State of Minnesota, 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This opinion is nonprecedential except as provided by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
A21-1540

State of Minnesota,
Appellant,

vs.

Tomond Romell Grissom,
Respondent.

Filed June 6, 2022
Reversed
Hooten, Judge*

Ramsey County District Court
File No. 62-CR-20-5358

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

John J. Choi, Ramsey County Attorney, Thom as R. Ragatz, Assist ant County Attorney,
St. Paul, Minnesota (for appellant)

Charles F. Clippert, Clippert Law Firm, P.L.L.C., St. Paul, Minnesota (for respondent)

Considered and decided by Segal, Chie f Judge; Smith, Tracy M., Judge; and
Hooten, Judge.

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this pretrial appeal, a ppellant State of Minnesota ar gues that the district court
erred by suppressing evidence after determin ing that officers (1) unreasonably expanded
the traffic stop to search the vehicle for drug-related activity, and (2) conducted an
unreasonable pat search of respondent. Be cause the evidence, when viewed from an
objective standard, shows that the officers had probable cause to search the vehicle for
drug-related activity and pat search respondent for weapons before placing him in the squad
car during the search, we reverse.
FACTS
The relevant facts are undisputed. Office rs C.J. and N.P. we re patrolling a high-
crime area when they drove past a parked car. The officers saw two male occupants leaning
far back in their seats and attempting to hide their faces. The officers checked the license
plate of the car and, after the car drove off, eventually pulled the car over for expired tabs.
Officer C.J. approached the dr iver’s side while officer N. P. approached the passenger’s
side. The driver explained that he had ju st bought the car and did not know about the
expired tabs. He also did not have his driver’s license with him. The officers gathered the
occupants’ information and identified the driver as C.K. and the passenger as respondent
Tomond Romell Grissom.
Throughout the exchange, C.K. and Grisso m acted respectfully and responded to
the officers’ questions; the officers saw what appeared to be marijuana pieces in the center
console and cup-holder area; and the officers smelled burnt marijuana coming from inside
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the car. Officer C.J. also observed that Grissom “seemed extremely nervous” and was
visibly breathing heavy.
After the exchange, officer N.P. asked C.K. and Grissom if they had “anything else”
“besides the little bit of weed” in the car. C.K. and Grissom denied that the substance was
marijuana, but claimed it was to bacco. They also showed th e officers a rolled cigarette.
Officer N.P. went back to the squad car to look up C.K. and Grissom on his squad computer
and then returned to the vehicle to search it for more evidence of marijuana.
Before beginning their search of the vehicl e, officer C.J. frisked C.K. for weapons
and finding none, placed him in the back of the squad car. Video footage shows that officer
C.J. explained to C.K. that he was not under arrest, but wa s placed in the squad car while
they conducted their search because only two officers were present and there were two
occupants, C.K. and Grissom. Soon after C.K. was frisked, officer N.P. frisked Grissom.
While so doing, he asked Grissom if he had any weapons on him. Footage from the video
shows that Grissom replied that he did not. Officer N.P. then felt something heavy and
metal, which officer N.P. later testified app eared to be a gun, in Grissom’s front jean
pocket. Footage shows that officer N.P. asked Grissom about the item and Grissom stated
that it was his phone. Office r N.P. then opened Grissom’s front jean pocket and saw the
handle of a gun, after which Grissom confirme d that the item was a loaded gun. Officer
N.P. testified that “for my safety”, he as ked Grissom if there wa s a live round in the
chamber of the gun and he answered “yes”.
The state charged Grissom with two counts of possessing a firearm while ineligible
under Minn. Stat. § 624.713, subd. 1(2) (2020). Grissom moved to suppress the gun, and
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the district court held an omnibus hearing. Both officers testified and the district court
admitted the officers’ bodycam footage into evidence. The district court granted Grissom’s
motion to suppress evidence, determining, in part, that because the sight and smell of
marijuana are indistinguishable from legal industrial hemp,1 the officers did not have the
requisite probable cause to expand the traffic stop to search the vehicle, nor did they have
reasonable, articulable suspicion to frisk Grissom for weapons. This pretrial appeal by the
state follows.
DECISION
The United States and Minnesota Constitutions prohibit “unreasonable searches and
seizures” by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A
warrantless search is presumptively unrea sonable unless it falls within one of the
recognized exceptions to the warrant requirement. State v. Milton, 821 N.W.2d 789, 798-
99 (Minn. 2012). “The state bears the burden of establishi ng the applicability of an
exception [to the warrant requirement].” State v. Licari , 659 N.W.2d 243, 250 (Minn.
2003). Evidence obtained during an unconstitutional search or seizure must be suppressed.
See State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011).
When we review a pretrial order on a motion to suppress where the facts are not in
dispute, as here, we review the decisi on de novo and determine whether the police

