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This opinion is nonprecedential except as provided by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
A21-1572

State of Minnesota,
Appellant,

vs.

Renaldo Valentino Sept,
Respondent.

Filed May 16, 2022
Affirmed
Cleary, Judge*
Dissenting, Ross, Judge

Ramsey County District Court
File No. 62-CR-20-5607

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

John Choi, Ramsey County At torney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for appellant)

Drake D. Metzger, Jasmin Quiggle, Metzger Law Firm, LLC, Minneapolis, Minnesota (for
respondent)

Considered and decided by Ross, Presid ing Judge; Cochran, Judge; and Cleary,
Judge.

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

2
NONPRECEDENTIAL OPINION
CLEARY, Judge
The state appeals the district court’s pretrial order granting respondent’s motion to
suppress evidence seized during a vehicle search, arguing that the district court erred
because investigators had prob able cause to search the vehicle based on evidence
discovered on respondent’s person, following a lawful search incident to arrest, combined
with respondent’s diminished expectation of privacy as a parolee. We affirm.
FACTS
Appellant State of Minnesota charged respondent Renaldo Valentino Sept with two
counts of ineligible person in possession of a firearm or ammunition in violation of Minn.
Stat. § 624.713, subds. 1(2), 2(b) (2020), and fifth-degree drug possession in violation of
Minn. Stat. § 152.025, subd. 2(1) (2020). The charges are based on the evidence seized by
investigators while executing a warrant for Sept ’s arrest for violating the terms of his
parole.
On August 5, 2020, inves tigators were conducting surv eillance of an apartment
where they believed Sept was staying. Inve stigator Wilmes obser ved Sept entering the
parking lot of the apartment complex in a red car. Sept then parked the car and walked into
one of the apartments carrying a backpack. Some time passed before Sept exited the
apartment with the bac kpack, walked back to the parked car, got inside, and started the
engine. Investigators then surrounded Sept and ordered him to exit the car. Sept stepped
out of the car and investigators handcuffed and searched him.

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Search incident to arrest
Investigator Bliven searched Sept’s person and found tw o sets of keys,1 2.2 grams
of marijuana, and $1,400. Sept was then placed in the back of a pa trol car. The seized
items “were placed into an evid ence bag,” and investigators re turned the keys to Sept’s
then-girlfriend, S.K., who was inside the apartment Sept was seen entering just before his
arrest.
Vehicle search
At some point after Sept was taken into custody, Investigator Pankratz noticed that
Sept’s car was still running. Investigator Pankratz then “opened up the car door to shut the
vehicle off.”
Investigator Pankratz “watched [Sept] being taken into custody” but he did not
participate in the search of Sept’s person, nor did he have knowledge of what was found
during that search when he opened the car door. “When [Investigator Pankratz] opened
the door to actually go inside” the car, he saw a pistol magazine sticking out of a backpack
pocket located on the front passenger seat. Investigator Pankratz “stopped everything [he]
was doing, backed out” of the car, and told Investigator Wilmes what he saw. Investigator
Wilmes was not informed of “a possible handgun magazine inside the vehicle” until after
the seized items were placed in the evidence bag.

