisch, Judge; and Halbrooks,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
FRISCH, Judge
On appeal from a conviction for importing controlled substances across state
borders, appellant argues that the arresting officer impermissibly expanded the scope of the
traffic stop and that the evidence at trial was insufficient to prove his guilt. We affirm in
part, reverse in part, and remand for further proceedings.
FACTS
In the early morning hours of January 13, 2020, a Worthing ton police officer was
stationed near Highway 60 and Interstate 90 . The officer observed a vehicle exit the
interstate, pass the officer’s squad car, and immediately return to the interstate. The officer
believed this conduct to be unusual and decided to follow the vehicle. The officer observed
multiple traffic violations and eventually stopped the vehicle. Appellant Emilio Nieto was
in the front passenger seat of the vehicle, and his aunt was in the driver’s seat.
Following discussions with Nieto and his aunt, the officer asked the aunt for her
consent to search the vehicle, which she granted. During the search, the officer discovered
a total of 25 pounds of methamphetamine inside the vehicle. The officer arrested Nieto
and his aunt.
Respondent State of Minnesota charged Nieto with first-degree possession of
methamphetamine in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2018), importing
controlled substances across s tate borders in violation of Minn. Stat. § 152.0261, subd. 1
(2018), and conspiracy to import controlled substances across state borders in violation of
Minn. Stat. §§ 152.0261, subd. 1, .096, subd. 1 (2018). Nieto filed a motion to suppress
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the evidence obtained from the search , alleging that the officer lack ed a reasonable,
articulable suspicion to expand the traffic stop. Following a contested hearing, the district
court denied the motion to suppress.
The district court held a court trial on Septemb er 3, 2020. The arresting officer
testified that he discovered methamphetamine in the rear area of the vehicle as well as
inside of a backpack located in the backseat.
The state also introduced into evidence a n audio recording and transcript of an
interview of Nieto by a narcotics detective. Nieto told the detective that he was
accompanying his aunt on a car trip to assist with driving. The trip originated in Arizona
and Nieto believed they were going to Las Vegas. But during the trip, Nieto learned that
the destination was not Las Vegas. When Nieto and his aunt reached Utah, he picked up
his aunt’s backpack , and it felt very heavy to him. Nieto’s aunt told him that there was
“sh-t” in the backpack, and Nieto understood “sh-t” to mean methamphetamine. At some
point, Nieto understood that he and his aunt would be traveling to Minnesota and that the
drugs in the car were to be delivered to someone in Owatonna, although he did not know
the identity of the recipient. Nieto clarified that he never physically handled any drugs.
The district court found Nieto guilty of all three charges and made the following
findings of fact , relevant to this appeal . Nieto accompan ied his aunt on a cross -country
trip to assist her with driving. An officer stopped a vehicle driven by Nieto’s aunt , with
Nieto sitting in the front passenger seat. In the vehicle, the officer located two backpacks:
an empty black backpack belonging to Nieto and a gray backpack filled with
methamphetamine. The officer also discovered m ethamphetamine in the rear of the
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vehicle. Nieto did not know about the drugs in the car when his aunt picked him up in
Arizona. Sometime later while they were driving through Utah, Nieto moved the gray
backpack and discovered that it was very heavy. Nieto’s aunt told him that the backpack
contained “sh-t,” which Nieto understood to mean methamphetamine.
The district court concluded that Nieto knowingly and unlawfully possessed a
controlled substance and imported it across state lines in violation of Minn. Stat.
§ 152.0261, subd. 1, and sentenced him to 86 months’ imprisonment.1
This appeal follows.
DECISION
I. The officer had a reasonable, articulable suspicion to expand the traffic stop to
search the vehicle.

Nieto first argues that the officer did not have a reasonable, articulable suspicion to
expand the traffic stop to search the vehicle and that the district court should have
suppressed the evidence obtained from the search.
When reviewing pretrial orders on motions to suppress evidence, we may
independently review the facts and determine whether the district court erred in not
suppressing the evidence as a matter of law. State v. Harris, 590 N.W.2d 90, 98 (Minn.
1999). We review the district court’s factual findings for clear error and its legal
determinations de novo. State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009).

1 The district court found Nieto guilty of all three counts, but no conviction was entered
for counts 1 and 3 and a sentence was only pronoun ced for the violation of Minn. Stat.
§ 152.0261, subd. 1.
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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. Accordingly, evidence
obtained pursuant to an unconstitutional search or seizure must be suppressed. State v.
Diede, 79 5 N.W.2d 836, 842 (Minn. 2011). Warrantless searches and seizures are
generally unreasonable. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). But police
may conduct “[a] limited investigative stop . . . if there is a particularized and objective
basis for suspecting the person stopped of criminal activity.” State v. Wiegand , 645
N.W.2d 125, 135 (Minn. 2002).