1 Minnesota legalized industrial hemp in the 2015 Industrial He mp Development Act,
Minn. Stat. §§ 18K.01-.09 (2020). The Act de fines “[i]ndustrial hemp” as “the plant
Cannabis sativa L. and any part of the plan t . . . with a delta-9 tetrahydrocannabinol
concentration of not more than 0.3 percent on a dry weight basis.” Minn. Stat. § 18K.02,
subd. 3. The federal legislature later legalized industrial hemp in the 2018 Farm Bill. See
Agricultural Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490, 4828-29.
5
articulated an adequate basis for th e search or seizure at issue. See State v. Lugo , 887
N.W.2d 476, 487 (Minn. 2016 ). To determine whether the constitutional prohibition
against unreasonable searches and seizures ha s been violated, we examine the specific
police conduct at issue. See State v. Davis, 732 N.W.2d 173, 178 (Minn. 2007) (explaining
that “what constitutes an unreasonable search must be assessed based on the facts of each
particular case”). The parties agree that the initial traffic stop was lawful. The conduct at
issue is the two later expansions: first, when the officers expanded the traffic stop to search
the vehicle for additional marijuana and drugs; and second, when the officers conducted a
frisk of Grissom for weapons wh en he was asked to get out of the vehicle prior to the
search.
We apply principles derived from Terry v. Ohio, 392 U.S. 1 (1968), to the expansion
of minor traffic stops. See State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004) (applying
Terry principles to “traffic stops even when a minor law has be en violated”). We must
consider whether “each incremental intrusion” beyond the initial traffic stop was justified,
either by “the original legitimate purpose of the stop,” “independen t probable cause,” or
“reasonableness, as defined in Terry.” Id. at 365.
First Expansion