1 The keys found on Sept’s pe rson were “fob style” keys, a nd not traditional metal keys
consisting of a head and blade. S.K. testified that the car “was a push to start vehicle”
operated by a fob.
4
According to Investigator Pankratz, the pistol magazine was visible from outside of
the car through either the wind shield or the driver’s side window. However, none of the
investigators saw the pistol magazine until after Investigator Pankratz opened the car door.
Warrant to search the vehicle
S.K., now in possession of the keys, went out to the parking lot to try and speak with
Sept before he was taken away. S.K. testified that while she was speaking to Sept “through
the window” of the patrol car an investigator asked her for the keys back so he could “go
in[side] the vehicle.” S.K. told investigators that they would need to show her a warrant to
go inside the car. Investigator Wilmes then applied for a search warrant, based on the
information reported earlier from Investigator Pankratz. Once investigators produced the
search warrant, S.K. returned the keys. The subsequent search of the car uncovered a pistol,
ammunition, and 17 7.6 grams of marijuana. After th e search of the car was complete,
investigators “left the car there but took the keys” with them. S.K. “had to go to the jail
and pick the keys back up after [investigators] left.”
Sept moved the district court to suppress th e evidence found in his car. The district
court granted Sept’s motion. This appeal followed.
DECISION
The state argues that the district court erred by granting Sept’s suppression motion
because the investigators had probable cause to search his car. “When reviewing pretrial
orders on motions to suppre ss evidence, we may independe ntly review the facts and
determine, as a matter of law, whether the di strict court erred in suppressing . . . the
evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We review the district court’s
5
factual findings for clear error and its legal determinations de novo. State v. Ortega, 770
N.W.2d 145, 149 (Minn. 2009). As an initial matter, we address whether the suppression
of the evidence has a critical impact on the state’s case.
Critical impact
When the state challenges a pretrial order, it must first show that “the district court’s
alleged error, unless reversed, will have a critic al impact on the outcome of the trial.”
Minn. R. Crim. P. 28.04, subd. 2(2)(b). This court will reverse only if the state can “clearly
and unequivocally show both that the [district] court’s order will have a critical impact on
the state’s ability to prosecut e the defendant successfully a nd that the order constituted
error.” State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995) (quotation omitted). “We view
critical impact as a threshold issue and will not review a pretrial order absent such a
showing.” State v. Osorio, 891 N.W.2d 620, 627 (Minn. 2017) (quotation omitted). If the
“lack of the suppressed evidence significan tly reduces the likelih ood of a successful
prosecution,” the district court’s order has critically impacted the state’s case. State v. Kim,
398 N.W.2d 544, 551 (Minn. 1987).
The state argues that withou t the evidence seized from Sept’s car, there is no
likelihood of a successful prosecution. Each of the alleged charges against Sept arise from
the search of his car and evidence obtained during that search. Because no further evidence
exists to support the charges alleged against Sept, the suppression of the evidence seized
from Sept’s car has a critical impact on the state’s ability to prosecute. Next, we consider
whether a search occurred when investigators opened the car door to turn off the engine.

