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This opinion is nonprecedential except as provided by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
A22-1029

State of Minnesota,
Respondent,

vs.

Luis A.M. Rodriguez,
Appellant.

Filed May 1, 2023
Reversed and remanded
Halbrooks, Judge*

Benton County District Court
File No. 05-CR-21-1246

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Philip K. Miller, Benton County Attorney, Foley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Eva F. Wailes , Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Gaïtas, Presiding Judge; Wheelock, 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NONPRECEDENTIAL OPINION
HALBROOKS, Judge
Appellant Luis A.M. Rodriguez challenges th e district court’s denial of his pretrial
motion to suppress evidence recovered during a stop of his vehicle. In the alternative, he
challenges the district court’s entry of convictions of both first- and fifth-degree controlled-
substance possession because the offenses arose out of the same set of circumstances.
Because we conclude that law enforcement lacked reasonable, articulable suspicion to
justify their expansion of the traffic stop into a drug investigation, we reverse the district
court’s denial of the motion to suppress and remand for a new trial. Because we reverse
and remand, we need not address Rodriguez’s erroneous-entry-of-conviction argument.
FACTS
At 1:36 a.m. on July 18, 2021, emergency dispatchers notified officers of a wrong-
way driver. A 911 caller reported to law enforcement that the driver was seen traveling
westbound in the eastbound lane, making U-turns, and driving erratically. Deputy
Berthiaume followed the car, which was traveling at a slow speed, and saw it cross both
the fog and the lane-dividing lines. Deputy Berthiaume pulled the car over; Deputy Goerger
arrived shortly after at around 1:50 a.m. Deputy Berthiaume approached the car on the
driver’s side and spoke to the driver while Deputy Goerger approached on the passenger
side.
Deputy Berthiaume testified that he identified the driver as appellant Luis A.M.
Rodriguez. Rodriguez gave Deputy Berthiaume his passport and visa, which showed that
Rodriguez resided in Mexico. Rodriguez reported to Deputy Berthiaume that he was
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looking for a motel. When the deputy told Rodriguez that he had pulled him over for being
“all over the road,” Rodriguez explained that he was looking for a notebook that was in the
glove box. He told the deputy that an address was in that notebook. As the deputy spoke to
Rodriguez, he observed Rodriguez looking at area motels on his phone. He also noticed
that Rodriguez smelled strongly of cologne.
A third law enforcement officer, Trooper Carlson, arrived at the scene around five
minutes into the stop. Trooper Carlson asked Deputy Berthiaume whether he believed that
Rodriguez was sober, and Deputy Berthiaume responded, “Seems like it.” By this point,
Deputy Goerger had reached the same conclusion about Rodriguez’s lack of impairment.
Deputy Berthiaume asked Trooper Carlson whether he “had a puppy around,”
meaning a drug-sniffing dog. When Trooper Carlson responded that he did not, Deputy
Berthiaume called Officer Bosma, to “see if [he was] around.” Officer Bosma responded
that he was on his way. While waiting for Officer Bosma and the canine officer to arrive,
Trooper Carlson asked Rodriguez to step out of the vehicle. The officers gave Rodriguez a
preliminary breath test (PBT) and determined that he had an alcohol concentration of 0.0.
Officers then asked Rodriguez to open his trunk and Rodriguez did so. In the trunk
officers saw two bags, which officers believed was an insufficient amount for a person
traveling on business for three weeks, which Rodriguez had stated he was. Deputy
Berthiaume also saw damage to the back of the car and observed that the car was using a
spare tire. This led him to suspect that Rodriguez was hiding drugs. The officers kept
Rodriguez on the side of the road until the canine officer and Officer Bosma came, about
thirty minutes into the traffic stop. After sniffing the perimeter and the inside of the car,
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the dog alerted to two containers in the passenger seat. The officers opened the containers
and found about 123 grams of cocaine, under one gram of methamphetamine, and
approximately $8,900 in cash and then arrested Rodriguez.
The state charged Rodriguez with first-degree controlled- substance sale and first-
degree controlled-substance possession, later amending the complaint to add a charge of
fifth-degree controlled -substance possession. Before the state amended its complaint,
Rodriguez moved to suppress the evidence obtained from the stop, arguing that the officers
unlawfully expanded the scope of the stop without having reasonable suspicion to do so.
The district court denied the motion.
A jury found Rodriguez guilty of both first - and fifth-degree controlled-substance
possession but acquitted him on the controlle d-substance-sale charge. The district court
convicted Rodriguez of both possession offenses and sentenced him concurrently to 65
months’ imprisonment on the first-degree conviction and 13 months’ imprisonment on the
fifth-degree conviction.
This appeal follows.
DECISION
Rodriguez challenges the district court’s denial of his motion to suppress the
evidence seized during the stop of his car . He concedes that the initial stop based on his
erratic driving behavior was warranted, arguing instead that the officers lacked the