The state argues that the officers had a reasonable, articulable suspicion that a search
of the vehicle would reveal a criminal amount of marijuana.
As an initial matter, we note that under th e automobile exception to the warrant
requirement, the officers needed probable cause, not reasonable suspicion, to search C.K.’s
vehicle. See State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016). Under th e automobile
6
exception, the warrantless search of a vehicle in cludes any “closed containers in that car,
if there is probable cause to believe the search will result in a discovery of evidence or
contraband.” Id. (quotation omitted). And, while “the bar for reasonable suspicion is low,”
see State v Taylor , 965 N.W.2d 747, 752, 758 (Minn. 2021) (stating that reasonable
suspicion requires “more than a mere ‘hunch’ but ‘is considerably less than proof of
wrongdoing by a preponderance of the evidence, and obviously less than is necessary for
probable cause’” (quoting Navarette v. California , 572 U.S. 393, 397 (2014)), probable
cause requires more.
“Probable cause to search an automobile exists where the facts and circumstances
within the officer’s knowledge and of which he has reasonably trustworthy information are
sufficient in themselves to warrant a reasonable man . . . in the belief that the automobile
contains articles the officer is entitled to seize.” State v. Gallagher, 275 N.W.2d 803, 806
(Minn. 1979). When reviewing whether police had probable cause to conduct a search, we
must look to the totality of the circumstances. State v. Johnson , 689 N.W.2d 247, 251
(Minn. App. 2004), rev. denied (Minn. Jan. 20, 2005). “[T]he totality of the circumstances
includes reasonable inferences that police officers draw from facts, based on their training
and experience, because police officers may interpret circumstances differently than
untrained persons.” Lester, 874 N.W.2d at 771.
Applying those principles, we conclude that the expansion of the stop to include a
search of the vehicle was constitutional because the officers had probable cause to believe
that Grissom was involved in drug-related criminal activity. Before the initial traffic stop,
the officers were patrolling the area “a little h eavier” because of “calls of shootings and
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assaults.” When the officers drove by C.K.’s parked car, C.K. and Grissom “began to lean
far back in their seats.” The officers found that “very su spicious” and that “[i]t appeared
they were maybe trying to hide their faces from us, or didn’t want to be seen inside of that
vehicle.” When the officers approached the car, officer C.J. observed that Grissom
“seemed extremely nervous” and that “[Gri ssom] was breathing heavy” with his chest
“going in and out.” Based on their training a nd experience as officers, the officers also
saw what appeared to be mar ijuana in the cup-holder area of the car’s console and could
smell burnt marijuana coming from inside th e car. And, when the officers questioned
Grissom and the driver about th e presence of drugs in the ca r, they responded that it was
tobacco that the officers smelled.
As a rule, the sight, and smell of marijuana are enough to justify the search of a car.
See State v. Thiel, 846 N.W.2d 605, 609 (Minn. App. 2014) (holding that search of vehicle
was justified after state trooper “detected a ‘strong’ and ‘overwhelming’ odor of marijuana
emanating from the vehicle”), rev. denied (Minn. Aug. 5, 2014). Grissom argues that the
rule no longer applies because the Minnesota legislature legalized industrial hemp and the
sight and smell of hemp are indistinguishable from that of marijuana.
But as the state correctly asserts, just as the district court did not have the authority
to overrule precedential opinions, see State v. Peter , 825 N.W.2d 126, 129 (Minn. App.
2012), rev. denied (Minn. Feb. 27, 2013), we are also bound by precedent, State v. M.L.A.,
785 N.W.2d 763, 767 (Minn. App. 2010) (explaining that this court “is bound by supreme
court precedent and the published opi nions of the court of appeals”), rev. denied (Minn.
Sept. 21, 2010). And until cha nged, it remains that the sight and smell of marijuana can
8
justify the search of a car. We also note that Grissom did not claim that the substance was
hemp. He claimed that it was tobacco. So while the sight and smell of hemp may be
indistinguishable from that of marijuana, given Grissom’s own assertion about the
substance and the other facts known to the officers and the rational inferences from them,
the officers’ suspicion that the substance was marijuana is objectively supported. Lugo,
887 N.W.2d at 486.
Grissom further argues that because th e officers only saw a small amount of
marijuana and because Minnesota has decr iminalized possessing a small amount of
marijuana, the smell of burnt marijuana and sight of a non- criminal amount of marijuana
does not meet the probable-cause standard.
But the question here is not whether the amount of marijuana the officers observed
constitutes a crime. Instead, it is whether, given the totality of the circumstances, the
officers had the requisite probable cause to believe that a search of the car would reveal a
criminal amount of marijuana. See, e.g., State v. Johnson, 444 N.W.2d 8 24, 826 (Minn.
1989) (stating that “innocent activity might justify the suspicion of criminal activity”). We
also reiterate that under Minnesota law, as it stands, the “lawful discovery of drugs or other
contraband in a motor vehicle gives the poli ce probable cause to believe that a further
search of the vehicle might result in the disc overy of more drugs or other contraband.”
State v. Bigelow, 451 N.W.2d 311, 312-13 (Minn. 1990) (citations omitted).
Based on the totality of the circumstances, the facts available to the officers, and the
reasonable inferences drawn from those facts, we conclude that the first expansion of the
stop to include a search of the car was justified.
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Second Expansion