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Search and seizure
The United States Constitution and the Minnesota Constitution protect against
“unreasonable searches and seizures.” 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.
State v. Diede , 795 N.W.2d 836, 84 2 (Minn. 2011). To determine whether the
constitutional prohibition against unreasonable searches and seizures has been violated, we
examine the specific police conduct at issue. State v. Davis, 732 N.W.2d 173, 178 (Minn.
2007).
The district court determined that “[r]egardless of Investigator Pankratz’s innocent
intent to turn off the car e ngine, the act of opening the door and moving into the car
constituted a search.” The district court co ncluded that, because Sept had a reasonable
expectation of privacy in his ca r’s interior, the “entry into . . . Sept’s private car, even to
merely turn off the engine, constituted a s earch[,]” requiring either “a warrant or an
exception to the warrant requirement.”
We agree with the district court, and the state does not dispute that the investigator’s
opening of the car door was a search. Because investigators did not have a search warrant
for Sept’s car before entering the car, absent an exception to the warrant requirement, any
evidence found inside the car must be suppressed. See Diede, 795 N.W.2d at 842. We
7
now consider whether there was a valid exception to the warrant requirement that justified
investigators’ entry into the car.
The automobile exception
The state argues that investigators had probable cause to justify entry into Sept’s car
under the automobile exception based on the marijuana and large amount of cash found on
Sept’s person, combined with his status as a parolee. The district court determined that the
automobile exception did not apply because “investigators lacked probable cause to
search” prior to the entry into Sept’s car.
In reviewing whether there existed a va lid exception to the warrant requirement,
appellate courts review the district court’s factual findings for clear error and its legal
conclusions de novo. State v. Stavish, 868 N.W.2d 670, 677 (Minn. 2015).
“When probable cause exists to believe that a vehicle contains contraband, the
Fourth Amendment permits th e police to search the vehicle without a warrant.” State v.
Flowers, 734 N.W.2d 239, 248 (Mi nn. 2007). Under the auto mobile exception, the
warrantless search of a vehicle includes any “closed containers in that car, if there is
probable cause to believe the search will result in a discovery of evidence or contraband.”
State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016) (quotation omitted).
“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 polic e had probable cause to conduct a search,
8
this court must look to the to tality 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 po lice officers may interpret circumstances
differently than untrained persons.” Lester, 874 N.W.2d at 771.
Totality of the circumstances
Investigators were executing an arrest warra nt for Sept’s violation of the terms of
his parole. Investigators were surveilling an apartment Sept was thought to be residing at
when they saw Sept driv e into the apartment’s parking lot, park his car, and walk into an
apartment. Once Sept got back into his car, investigators co nverged on the now running,
parked car, and placed Sept under arrest. Du ring the lawful search of Sept’s person,
incident to his arrest, investigators found 2.2 grams of marijuana and $1,400.
1. Marijuana
The state argues that, because the holding in State v. Thiel justified the search of a
car after a state trooper “detected a ‘stron g’ and ‘overwhelming’ odor of marijuana
emanating from the vehicle[,]” investigators’ discovery of marijuana on Sept’s person also
justifies such a search. 846 N.W.2d 605, 609 (Minn. App. 2014), rev. denied (Minn. Aug.
5, 2014). However, the facts in Thiel are distinguishable from the facts here. In Thiel, the
driver “produced from inside his vehicle a pipe containing partially burnt marijuana, which
gave the trooper probable cause to search the vehicle for more marijuana.” Id. at 611. This
court concluded that because the “trooper reasonably suspected that the vehicle contained
9
a larger amount of marijuana based on the strong and overwhelming odor emanating from
the vehicle,” the trooper had probable cause to search the vehicle’s interior. Id.
Here, investigators did not discover the marijuana while Sept was inside the car; it
was discovered on Sept’s person after he was ordered to get out of the car by investigators.
Because investigators did not have a search warrant for Sept’s car, any search of
Sept’s car would require probable cause supported by reasonable and articulable suspicion.
See Gallagher, 275 N.W.2d at 806. The district court determined that investigators did not
articulate “a basis to search” Sept’s car, and that “the totality of the circumstances [did] not
support probable cause to search in this case.” We next consider whether the marijuana
and the large amount of cash discovered on Sept’s person, together, justified the
warrantless search of Sept’s car.
2. Large amount of cash
The state argues that the large amount of cash found on Sept’s person, viewed in
conjunction with the marijuana, gave investig ators probable cause to search the car. See
Maryland v. Pringle, 540 U.S. 366, 372 n. 2, 124 S. Ct. 795, 800 n. 2 (2003) (stating that
a court’s consideration of mone y in isolation is mistaken, bu t is properly considered in a
probable-cause determination “as a factor in the totality of the circumstances”). The
district court determined that the large am ount of cash and the marijuana did not give
investigators “probable cause to believe that a search of . . . Sept’s car would reveal
contraband.” The district court concluded that “the totality of the circumstances [did] not
support probable cause to search [the car] in this case.”
10
Given the amount of marijuana investig ators discovered on Sept’s person—2.2
grams—a large amount of cash would not nece ssarily suggest Sept was trafficking or
selling marijuana. See Minn. Stat. §§152.01, subd. 16 (2020) (providing small amount of
marijuana is defined by statute to mean “4 2.5 grams or less”); .027, subd. 4(a) (2020)
(providing possession of “small amount of marijuana” is a petty misdemeanor). According
to Investigator Bliven’s testimony, 2.2 gr ams of marijuana is for “personal use.”
Investigator Wilmes testified that he “would not have been arresti ng [Sept] just for the
marijuana and the cash.” This testimony suggests that inves tigators’ assessment of the
totality of the circumstances did not give them probable cause to further search the car for
additional contraband.
Here, the reasonable inferences investigators had drawn from the marijuana and the
large amount of cash found on Sept’s person, “based on their training and experience,” did
not give investigators probable cause to believe that a search of the car would result in the
discovery of contraband. Lester, 874 N.W.2d at 771. To es tablish probable cause there
must be “more than mere susp icion but less than th e evidence necessary for conviction.”
State v. Onyelobi , 879 N.W.2d 334, 343 (Minn. 2016) (quotation omitted). The small
amount of “personal use” mar ijuana and the $1,400 on Sept’s person does not show that
investigators had any suspicions that what was discovered on Sept’s person would lead to
the discovery of further contraband inside of the car. We next consider whether Sept’s
status as a parolee, combined with the marijuana and the large amount of cash, justified the
warrantless search of Sept’s car.

