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This opinion is nonprecedential except as provided by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
A21-0363

State of Minnesota,
Respondent,

vs.

Rebecca Jane King,
Appellant.

Filed February 28, 2022
Affirmed
Bryan, Judge

Crow Wing County District Court
File No. 18-CR-18-1989

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

Donald F. Ryan, Crow Wing County Attorney, Kelsey Hopps, Assistant County Attorney,
Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Roy G. Spurbeck, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bryan, Pres iding Judge; Worke, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from final judgments of conviction for two counts of possession of a
controlled substance (one felo ny offense and one gross misd emeanor offense), appellant
challenges two decisions of the district court. First, appellant argues that the district court
2
erred when it determined that the arresti ng officer properly expanded the scope of the
investigation beyond the initial purpose of the traffic stop. We conclude that because the
officer had reasonable, articulable suspicion of criminal activity to expand the scope of the
traffic stop, the district court did not err by denying appellant’s motion to suppress. Second,
appellant contends that the district court was prohibited from imposing a sentence for the
gross misdemeanor conviction. Because the di strict court did not impose a sentence for
the gross misdemeanor conviction, we affirm.
FACTS
Respondent State of Minnesota charged appellant Rebecca King with the following
three offenses: (1) felony possession of me thamphetamine, later amended to a gross
misdemeanor offense, in violation of Minnesota Statutes section 152.025, subdivision 2(1)
(2018); (2) felony possession of marijuana wax, also in violation of section 152.025,
subdivision 2(1); and (3) petty misdemeanor possession of drug paraphernalia, in violation
of Minnesota Statutes 152.092(a) (2018). 1 King filed a motion to suppress evidence,
arguing that the drugs and para phernalia were obtained in vi olation of her constitutional
rights because the police officer seized the evidence after unlawfully expanding the scope

1 While appellant’s brief is unclear whether King is challenging the drug-paraphernalia
conviction, we note that that co nviction is not before us in th is appeal. The district court
entered a conviction on that count in February 2019, and King did not file an appeal within
30 days of entry of that conviction. See Minn. R. Crim. P. 28.02, subd. 4(3)(b) (providing
that, in misdemeanor cases, defendant must file appeal within 30 days of final judgment or
entry of order being appealed). This appeal therefore concerns only the two convictions
for possession of controlled substances.
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of an initial traffic stop. The district court held an evidentiary hearing on the motion and
admitted the squad car video and testimony from the arresting officer.
The evidence presented established the follo wing undisputed facts. At 12:45 a.m.
on May 13, 2018, the officer was on duty and observed a car on the highway driving
significantly under the speed limit. The officer decided to initiate a traffic stop after the
car crossed over the fog line twice. King was a passenger in the car, and the officer spoke
with the driver. Duri ng the conversation, the officer sa w what the officer believed to be
the end of a marijuana cigarette. According to the officer’s testimony, he was confident
that it was a marijuana cigarette. The vi deo of the encounter includes the following
exchange between the officer and the driver:
Officer: What’s that in the as htray there? That looks like
a marijuana cigarette.
Driver: Probably a roll-your-own.
Officer: Roll-your-own cigarette or marijuana?
Driver: Cigarette.
Officer: Can you hand that to me?
The driver handed the cigarette to the officer and the officer smelled it. The officer detected
the odor of marijuana. He then commented to the driver that he had never seen a roll-your-
own cigarette that looked like that: “Uh oh. So it smells lik e marijuana to me. In my
experience with marijuana, I’ve never seen a roll-your-own cigarette left like this
anywhere.” The officer told the driver to exit th e vehicle, searched him, and discovered
marijuana on him. The office r later removed King and searched her purse, where he
discovered methamphetamine, marijuana wax, and a methamphetamine pipe.
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The district court denied King’s motion to suppress. The district court determined
that the officer permissibly expanded the stop because he observed the marijuana cigarette
in plain sight. The district court credited the officer’s testimony that he was confident that
the item was a marijuana cigarette as soon as he saw it, and the district court noted that this
belief was corroborated “by the Court’s review of the squad video, in which [the officer]
immediately remarked that the item ‘looks lik e marijuana.’” The district court also
determined that the officer was capable of accurately differentiating between a marijuana
cigarette and a tobacco cigarette. Alternativel y, the district court also reasoned that the
driver voluntarily consented to the officer’s inspection of the cigarette because the officer
merely requested to see the cigarette and the driver freely handed it to him.
King waived her right to a jury trial and the parties stipulated to the state’s evidence
to obtain appellate review of the pretrial suppression issue. The district court found King
guilty on all three offenses, st ayed adjudication of the two drug possession offenses, and
entered a conviction for possession of drug paraphernalia, but imposed no sentence for this
conviction. Approximately five months later, King violated her proba tion. The district
court revoked the stays of adjudication and the stay of imposition, entering convictions for
both drug possession offenses. The district court discharged Ki ng from probation on
count 1 without imposing a sentence, but proceeded to impose a sentence for count 2:
THE COURT: The record reflects that at present both of these
counts, Count 1 and Count 2, are at stay of adjudication
status.
As and for disposition in this matter, I do revoke the
stays of adjudication so that Ms. King is now convicted
of both offenses.
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As to Count 1, the conviction is at a gross misdemeanor
level. Correct, counsel?
DEFENSE COUNSEL: Yes, Your Honor.
THE COURT: And Ms. King is discharged from probation as
to Count 1.
As to Count 2, this is a felony level offense. The stay
of adjudication is revoked. We do need to impose
sentence. It’s a lengthy court file.
Counsel, the guideline sentence in Count 2?
DEFENSE COUNSEL: Year and a day, Your Honor.
COUNTY ATTORNEY: Correct.
THE COURT: As to Count 2, you are committed to the custody
of the Commissioner of Corrections of this state for a
period of one year and one day. However, execution of
this sentence is stayed. You are otherwise reinstated on
probation on all of the pr eviously imposed terms and
conditions, with the add itional condition that you
cooperate with cognitive sk ills at the direction of
probation.