Moreover, officers may expand “the scope of the stop” to investigate “other
suspected illegal activity” only if the officer has reasonable, a rticulable suspicion of such
other illegal activity. Id. (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)). A search that is
not closely connected to the initial justification for the stop must, therefore, be supported
by independent reasonable suspicion. State v. Askerooth , 681 N.W.2d 353, 364 (Minn.
2004).
The reasonable -suspicion standard is met when an officer observes conduct that
leads the officer to “reasonably conclude in light of his or her experience that criminal
activity may be afoot.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation
omitted). This standard is not high, but it requires more than an unparticularized hunch.
Id. “It is enough that a law enforcement officer can articulate specific fac ts which, taken
together with rational inferences from those facts, objectively support the officer ’s
suspicion.” State v. Lugo, 887 N.W.2d 476, 486 (Minn. 2016). When determining whether
6
an officer reasonably suspected criminal activity, we consider the totality of the
circumstances. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998).
Nieto argues that the officer failed to articulate reasons sufficient to justify an
expansion of the stop to include a search of the vehicle. Although Nieto acknowledges that
the officer identified particular reasons for expanding the stop, Nieto argues these reasons
do not inherently suggest criminal activity and are consistent with innocent behavior . We
disagree.
At the contested omnibus hearing, the officer set forth his justification for the
expansion of the stop to search the vehicle, including (1) the observed suspicious driving
activity of exiting the interstate, passing the officer’s squad car, and then immediately
reentering the interstate in the middle of the night; (2) observations of Nieto’s nervous
behavior; (3) an “overwhelming” smell of air freshener in the vehicle , which the officer
testified was consistent with his experience that drug traffickers sometimes use air
fresheners to mask the odor of drugs; (4) the abnormal lack of luggage for a cross-country
trip; (5) discrepancies in the vehicle information provided by Nieto’s aunt, including a
lapse in the vehicle registration, a VIN check showing a different registered owner of the
vehicle, and an insurance-policy term that did not align with the vehicle registration date,
all of which were similar to discrepancies that the officer had encountered in previous cases
involving the transportation of narcotics ; (6) “unusual, suspicious” behavior by Nieto’s
aunt while speaking with the officer; (7) vague and conflicting stories given by Nieto and
his aunt about their trip and planned destination ; (8) the Las Vegas vehicle registration,
which the officer testified to be a known drug trafficking hub; and (9) Nieto’s aunt’s prior
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arrest for possessing drugs in her vehicle. Importantly, the officer relied upon his expertise
and prior experiences involving the trafficking of narcotics to draw reasonable inferences
from these observations to expand the traffic stop to search the vehicle.
Nieto cites to authority where observations similar to some of those described above
were deemed insufficient to provide a basis for expanding a traffic stop. See State v. Fort,
660 N.W.2d 415, 416-17, 419 (Minn. 2003) (finding that a passenger displaying signs of
nervousness and that stop occurred in high-crime area did not justify expanding the stop);
State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (finding the strong smell of cologne,
presence of cigars, and prior reports of crime in the area to be insufficient reasons to expand
a stop), rev. denied (Minn. Mar. 18, 1997). But we do not view these reasons in isolation.
See Martin son, 581 N.W.2d at 852 (“[W]hile each individual factor is consistent with
innocent travel, all of the factors together may amount to reasonable suspicion.”). Unlike
the cases cited by Nieto involving limited reasons to expand a traffic stop, here, the officer
cited numerous reasons, which, taken together, establish a reasonable, articulable basis to
have expanded the scope of the traffic stop. We therefore find no error by the district court
in its conclusion that the officer articulated a reasonable bas is in light of his observations
and experience to conclude that criminal activity may have been afoot.
II. The evidence is insufficient to sustain Nieto’s conviction.
Nieto argues that the evidence presented at trial was insufficient to prove beyond a
reasonable doubt that he possessed the methamphetamine found in the vehicle.
In evaluating sufficiency -of-the-evidence challenges, we “carefully examine the
record to determine whether the facts and the legitimate inferences drawn from them would
8
permit the factfinder to reasonably conclude that the defendant was guilty beyond a
reasonable doubt.” State v. Waiters , 929 N.W.2d 895, 900 (Minn. 2019) (quotation
omitted). We assume that the fact -finder “believed the state’s witnesses and disbelieved
any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This
standard of review applies so long as a conviction is adequately supported by direct
evidence. State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016). Direct evidence is “evidence
that is based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation
omitted).
