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This opinion is nonprecedential except as provided by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
A22-1512

State of Minnesota,
Respondent,

vs.

James Dean Olson, II,
Appellant.

Filed August 7, 2023
Reversed
Bjorkman, Judge

Aitkin County District Court
File No. 01-CR-21-121

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

Jim Ratz, Aitkin County Attorney, Aitkin, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges his convictions for fifth-degree drug possession and
introducing contraband into a jail, arguing that (1) the district court erred in denying his
motion to suppress evidence because his mere presence in a vehicle containing a controlled
2
substance did not establish probable cause to arrest him and (2) the evidence was
insufficient to prove that he knowingly introduced contraband into a jail. Because law-
enforcement officers did not have probable cause to arrest appellant, we reverse.
FACTS
On February 2, 2021, at approximately 11:00 p.m., two officers from the Aitkin
Police Department stopped a car with three occupants after observing suspicious driving
conduct. One officer approached the driver’s side of the car while the other approached
the passenger side, where appellant James Dean Olson, II was sitting in the front seat.
When asked for her driver’s license and proof of insurance, the driver reached into
the glove box and took out a small wallet-like bag. After opening and looking through the
wallet and placing it in her lap, she told the officers that she did not know where her license
and insurance card were. One officer asked if they were in the wallet; she said it was not
her wallet and put it back in the glove box. When the other officer asked her why she had
somebody else’s wallet, she replied that it was just a coin purse and she thought her
insurance card was inside, adding, “Why would I have somebody e lse’s wallet?” While
this conversation was taking place, one of the officers smelled burnt marijuana coming
from the car.
The officers returned to their squad car, ran the driver’s information, and confirmed
that she had a valid driver’s license. The record check also revealed that the driver had an
outstanding arrest warrant.
After returning to the stopped car, the officers asked the driver to get out so they
could talk to her about her warrant and the marijuana smell. They asked if they could
3
search the car, and she said no. During this interaction, one officer observed that the
driver’s “eyes were bloodshot, her pupils were unusually dilated given the lighting
conditions, and she was clenching her jaw,” which he identified as signs of recent stimulant
usage. The officer asked Olson to get out of the car. Olson denied knowledge of any
marijuana odor and the officers did not note any signs of recent drug use by him. The
officers then asked the rear passenger to get out of the car; he too denied knowledge of the
marijuana odor.
Based on the marijuana odor, one officer searched the car while the other officer
spoke with the three occupants. The officer conducting the search found a torch, one dose
of Narcan, and a digital scale inside the center console. He also opened the glove box and
retrieved the wallet-like bag. Inside the wallet were syringes, a glass smoking device, a
spoon, and several small baggies, one of which contained a white crystal residue that the
officer suspected was methamphetamine. The officers arrested the driver and Olson for
possession of a controlled substance and transported them to the Aitkin County jail.
As Olson walked into the jail, a straw containing methamphetamine residue fell
from his person. When jail staff searched him, they found another torch and a small bag
of methamphetamine in his jacket pocket. Olson was charged with (1) fifth-degree
possession of a controlled substance —methamphetamine; (2) gross- misdemeanor
introducing contraband into a jail; and (3) petty misdemeanor possession of drug
paraphernalia. All three counts related to the items found at the jail.
Olson moved to suppress the drug evidence on the basis that the officers did not
have probable cause to arrest him and moved to dismiss the second charge because the
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state could not prove he intentionally introduced contraband into the jail. The district court
denied the motions, concluding the officers had probable cause to arrest Olson for
constructive possession of a controlled substance. Following a stipulated-evidence trial,
the district court found Olson guilty of all three offenses.
Olson appeals.1
DECISION
Olson first challenges the district court’s determination that the officers had
probable cause to arrest him for constructive possession of the methamphetamine. Where,
as here, the relevant facts are not in dispute, we review a pretrial suppression order de novo
and determine whether the police articulated an adequate basis for the search or seizure at
issue. State v. Onyelobi, 879 N.W.2d 334, 342-43 (Minn. 2016).
A seizure by warrantless arrest must be supported by probable cause. Id. at 343.
Probable cause exists “when a person of ordinary care and prudence, viewing the totality
of circumstances objectively, would entertain an honest and strong suspicion that a specific
individual has committed a crime.” State v. Ortega, 770 N.W.2d 145, 150 (Minn. 2009).
The crime “must be a crime for which a custodial arrest is authorized.” State v. Varnado,
582 N.W.2d 886, 892 (Minn. 1998) (emphasis omitted). A person’s mere proximity to
criminal activity does not—in and of itself — establish probable cause to arrest. Ortega,
770 N.W.2d at 150 (citing Ybarra v. Illinois, 444 U.S. 85, 90-92 (1979)).