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3. Parolee status
The district court determined that Sept ’s status as a parolee diminished his
expectation of privacy, but not to the extent that justified the warrantless search of his car.
The state contends that, as a parolee, Sept has a “substantially dimi nished expectation of
privacy,” and that, combined with the evidence found on Sept ’s person, established the
probable cause necessary to search the car. See Samson v. California, 547 U.S. 843, 850,
857, 126 S. Ct. 2193, 2193, 2 198, 2202 (2006) (upholding th e suspicionless search of a
parolee, stating that “parolees have fewer expectations of privacy than probationers” under
California law).
This court has previously declined to follow the holding in Samson which allowed
for police to conduct a suspicionless search of a parolee’s home. See State v. Heaton, 812
N.W.2d 904, 908 (Minn. App. 2012) (sta ting that California law relied on in Samson
regarding a parolee’s written agreement to searches without cause was distinguished from
the applicable Minnesota statute that did not permit suspicionless searches), rev. denied
(Minn. July 17, 2012). In Heaton, this court determined that a parolee’s expectation of
privacy is diminished. Id. However, Heaton is distinguishable from this case because in
Heaton the parolee had consented to the search of his home as one of the terms of his
parole. Id. at 906. And despite the diminished ex pectation of privacy, the state is not
arguing that a standard less than probable cause applies. In Heaton, this court concluded
that only a reasonable suspici on was necessary to conduct a suspicionless search of a
parolee’s home. Id. at 911.
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The terms of Sept’s parole are not included in the record. Therefore, it is unclear
whether Sept consented to suspicionless searches of his home or car as terms of his parole.
Absent this consent, Sept’s status as a paro lee does not justify the suspicionless search of
his car, even after the totality of the circumstances are considered.
Given the totality of the circumstances, the need to enter Sept’s car to turn off the
engine did not outweigh Sept’s reasonable expectation of priv acy in the car’s interior.
Therefore, the investigator’s warrantless search of the car did not satisfy the probable-cause
requirement under the automobile exception.
The plain-view exception
On appeal, the state does not rely, as the dissent does, on the alternative theory that
the warrantless search of the car was justified under the plain-view exception to the warrant
requirement. See State v. Robinette, 964 N.W.2d 143, 147 n. 6 (Minn. 2021) (stating that
“a party forfeits appellate review by failing to brief or argue an issue on appeal, even if
raised in an earlier stage of the proceedings”). Therefore, we decline to address the merits
of the plain-view exception as it applies to the facts here.
Affirmed.

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ROSS, Judge (dissenting)
I respectfully dissent from the majority’s decision to affirm the district court’s
suppression of evidence. It is clear to me that the district court errantly refused to apply
the plain-view exception and that it did so in a manner that deems unconstitutional a
routine, safe, reasonable, and responsible po lice practice. And it replaces it with an
unrealistic and dangerous alternative. Because the parties sufficiently discussed the issue
for our review on appeal, we ought to address it and correct the district court’s error.
The majority does not address the plain- view exception, but I believe that the
question of whether the exception applies is su fficiently before us. The district court
thoroughly analyzed the issue and concluded that the exception does not apply because,
according to the district court, Investigator Pankratz entered Sept’s car unlawfully before
he saw the contraband in plain view. The state loosely challenges that holding on appeal,
contending, “A fundamental flaw in the distri ct court’s suppression order is its focus on
the investigator’s intent when he entered Mr. Sept’s car to turn off the engine, and saw the
magazine in plain view.” Although the st ate does not further develop the plain-view
argument, the facts and law are clear, and, most important, the respondent recognized that
the state has raised the issue and he therefore briefed it fully. He argues against reversing
on plain-view grounds because the investigator had no authority “to take immediate action
to secure the vehicle or even turn it off” and that this is “especially true because [Sept’s
companion] was readily available to take possession of the vehicle to secure it.” Because
the issue was decided below, referenced by the appellant, and briefed fully by the
respondent, there is no reason for us to overlook the error and good reasons to correct it.

D-2
The district court’s undisputed factual findings should compel us to reverse its legal
conclusion regarding the plain-view exception. Police executed a felony stop to confront
Renaldo Sept as he sat in an apartment parki ng lot in a car registered only in his name.
They removed him from the car at gunpoint and handcuffed him to enforce a warrant for
his arrest. “Investigator Pankr atz opened the driver’s side doo r of Mr. Sept’s car to turn
off the car engine.” The district court clarifie d that the investigator’s “initial entry . . . of
Mr. Sept’s car was not to search it . . . but to turn off the car’s engine.” The district court
heard testimony that “Investigator Pankratz [re ported] that he observed in plain view a
handgun magazine sticking out of the pocket of the gray backpack th at was sitting in the
front passenger seat.” And it then found, “As he opened the driver’s side door and reached
in, Investigator Pankratz saw . . . a black pistol magazine sticking out of the pocket of the
gray backpack on the front passenger seat.” For the reasons I outline below, this everyday
law-enforcement activity (safeguarding an arrestee’s car by turning it off before locking it
and driving the arrestee to jail) is constitu tionally reasonable, s upporting a plain-view
justification to seize the eviden ce inside the car with or w ithout a warrant. The district
court did not think so.
The district court erroneously failed to apply the plain-view exception. The
plain-view exception allows a police officer to seize an object without a warrant if the
officer is lawfully in a position from whic h he can view the object, the object’s
incriminating character is immediately apparent, and the officer has a lawful right to access
the object. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). The district court reasoned
that the plain-view exception does not apply because the investigator first saw the gun