If the state uses circumstantial evidence to prove an element of the offense, we apply
a heightened standard of review to the evidence underlying that element. State v. Porte ,
832 N.W.2d 303, 309 (Minn. App. 2013). Circumstantial evidence is “evidence from
which the factfinder can infer whether the facts in dispute existed or did not exist.” Harris,
895 N.W.2d at 599 (quotation omitted).
To be convicted of importing a controlled substance across state borders , the state
was required to prove that Nieto crossed into Minnesota “while in possession of an amount
of a controlled substance that constitutes a first-degree controlled substance crime.” Minn.
Stat. § 152.0261, subd. 1 . “The state bears the burden of proving all the elements of an
offense beyond a reasonable doubt, and the prosecutor is prohibited from shif ting the
burden of proof to a defendant to prove his innocence. ” Finnegan v. State , 764 N.W.2d
856, 864 (Minn. App. 2009), aff’d, 784 N.W.2d 243 (Minn. 2010).
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Possession may be proved through evidence of constructive possession. 2 Harris,
895 N.W.2d at 601. Constructive possession exists where “the state cannot prove actual
or physical possession at the time of the arrest but where the inference is strong that the
defendant at one time physically possessed the [narcotics] and . . . continued t o exercise
dominion and control over it up to the time of the arrest.” State v. Florine, 226 N.W.2d
609, 610 (Minn. 1975). The state may establish constructive possession in two ways :
(1) by showing that the contraband was found in a place subject to th e defendant’s
exclusive control where others did not normally have access or (2) if found where others
did have access, by showing that “there is a strong probability (inferable from other
evidence) that at the time the defendant was consciously exercising dominion and control
over it.” Id. Constructive possession may be proved by direct or circumstantial evidence.
State v. German, 929 N.W.2d 466, 472 (Minn. App. 2019). “A defendant may possess an
item jointly with another person.” Harris, 895 N.W.2d at 601.
The state argues that the direct -evidence standard of review appl ies because the
officer’s observations and Nieto’s statements established that Nieto drove with his aunt
across state lines knowing that drugs were in the car. This argument, however, conflates
“knowledge” with “possession.” While the state proved through direct evidence that Nieto
was aware of the existence of drugs in the car, the direct evidence does not establish that
Nieto possessed those drugs. Nieto was not driving when the officer stopped the vehicle.
The drugs were not discovered in Nieto’s backpack or with any of his property. Nieto

2 The parties agree that there is no evidence that Nieto actually or physically controlled
the drugs at the time of his arrest.
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stated that he did not own the drugs, and no drugs were found on his person . And there
was no direct evidence that Nieto possessed or exercised control over the drugs at the time
of the stop. To convict based on Nieto’s statement that he accompanied his aunt on the trip
to assist her with driving requires an inference that he intended to transport the drugs in the
car. In othe r words, the state actually relies on circumstantial evidence to support its
conclusion that Nieto constructively possessed the drugs.
We review the sufficiency of circumstantial evidence by conducting a two -step
analysis. German, 929 N.W.2d at 472. First, we identify the circumstances proved by the
state. State v. Silvernail , 831 N.W.2d 594, 598 (Minn. 2013). We “assume that the
[fact-finder] resolved any factual disputes in a manner that is consistent” with the verdict.
State v. Moore , 846 N.W.2d 83, 88 (Minn. 2014). Second, we determine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis other than guilt. Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017). We do
not defer to the fact-finder’s choice between reasonable inferences. Silvernail, 831 N.W.2d
at 599. We must reverse the conviction if a reasonable inference other than guilt exists.
Loving, 891 N.W.2d at 643. But we will uphold the verdict if the circumstantial evidence
forms “a complete chain” which leads “directly to the guilt of the defendant as to exclude
beyond a reasonable doubt any reasonable inference other th an guilt.” State v. Peterson,
910 N.W.2d 1, 7 (Minn. 2018) (quotation omitted).
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We first determine the circumstances proved by the state. Silvernail, 831 N.W.2d
at 598. Nieto accompanied his aunt on a trip to assist her with driving.3 The trip started in
Arizona. Nieto was unaware of the existence of drugs in the vehicle at the start of the trip.
When Nieto and his aunt reached Utah, Nieto picked up the grey backpack belonging to
his aunt and discovered that it was heavy. Nieto’s aunt informed him t hat the backpack
contained “s h-t” and Nieto understood his aunt’s statement to mean that the backpack
contained methamphetamine. An officer in Minnesota stopped the vehicle. The vehicle
was driven by Nieto’s aunt and Nieto was sitting in the front passenger seat. Inside of the
vehicle, the officer discovered two backpacks: an empty black backpack belonging to
Nieto located on the middle rear passenger seat and a gray backpack filled with
methamphetamine located on the floor behind the passenger seat. Methamphetamine was
also discovered in the rear of the vehicle.