1 The state did not file a brief in this matter, but we consider the appeal on its merits
pursuant to Minn. R. Civ. App. P. 142.03.
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It is a crime to possess methamphetamine. Minn. Stat. § 152.025, subd. 2 (2020).
The state may prove such possession “through evidence of actual or constructive
possession.” State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017). Actual possession exists
when a person has “direct physical control” over a controlled substance. State v. Barker,
888 N.W.2d 348, 353 (Minn. App. 2016) (quotation omitted) . Constructive possession
exists when the police find the controlled substance (1) “in a place under [the] defendant’s
exclusive control to which other people did not normally have access,” or (2) in a place to
which others have access, but “there is a strong probability (inferable from other evidence)
that [the] defendant was at the time consciously exercising dominion and control over it.”
Onyelobi, 879 N.W.2d at 343 (quotation omitted).
A defendant may constructively possess a controlled substance jointly with another
person. Ortega, 770 N.W.2d at 150. While the defendant’s proximity to the controlled
substance is an important factor in establishing constructive possession, State v. Smith, 619
N.W.2d 766, 770 (Minn. App. 2000), rev. denied (Minn. Jan. 16, 2001), the defendant must
exercise dominion and control over the substance itself, not merely the area in which it was
located, State v. Hunter, 857 N.W.2d 537, 542-43 (Minn. App. 2014). Other evidence must
link the defendant to the controlled substance to establish constructive possession. State v.
Albino, 384 N.W.2d 525, 527-28 (Minn. App. 1986).
Olson argues that we must reverse his convictions for the same reasons we did so in
Albino. This argument has merit. Like Olson, Albino was a passenger in a vehicle that
was stopped late at night for a traffic violation. Id. at 526. The driver was arrested on an
outstanding warrant, and an inventory search of the pickup revealed drugs inside a camera
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case that was found on the floor of the truck against the center of the bench seat. Id. Albino
was arrested for constructive possession of the drugs in the vehicle and brought to the
county jail, where officers discovered methamphetamine in her jacket pocket. Id. We
reversed Albino’s conviction, noting the lack of evidence linking Albino to the drugs other
than her proximity to the camera case:
The record in the present case does not evidence any
strong circumstances that would point to Albino’s guilt. She
did not flee the scene, she was never observed making any
furtive movements or trying to hide the camera case, nor did
she claim any ownership or control over the vehicle. When she
knew the truck was going to be impounded she made no effort
to maintain control over it. Finally, the drugs were in a closed
case. Under these facts, the police officers had no probable
cause to believe that Albino was in constructive possession of
the drugs found in the camera case.

Id. at 528.
Olson’s contention that the officers lacked probable cause to arrest him finds further
support in State v. Slifka, 256 N.W.2d 90 (Minn. 1977). In Slifka, officers stopped the car
in which Slifka was the front-seat passenger for an equipment violation. 256 N.W.2d at
90. Upon observing a six pack of beer and an open bottle between the driver and Slifka,
officers removed the occupants from the car and searched it. Id. at 90-91. After finding
marijuana in the glove box, the officers arrested both occupants. Id. at 91. Our supreme
court affirmed the district court’s suppression order, reasoning:
The officers arguably had reasonable cause to believe
that the driver constructively possessed the marijuana because
the car was his and he was in control of the car. . . . The
situation with respect to [Slifka] is different. The officers did
not have probable cause to believe that he was guilty of
constructive possession of marijuana, and they could not
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justify arresting or searching him as an incident thereof on the
basis of his mere presence in the vehicle.

Id.
As in Albino and Slifka, the record here lacks evidence linking Olson to the
methamphetamine other than his proximity to the glove box in which it was found. Olson
did not own or exercise control over the car, and the methamphetamine and paraphernalia
were in closed compartments. Olson did not flee the scene, did not make furtive
movements, did not touch—let alone attempt to hide— the wallet the driver retrieved from
the glove box and held in her lap, gave no indication that he knew what was in the wallet
or the center console, and exhibited no indicia of stimulant use. On this record, we
conclude that the officers did not have probable cause to arrest Olson for constructive
possession of the controlled substance in the car.
Because we conclude that Olson’s arrest was impermissible, we need not address
his argument that the evidence was not sufficient to support his conviction for introducing
contraband into the jail. Absent a valid arrest, Olson was not subject to being detained and
all evidence obtained from him at the scene and at the jail must be suppressed. See Albino,
384 N.W.2d at 528 (citing Slifka, 256 N.W.2d at 91).
Reversed.