reasonable, articulable suspicion of drug-related activity necessary to expand the scope of
the stop to a drug investigation. When reviewing a district court’s pretrial order on a motion
to suppress evidence, we review the district court’s factual findings under a clearly
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erroneous standard and the district court’s legal determinations de novo. State v. Gauster,
752 N.W.2d 496, 502 (Minn. 2008) (quotation omitted). Because the district court made
limited factual findings concerning the expansion of the stop, we base our review o n the
suppression hearing transcripts and the body-camera footage from the stop.
Both the United States and Minnesota Constitutions protect against unreasonable
searches and seizures, and courts presume that warrantless searches and seizures are
unreasonable. U.S. Const. amend. IV; Minn. Const. art. I, § 10; State v. Lugo, 887 N.W.2d
476, 486 (Minn. 2016). A limited exception to the warrant requirement permits law
enforcement to “conduct a brief, investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.” Lugo, 887 N.W.2d at 486 (quoting
State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008)). The stop may “last no longer
than is necessary to effectuate the purpose of the stop,” Florida v. Royer, 460 U.S. 491,
500 (1983), and its scope must be “strictly tied to and justified by the circumstances that
rendered the initiation of the investigation permissible.” State v. Wiegand, 645 N.W.2d
125, 135 (Minn. 2002).
The United States Supreme Court’s decision in Rodriguez v. United States guides
our analysis here. In Rodriguez the Supreme Court addressed the constitutionality of dog
sniffs that prolong an otherwise completed traffic stop. 575 U.S. 348, 350 (2015). In
Rodriguez police officers pulled over a car after watching it veer slowly onto the shoulder
before pulling back onto the road. Id. at 351. When stopped, Rodriguez, the driver,
informed officers that he had swerved onto the shoulder to avoid a pothole. Id. Officers
issued Rodriguez a written warning, but they did not consider him free to leave. Id. at 352.
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Instead, officers held Rodriguez for another seven to eight minutes so that a drug-sniffing
dog could arrive. Id. The dog alerted to the presence of drugs, and Rodriguez was later
indicted. Id.
Rodriguez moved to suppress the evidence, and the district court denied the motion.
Id. at 352-53. The Eighth Circuit affirmed based on its conclusion that the seven to eight-
minute delay was de minimis. Id. at 353. The Supreme Court vacated the judgment, holding
that police may not routinely extend an otherwise-completed traffic stop, absent reasonable
suspicion, to conduct a dog sniff. Id. 358. See Wiegand, 645 N.W.2d at 136 (stating the
scope of a traffic stop is limited “to that which occasioned the stop, to the limited search
for weapons, and to the investigation of only those additional offenses for which the officer
develops a reasonable, articulable suspicion within the time necessary to resolve the
originally-suspected offense”).
We see this case as indistinguishable from Rodriguez v. United States . As in that
case, before calling for the drug-sniffing dog, Deputies Goerger and Berthiaume had
resolved the initial suspected DWI concern after concluding that Rodriguez was not
intoxicated. But Deputy Berthiaume called the drug-sniffing dog anyway:
DEFENSE COUNSEL: So the dog was ordered?
DEPUTY BERTHIAUME: Yes.
Q: So basically you are saying this isn’t a DWI stop at all?
A: No. It was based on the driving conduct, but after my
questions and investigating it didn’t stay a DWI stop. It became
more of a- -
Q: So after four minutes when you said you decided he wasn’t
impaired, right, that’s what you testified to?
A: Yes.
Q: It became something else then?
A: Yes.
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In other words, the deputies extended the DWI stop by calling in a drug-sniffing dog.
The state concedes that Deputy Berthiaume may not have subjectively believed that
Rodriguez was intoxicated.1 But it argues that Deputy Berthiaume’s belief that Rodriguez
was sober is immaterial for two reasons.
First the state contends that Deputy Berthiaume’s subjective belief that Rodriguez
was not intoxicated is irrelevant because the reasonableness of an officer’s suspicion is an
objective inquiry. But this argument ignores the Minnesota Supreme Court’s analysis in
State v. Wiegand. In Wiegand, the supreme court held that the expansion of the scope of a
routine traffic stop to include a dog sniff was not reasonable. 645 N.W.2d 136. In reaching
that conclusion, the supreme court stressed that “the officer testified he did not suspect
appellants were under the influence of anything.” Id. In other words, the officer’s
subjective belief regarding the appellant s’ lack of intoxication remained relevant in
Wiegand. Here, Deputy Berthiaume’s knowledge remains relevant to this inquiry as well.
Second, the state argues that even if Deputy Berthiaume’s subjective beliefs are
relevant, Trooper Carlson testified that he still believed that Rodriguez was driving
impaired based on the driving conduct and, therefore, performed a DWI investigation. This
argument is undermined by the record. “ During a traffic stop, an officer’s questions must
be limited to the purpose of the stop.” State v. Syhavong, 661 N.W.2d 278, 281 (Minn.
2003). Trooper Carlson’s initial questioning of Rodriguez had nothing to do with a DWI
stop. When Trooper Carlson arrived and went to speak to Rodriguez—five minutes into