D-3
magazine protruding from Sept’s backpack on the front seat only after the investigator
opened the car door to turn o ff Sept’s engine. And according to the district court, the
Fourth Amendment prohibited the investigator opening the door. This is wrong.
The district court is wrong because po lice have a commonsense duty to take
reasonable steps to safeguard the property that suspects possess at the time of their arrest.
As the supreme court explained in the somewhat analogous situation of an impoundment,
“The police could be held respon sible if valuables in a car under its control were stolen.”
City of St. Paul v. Myles, 218 N.W.2d 697, 701 (Minn. 1974); cf. Harris v. United States, 390 U.S. 234, 235-36 (1968) (holding that the plain-view discovery of evidence inside
arrested suspect’s impounded car was constitutional because “the officer opened the door
in order to secure the window and door”). Inasmuch as police act reasonably by taking
steps to protect items inside a car that had been possessed by an arrestee, they of course act
reasonably by taking simple steps to protect the car itself. This is particularly so where, as
here, it was lawful police activity that rendered the car unoccupied with its engine running
and especially vulnerable to theft.
The district court gave two clearly flawed reasons to support its conclusion that the
investigator lacked the authority to open Sept’s car to turn off the engine. The district
court’s first reason was that Se pt’s running car was sitting in the parking lot of a private
apartment building rather than on a public road. But the officer’s duty to protect an
arrestee’s possessions applies even on a private lot, where failing to secure “a vehicle that
was unlocked and running” on the lot creates a circumstance in which, “[i]n only a matter
of seconds, an individual could have taken the car.” Smith v. Thornburg, 136 F.3d 1070,

D-4
1075 (6th Cir. 1998) (appl ying a community caretaking exception to the Fourth
Amendment’s warrant requirement on privat e property). The investigator had no
constitutional duty to forgo a simple and reas onable act to safeguard Sept’s car simply
because the car sat on a privately owned parking lot.
The district court’s second reason for conc luding that the inve stigator lacked the
authority to open Sept’s car to turn off the engine is not only legally flawed, it is also highly
dangerous. The district court reasoned that the Constitution prohibits the investigator from
shutting off Sept’s car because the investigator failed to instead ask Sept’s companion (who
was not in Sept’s car during the arrest and not a registered owner) “to step out of her ground
level apartment . . . and shut off the car.” But whether police could have summoned Sept’s
companion from her apartment and invited her to enter the car to turn off Sept’s engine is
irrelevant to the limited constitutional issue, which is only whether th e investigator acted
reasonably by opening the car door to turn off the engine. As the supreme court put it,
“While the protection of the contents of the car . . . might in the abstract have been
accomplished by less intrusive means, we cann ot say the standard procedure used was
unreasonable.” Myles, 218 N.W.2d at 700. It is constitutionally inconsequential that some
other option might have been available to police.
Most alarming, the district court’s su ggestion that the investigators were
constitutionally required to ask Sept’s companion to turn off the engine rather than turn it
off themselves disregards the grave hazard that this requirement presents. The
investigators knew of Sept’s dangerous prop ensity and therefore executed a high-risk,
felony stop to order him from his car at gunpoi nt and arrest him on the spot. Ever since

D-5
the Supreme Court’s opinion in Terry v. Ohio , 392 U.S. 1, 27 (1968), courts have
consistently recognized that the Fourth Amendment’s reasonableness test gives ample
room for officers to make their own safety-c onscious tactical decisions without judicial
second-guessing. I am sure that no reasonab ly trained police officer would end a felony
stop the way the district court suggests—b y inviting a dangerous arrestee’s unvetted
companion to reach inside th e arrestee’s unsearched car where any weapon left behind
might be easily accessed for use against the officers or others. And in this case, in fact a
loaded handgun was sitting on the car seat within easy reach. The district court might be
correct that entering Sept’s car to turn off the engine “could have been accomplished by a
means other than an officer entering the car,” but the mean s the district court suggests is,
in my opinion, profoundly dangerous and certainly not constitutionally required.
In sum, the Constitution di d not prohibit the investig ators from turning off the
engine of Sept’s unoccupied car or require them to usher Sept’s companion from her
apartment to do so for them. We should reverse the district court’s suppression order.