We next consider whether the circumstances proved are consistent with the
defendant’s guilt and preclude any rational hypothesis inconsistent with his guilt. Loving,
891 N.W.2d at 643. The state contends that the only reasonable inference that can be drawn

3 We note that the details regarding Nieto and his aunt’s trip t o Minnesota were elicited
during an interview with law enforcement facilitated by an interpreter. Our review of the
transcript suggests that language barriers may have affected Nieto’s ability to fully
comprehend the investigator’s questions. However, Ni eto has made no argument that his
statements to the investigator were involuntary or should be suppressed.
We also note that the district court did not make any explicit credibility
determinations regarding the veracity of Nieto’s statements to the office rs. Even if the
district court believed that Nieto did not fully disclose the extent of his involvement in
transporting drugs, the absence of such evidence is not affirmative proof of Nieto’s
involvement. Thus, even if we excluded from the circumstances proved Nieto’s statements
to the investigators, we would still conclude that there are no circumstances proved that
would exclude the reasonable inference that Nieto never actually drove the vehicle.
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from the circumstances proved was that Nieto constructively possessed the
methamphetamine in the vehicle. We disagree.
The state argues that Nieto constructively possessed the met hamphetamine by
exercising dominion and control over it because he drove the vehicle containing the drugs
across the country with his aunt. The district court adopted this theory. However, the
circumstances proved do not establish that Nieto ever actually drove the vehicle. The
circumstances proved only establish th at Nieto accompanied his aunt on the trip to assist
with driving. Even assuming that Nieto drove the vehicle at some point, the circumstances
proved do not establish that Nieto drove the vehicle after he learned that drugs were present
inside of the vehicle. The district court’s conclusion that Nieto was guilty because he
“controlled the movement of the methamphetamine across the country when he became
aware of the nature of the substances in the car and continued to help drive them to
Minnesota” is not supported by any evidence in the record. Although the district court
inferred that Nieto did indeed drive the vehicle at some point after learning of the presence
of the drugs, we are not required to give deference to this inference. Silvernail, 831 N.W.2d
at 599. The record contains no evidence that Nieto actually drove the vehicle at any time
or otherwise control led the movement of the drugs, including after he discovered the
presence of drugs in the vehicle . And none of the circumstances proved compel such an
inference to the exclusion of all others. See State v. Sam, 859 N.W.2d 825, 835-36 (Minn.
App. 2015) (identifying methods by which the state can eliminate other rational hypotheses
inconsistent with guilt in contraband cases). In other words, the factual l inchpin of both
the state’s case and the finding of guilt by the district court is not supported by the record.
13
See State v. Novak, 233 N.W. 309, 310 (Minn. 1930) (concluding that the district court’s
rejection of defendant’s testimony cannot alone support a finding of fact to the contrary).
Here, the circumstances proved do not preclude the rational hypothesis tha t Nieto
did not drive the car after he became aware of the presence of drugs in the vehicle . The
circumstances proved permit the rational hypothesis that Nieto remained a passenger in the
car as it traveled to Minnesota and exercised no dominion or contro l over the drugs or
transport of those drugs. See Florine, 226 N.W.2d at 610 (explaining that state must prove
that defendant constructively possessed illegal substances and have knowledge of the
nature of the substance). The circumstances proved permit the rational hypothesis that
Nieto did not exercise any control over the movement of the drugs in the vehicle. Because
the circumstances proved do not preclude a rational hypothesis inconsistent with guilt, we
reverse Nieto’s conviction for importing controlled substances across state borders.
Finally, t he district court also found Nieto guilty of two additional charges,
first-degree possession of methamphetamine in violation of Minn. Stat. § 152.021,
subd. 2(a)(1), and conspiracy to import controlled substances across state borders in
violation of Minn. Stat. §§ 152.0261, subd. 1, .096, subd. 1. Because the district court did
not adjudicate guilt or pronounce sentence on either count, the merits of the district court’s
findings are not properly before us on appeal. Minn. R. Crim. P. 28.02, subd. 2(1) (stating
that an appeal taken from a final judgment means “when the district court enters a judgment
of conviction and imposes or stays a sentence” (emphasis added)). And because these two
convictions are not properly before us on appeal, we do not decide whether the evidence
was sufficient to sustain these convictions. See State v. Ashland , 287 N.W.2d 649 , 650
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(Minn. 1979) . We therefore remand to the district court for consideration of the
unadjudicated convictions in a manner consistent with this opinion.
Affirmed in part, reversed in part, and remanded.