The amended warrant of commitment reflect s the terms of probation imposed as a
condition of the initial stay of adjudication under the heading “Sentence Details,” with the
following dates: “Start Date: 02/14/2019” and “Discharge Date: 02/14/2021.” After this,
the amended warrant of commitment includes an entry noting that King was “Convicted
and discharged from probation,” with the fo llowing date: “Effective 02/09/2021.” King
appeals.
DECISION
I. Motion to Suppress
King argues that the district court erre d when it denied her motion to suppress
evidence. Because the officer had reasonable, articulable suspicion of criminal activity
based on his observation of the marijuana cigarette, the district court correctly determined
that the officer could expand the scope of the traffic stop.
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Both the United States Constitution and the Minnesota Constitution guarantee an
individual’s right against unreasonable searches and seizures. U.S. Const. amend. IV;
Minn. Const. art. I, § 10. A traffic stop is considered an inve stigative seizure. State v.
Askerooth, 681 N.W.2d 353, 359-60 (Minn. 2004) (citing Terry v. Ohio , 392 U.S. 1
(1968)). Under the Terry framework, courts undertake a “dual inquiry,” determining first
“whether the stop was justified at its incep tion,” and second “whether the actions of the
police during the stop were r easonably related to and justif ied by the circumstances that
gave rise to the stop in the first place.” Askerooth, 681 N.W.2d at 364. Under the second
prong of this inquiry, each incremental intrus ion during a traffic stop must be based on
either “(1) the original legitim ate purpose of the stop, (2) i ndependent probable cause, or
(3) reasonableness, as defined in Terry.” Id., at 365.
An officer may expand the scope of a st op to investigate other suspected illegal
activity if the officer has reasonable, articulable suspicion of such illegal activity. State v.
Wiegand, 645 N.W.2d 125, 135 (M inn. 2002). In determ ining whether reasonable
suspicion exists, appellate courts consid er the totality of the circumstances. State v.
Flowers, 734 N.W.2d 239, 251 (Minn. 2007). For reasonable suspicion to exist, there must
be “specific, articulable facts” that allow the officer to show that he “had a particularized
and objective basis for suspecting the seized person of criminal activity.” State v. Diede,
795 N.W.2d 836, 842- 43 (Minn. 2011) (quotations omitte d). In articulating reasonable
suspicion, officers are permitted to rely on “inferences and deductions that might well elude
an untrained person.” Flowers, 734 N.W.2d at 251-52. We review the district court’s
factual findings in this case for clear erro r and its legal determinations de novo. State v.
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Gauster, 752 N.W.2d 496, 502 (Minn. 2008). We independently review the facts to
determine, as a matter of law, whether th e district court erred by not suppressing the
evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
King does not dispute that the officer’s initial stop of the car was justified, based on
the driver’s commission of a traffic violation (crossing the fog line).2 Nor does King assign
error to the district court’s factual findings. Instead, King argues that the district court
erred when it determined that, based on those facts, the officer had reasonable, articulable
suspicion to expand the scope of the traffic stop by asking the driver about the “roll-your-
own” cigarette.3 We agree with the district court that the officer had reasonable, articulable
suspicion to expand the scope of the traffic stop.
While speaking with the driver, the office r saw what appeared to be a marijuana
cigarette in plain sight. The district cour t credited the officer’s testimony that he was
confident that it was marijuana as soon as he saw it, and the district court found that the
officer could accurately differentiate between a marijuana cigarette and a tobacco cigarette.
Further, the district court credited the officer’s statement that he had never seen a “roll-