The state asserts that the officers’ second expansion was lawful because the officers
here had reasonable, articulable suspicion to search the car, the officers reasonably asked
Grissom to get out of the car and search him for weapons prior to placing him in the squad
car during the search.
The frisk of a suspect for weapons after being ordered out of a vehicle is an
incremental intrusion during a traffic stop. In determining whether su ch an intrusion is
constitutionally permitted, a district court must consider whether the requirements set forth
in Terry are satisfied. Askerooth, 681 N.W.2d at 365; see Pennsylvania v. Mimms , 434
U.S. 106, 111-12, (1977) (holding that Terry test controls when determining validity of a
frisk for weapons after person has b een ordered out of vehicle). “ Terry holds that 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 the
suspect might be armed and dangerous.” State v. Dickerson, 481 N.W.2d 840, 843 (Minn.
1992), aff’d, 508 U.S. 366, 379 (1993).
The reasonableness test “depends upon th e totality of the ci rcumstances,” which
requires looking closely at “the facts availabl e to the officer” as well as “any reasonable
inferences to be drawn from them.” Id. at 753 (quotations omitted). And in making that
assessment, the district court is required to judge the facts against an objective standard of
whether the facts available to the officer at the time of the search or seizure would warrant
an officer using reasonable caution to conduct such search or seizure. Terry, 392 U.S. at
21-22; State v. Sargent, 968 N.W.2d 32, 38 (Minn. 2021).
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The reasonable-suspicion standard is met when an officer observes conduct that
leads the officer to “reasonably conclude in li ght of his or her experience that criminal
activity may be afoot.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation
omitted). Trained law enforcement officers may make inferences and deductions that
would be beyond the competence of an untrained person. State v. Richardson, 622 N.W.2d
823, 825 (Minn. 2001). We consider “the officer’s expe rience, general knowledge, and
observations; background information, includi ng the nature of the offense suspected and
the time and location of the seizure; and anything else that is relevant.” State v. Klamar,
823 N.W.2d 687, 691 (Minn. App. 2012). Ultimately, we must determine whether the
combination of “objective, particularized facts and any resulting rational inferences
warranted a reasonable, articulable suspicion that justified expansion of the stop.” Taylor,
965 N.W.2d at 753.
The purpose of a frisk for weapons is to allow police officers t o p u r s u e t h e i r
investigation without fear of violence. Adams v. Williams, 407 U.S. 143, 146 (1972). “The
officer need not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent [person] in the circumstan ces would be warranted in the belief that
[their] safety or that of others was in danger.” Terry, 392 U.S. at 27. Confinement in the
back of a squad car for a minor traffic violation “may be justified if it is reasonably related
to the initial lawful basis for the stop, reasonably related to the investigation of an offense
lawfully discovered or suspected during the stop, or a threat to officer safety.” Askerooth,
681 N.W.2d at 369-70. See also State v. Varnado , 582 N.W.2d 886, 891 (Minn. 1998)
(declaring that “officer safety is a paramount interest and that when an officer has a valid
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reasonable basis for placing a lawfully stopped citizen in a squad car, a frisk will often be
appropriate without additional individual articulable suspicion”).
As set forth above, the first prong of the Terry test, whether the officers had a
reasonable, articulable suspic ion that Grissom and C.K. mi ght be engaged in criminal
activity, was satisfied. Because what appeared to be marijuana was located in the center
console of the vehicle in plain view and could be easily accessed by either or both the driver
and Grissom, the officers had a reasonable, ar ticulable suspicion that Grissom may have
additional marijuana or drugs in the car. Ortega, 770 N.W.2d at 150-51 (holding that
contraband which has been in plain view in a motor vehicle supports a rational inference
that the vehicle occupants were aware of the contraband and had the ability and intent to
exercise dominion and control over the contraband).
Under the second prong of the Terry test, the remaining question for our
consideration is whether the officers “had an objectively reasonable concern for officer
safety or suspicion of danger.” United States v. Smith, 645 F.3d 998, 1003 (8th Cir. 2011).
“The legality of a pat search depends on an objective examin ation of the totality of the
circumstances.” State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014). “[A] pat search may
still be lawful even if the officer conducted it based on departmental policy rather than the
officer’s subjective assessment of the circumstances.” Id. at 230. “[T]he actual, subjective
beliefs of the officer are not the fo cus in evaluating reasonableness.” Id. at 231 (quoting
State v. Koppi, 798 N.W.2d 358, 363 (Minn. 2011)).
In this case, the officers had a reasonabl e, articulable suspicion that Grissom and
C.K. had additional marijuana or drugs in th e car based upon the offi cers’ plain view of
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purported marijuana in the console of the ca r, the smell of what they believed to be
marijuana, and the evasiveness and untruthfulness of Grissom and C.K. in response to the
officers’ stop and questioning. Once the officers made the decision to search the car in this
high-crime area for additional drugs, they removed both C.K. and Grissom from the car
with the intention that they would sit in or stand by the squad car while the officers
completed their search. Becaus e the officers had a reasonable, articulable suspicion that
Grissom and C.K. were either committing a crime or about to commit a crime, the officers
were warranted in conducting a pat search for weapons prior to beginning their search of
the vehicle.
Reversed.