1 The state does not address the related testimony by Deputy Goerger that he too believed
Rodriguez to be sober.
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the stop—he first asked Rodriguez, “So you are coming up here from Mexico?” At the
evidentiary hearing, Trooper Carlson conceded that this question had nothing to do with
Rodriguez’s being a potentially impaired driver.
During the stop, Trooper Carlson followed that question up by asking Rodriguez
“What brings you up here then?” and “Why are you all the way up here?” Again, questions
irrelevant to whether Rodriguez was intoxicated. Trooper Carlson appeared to continue this
line of questioning unrelated to a DWI stop by asking Rodriguez about his working out of
Minneapolis and his reasons for being in St . Cloud. Trooper Carlson did not address
Rodriguez’s driving conduct until about three minutes into the exchange and did not ask
Rodriguez about his alcohol consumption until seven minutes after h is initial questioning
began. And while the state is correct that Trooper Carlson did not know with certainty that
Rodriguez was sober until after the PBT, this argument ignores the delay caused by Trooper
Carlson’s drug-trafficking investigation that occurred before the PBT.
Having concluded that the officers expanded the scope and duration of the stop by
continuing to detain Rodriguez after determining that he was not intoxicated and by
questioning him about his international travel, we turn to the issue of whether this
expansion was supported by reasonable suspicion of additional criminal activity.
Deputy Berthiaume testified about the basis for his suspicions when he ordered the
dog and after concluding that Rodriguez was not intoxicated, citing “the driving conduct,
the smell of cologne, that he wasn’t using alcohol, [and that he] didn’t appear to be using
controlled substance.” But the smell of cologne was only suspicious insofar as it could be
used to mask controlled substances, and the officers had already eliminated the possibility
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of controlled-substance use. So , officers were left only with the facts that Rodriguez was
from Mexico, that he had traveled from Texas through Memphis, and that he had driven
erratically before the stop. This is not enough.
We are unpersuaded by the state’s reliance on the fact that Mexico is a “source
country,” and that Texas is a “source state” for narcotics. In Brown v. Texas, the United
Supreme Court considered whether a person’s standing in an alleyway in a neighborhood
frequented by drug users provided the officer with reasonable suspicion of criminal activity
to support the officer stopping the person and asking for his identification. 443 U.S. 47,
51-52 (1979). The Court concluded that it did not, stating:
There is no indication in the record that it was unusual for
people to be in the alley. The fact that appellant was in a
neighborhood frequented by drug users, standing alone, is not
a basis for concluding that appellant himself was engaged in
criminal conduct. In short, the appellant ’s activity was no
different from the activity of other pedestrians in that
neighborhood.
Id. at 52. We believe that the same rationale applies here. Merely coming from a “source
country” or “source state” is not sufficient, standing alone, to support an officer’s
reasonable suspicion. There must be something additional that distinguishes the activity of
the person from other travelers coming from one of these source locations.
We are similarly unpersuaded by the state’s reliance on Rodriguez’s driving conduct
as a basis for reasonable suspicion of drug-related criminal activity. In State v. Burbach the
supreme court rejected a similar argument by the state. 706 N.W.2d 484, 490 (Minn. 2005).
There the officer observed Burbach driving 25 miles over the speed limit, turned on his
emergency lights, and followed as Burbach traveled about a block. Id. at 486. After driving
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for about a block with the officer behind her, Burbach drove an additional three-quarters
of a block in the parking lane before stopping. Id. The court observed that Burbach showed
no signs of impairment. Id. When evaluating the effect of Burbach’s driving conduct on
the reasonable-suspicion analysis, the court he ld that it provided “little reason to suspect
drug possession.” Id. at 490. Given the similar driving-conduct allegation in this case, we
cannot conclude that the driving conduct supports a reasonable suspicion of drug- related
criminal activity.
While we recognize that the reasonable-suspicion standard is not high, State v.
Morse, 878 N.W.2d 499, 502 (Minn. 2016), it does require more than an officer’s “inchoate
and unparticularized suspicion or ‘hunch[.]’ ” State v. Poehler, 935 N.W.2d 729, 733
(Minn. 2019) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). Here officers had no more
than that—a hunch. Their hunch was the basis to extend the stop beyond its permissible
purpose as a DWI investigation in order to investigate a potential drug-trafficking offense.
But the officers’ hunch cannot justify their decision to continue the detention of Rodriguez.
We therefore reverse the district court’s order denying Rodriguez’s pretrial motion
to suppress the unconstitutionally obtained evidence and remand for a new trial. Because
we are reversing Rodriguez’s convictions and remanding for a new trial, we need not
address Rodriguez’s assertion that the district court erred in entering convictions for the
first- and fifth-degree controlled substance offenses.
Reversed and remanded.