2 The supreme court has recognized that, “if an officer observes a violation of a traffic law,
however insignificant, the officer has an objective basis for stopping the vehicle.” State v.
George, 557 N.W.2d 575, 578 (Minn. 1997).
3 To the extent that statements in King’s brief can be constr ued as separately challenging
the seizure of the marijuana cigarette, we conclude that the officer was justified. In State
v. Hanson, the supreme court noted that, when officers stopped a car and saw “a hand-
rolled cigarette surrounded by leafy material” on the seat, the officers were justified in
reaching in and seizing the cigarette, “which was obviously a mariju ana cigarette.” 364
N.W.2d 786, 788-89 (Minn. 1985). Based on Hanson, the officer here had probable cause
to seize the cigarette. Given this determinati on, we need not addre ss the district court’s
determination that the driver voluntarily consented to the seizure of the cigarette.
8
your-own” tobacco cigarette th at looked like that. The officer’s observation of the
marijuana cigarette provided reasonable suspicion to inquire further and expand the scope
of the investigation to one regarding unla wful possession of cont rolled substances.
Because the officer had a constitutionally suffici ent basis to expand the traffic stop, the
district court did not err by denying King’s motion to suppress.
II. Multiple Sentences
King also argues that the district court e rred by sentencing her on both counts of
possession of a controlled substance. The stat e agrees. On our review of the record,
however, we conclude that the district co urt did not impose a sentence for the gross
misdemeanor drug possession offense charged in count 1.
The parties agree that King can only be sentenced for the felony drug possession
offense charged at count 2. Minn. Stat. § 609.035, subd. 1 (2018) (“[I]f a person’s conduct
constitutes more than one offense under the laws of this state, the person may be punished
for only one of the offenses.”); State v. Ferguson , 808 N.W.2d 586, 589 (Minn. 2012)
(explaining that Minn. Stat. § 609.035 “contemplates that a defendant will be punished for
the most serious of the offenses arising out of a single behavioral incident” (quotation
omitted)); State v. Papadakis , 643 N.W.2d 349, 357 (Minn. App. 2002) (“Possession of
two controlled substances at the same tim e and place, for personal use, is a single
behavioral incident.”); State v. Reese , 446 N.W.2d 173, 180 (Minn. App. 1989)
(recognizing that “possession of two controlled substances at the same time and place, with
no discernible criminal objective other than personal use, bars the imposition of separate
sentences”), rev. denied (Minn. Nov. 15, 1989).
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According to the sent encing transcript, after revoking the stay of adjudication for
counts 1 and 2, the district court entere d convictions for both counts: “As and for
disposition in this matter, I do revoke the stay s of adjudication so that Ms. King is now
convicted of both offenses.” The district court confirmed that count 1 was for a gross
misdemeanor level offense, discharged King from probation on count 1, imposed a
sentence only for count 2, and stayed execution of that sentence:
THE COURT: As to Count 1, the conviction is at a gross
misdemeanor level. Correct, counsel?
DEFENSE COUNSEL: Yes, Your Honor.
THE COURT: And Ms. King is discharged from probation as
to Count 1.
As to Count 2, this is a felony level offense. The stay
of adjudication is revoked. We do need to impose
sentence. . . .

. . . .

As to Count 2, you are committed to the custody of the
Commissioner of Corrections of this state for a period
of one year and one day. However, execution of this
sentence is stayed.

In addition, the amended warrant of commitment reflects the conviction for count 1,
and the discharge from probation for count 1, but includes no imposed sentence for count 1.
Based on our review, therefore, the district c ourt did not impose a se ntence for count 1.
See Spann v. State, 740 N.W.2d 570, 573-74 (Minn. 2007) (instructing appellate courts to
look to the official judgment of conviction as conclusive evidence of “whether an offense
10
has been formally adjudicated”). To the extent that the parties believe the amended
warrant of commitment contains any erroneous information, they may petition the district
court to make specific corrections.
Affirmed.