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This opinion is nonprecedential except as provided by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
A23-0118

State of Minnesota,
Respondent,

vs.

Jeremy James Heller,
Appellant.

Filed January 29, 2024
Reversed and remanded
Wheelock, Judge

Hennepin County District Court
File No. 27-CR-22-9269

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

Mary F. Moriarty, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Gaïtas, Presiding Judge; Smith, Tracy M., Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant challenges his convictions for possession of a controlled substance and
possession of a firearm and ammunition by a prohibited person, arguing that the district
court erred by denying his motion to suppress evidence that police officers discovered
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during a warrantless search of his bags because neither the automobile exception nor the
exception for a search incident to arrest applied. We reverse and remand.
FACTS
On October 7, 2021, at 2:00 a.m., police officers responded to a 911 call about a
domestic disturbance at an apartment in Bloomington; the caller identified appellant
Jeremy James Heller as the suspect. The first officer to arrive at the apartment complex
saw a car waiting in the parking lot with its lights on and approached the car. The car’s
driver rolled down his window, identified himself as J.H., and stated that he was waiting
for Heller. The officer smelled marijuana coming from inside the car once J.H. opened the
window. When the officer asked J.H. for his identification, J.H. showed the officer his
driver’s license as well as his permit to carry a firearm and confirmed that he had a firearm.
Two other officers arrived, and around the same time, Heller came out of the
building and went to J.H.’s car. Heller had a gray backpack and a brown leather bag with
him. Heller walked to the front passenger seat and put his bags in the car; J.H. then moved
them to the back seat. The officers asked why someone inside called 911, and Heller stated
that the woman inside was his girlfriend and they had an infant child together but he did
not know why she called 911.
Two officers went into the apartment building to check on the 911 caller. The caller
told the officers that she and her child were safe and nothing had happened but she did not
want Heller in the apartment. One officer remained in the parking lot and watched Heller
and J.H. While watching them from his squad car, the officer confirmed that J.H. owned
the car, that his permit to carry was valid, and that Heller was on probation and was
3
prohibited from possessing a firearm . After a short time, the two officers who had gone
inside the building returned to the parking lot and stated that everything was “all good.”
The officers then decided to search J.H.’s car because the first officer on the scene
had smelled marijuana when he initially approached the car, which was before Heller came
out of the building. One officer asked J.H. to step out of the car and explained that the car
smelled like marijuana , and two officers removed the firearm from the holster on J.H.’s
body. Another officer went to the passenger side of the car, where Heller was sitting in the
front seat. Heller remained calm and told the officer that he did not smoke marijuana. The
officers then had Heller and J.H. stand next to the hood of the squad car while they searched
J.H.’s car.
Two officers searched the front seats of J.H.’s car. One officer identified “residue”
of marijuana on the floor of the car and observed a firearm mounted underneath the steering
wheel on the driver’s side of the center column. The officers then searched the back seat,
and one officer opened the brown leather bag that Heller had carried out of the apartment
building and placed in the car. Inside the bag, the officer found drug paraphernalia. At
that point, the officers stopped searching and arrested J.H. and Heller. When the officers
resumed searching J.H.’s car, they opened the gray backpack that Heller carried out of the
apartment building and discovered a firearm, ammunition, and a white substance that later
tested positive for methamphetamine.
The state charged Heller with possession of a firearm by a prohibited person,
possession of ammunition by a prohibited person, and fifth-degree possession of a
controlled substance based on the contraband the officers found in the gray backpack.
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Heller moved to suppress the evidence as the fruit of an unlawful search, but the district
court denied the motion because it determined that the totality of the circumstances,
including the officers’ inferences, provided the officers with reasonable suspicion to
expand the stop and probable cause to search the car and its contents. After a five-day trial,
a jury found Heller guilty of all three charges, and the district court sentenced him to 60
months in prison.
Heller appeals.
DECISION
Heller argues that the district court erred by denying his motion to suppress the
evidence found in his bags because officers did not have probable cause to search his bags
under any theory. First, he asserts that the officers had neither reasonable, articulable
suspicion to detain him for further investigation after they cleared the 911 call nor probable
cause to search his bags under the automobile exception to the warrant requirement because
the officers searched the bags to find marijuana, but they had smelled marijuana odor
coming from J.H.’s car before Heller approached the car. Second, he asserts that the
officers lacked probable cause to arrest him for constructively possessing the firearm that
was registered to J.H. and found in a car that J.H. owned, and thus searching his bags
incident to arrest was unlawful.
The United States and Minnesota Constitutions prohibit “unreasonable searches and
seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. We review de novo the district
court’s legal determinations in a pretrial order on a motion to suppress evidence as the
result of an unreasonable search or seizure. State v. Barrow, 989 N.W.2d 682, 684 -85
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(Minn. 2023). We must determine “whether the police articulated an adequate basis for
the search or seizure at issue.” State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2008). We
address each of Heller’s arguments in turn.
I. The officers did not have reasonable, articulable suspicion to detain Heller for
investigation after the 911 call was cleared or probable cause to search Heller’s
bags pursuant to the automobile exception.
Heller argues that the officers did not have reasonable, articulable suspicion to
detain him once they concluded their investigation of the 911 call and therefore did not
have probable cause to search his bags. Specifically, he asserts that the officers did not
have reasonable, articulable suspicion to investigate him for marijuana because the first
officer smelled marijuana emanating from J.H.’s car before Heller emerged from the
building and placed his bags in the car. And that because the officers did not have
reasonable, articulable suspicion, the officers could not have developed probable cause to
search his bags pursuant to the automobile exception. Moreover, if probable cause existed
as to the car, it could not have attached to any containers that were not in the car when the
suspicion arose, including Heller’s bags, and therefore, the officers did not have probable
cause to search his bags.
The state contends that the officers could search Heller’s bags because the officers
had reasonable, articulable suspicion to detain him for investigation and probable cause to
search Heller’s bags under the automobile exception based on the following circumstances:
the officers responded to the 911 call, smelled marijuana, knew J.H. had firearms in the
car, knew Heller was on probation, and observed that Heller appeared nervous. The state
made the same arguments to the district court, which agreed that, under the totality of the
6
circumstances, the officers had probable cause to search Heller’s bags pursuant to the
automobile exception.
We review de novo whether an initial stop or investigation by an officer is lawful
and supported by reasonable, articulable suspicion. In re Welfare of G.M., 560 N.W.2d
687, 691 (Minn. 1997). An officer may conduct a brief stop and investigation only if
reasonable, articulable suspicion of criminal activity exists, meaning that the initial stop
cannot be “the product of mere whim, caprice or idle curiosity.” State v. Pike, 551 N.W.2d
919, 921- 22 (Minn. 1996). Rather, the officer must be able to point to “specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). The facts must
be objective and particular to the person under investigation. State v. Harris, 590 N.W.2d
90, 99 (Minn. 1999). “Mere proximity to, or association with, a person who may have
previously engaged in criminal activity is not enough to support reasonable suspicion of
[criminal activity].” State v. Diede, 795 N.W.2d 836, 844 (Minn. 2011). In determining
whether police “had a particularized and objective basis for suspecting the particular
persons stopped of criminal activity . . . the court should consider the totality of the
circumstances and should remember that trained law-enforcement officers are permitted to
make inferences and deductions that might well elude an untrained person.” State v. Kvam,
336 N.W.2d 525, 528 (Minn. 1983) (quotations omitted). Moreover, an investigatory stop
may last only as long as necessary to effectuate its purpose. State v. Bell, 557 N.W.2d 603,
606 (Minn. App. 1996), rev. denied (Minn. Mar. 18, 1997).
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After receiving a 911 call about a domestic disturbance that identified Heller, the
officers had sufficient facts to stop and investigate Heller related to the 911 call. The first
officer to arrive saw a car in the parking lot, smelled marijuana coming from the car , and
spoke with the driver, J.H., who explained that he was waiting for Heller. J.H. showed the
officer his permit to carry a firearm and confirmed that he had a firearm on him. Heller
came out of the building and sat halfway inside of J.H.’s car. Two additional officers
arrived on the scene and went to check on the caller while the first officer remained to
watch Heller and J.H. While watching Heller and J.H., the officer confirmed that J.H.
owned the car and that his permit to carry was valid. Therefore, when the two officers
returned to the parking lot and reported that the 911 caller was safe and that no criminal
activity had taken place, any reasonable, articulable suspicion that Heller had engaged in
criminal activity ceased to exist, and the officers could not continue detaining or
investigating Heller without new specific, articulable facts.
We review de novo a district court’s probable-cause determination as it relates to a
warrantless search. State v. Torgerson, 995 N.W.2d 164, 168 (Minn. 2023). An officer
may conduct a warrantless search of a vehicle if the officer develops “probable cause to
believe the search will result in a discovery of evidence or contraband,” which is “an
objective inquiry,” id. at 168-69 (quoting State v. Lester, 874 N.W.2d 768, 771 (Minn.
2016)), that must be particularized and individualized to the suspect, State v. Burbach,
706 N.W.2d 484, 488 (Minn. 2005). However, the search must be limited to containers
“inside the car at the time probable cause arose” that could contain “the object of the
search.” Barrow, 989 N.W.2d at 688.
8
Here, the officers did not have probable cause to search Heller’s bags under the
automobile exception. The first officer at the scene smelled marijuana coming from J.H.’s
car before Heller approached the car, and no particular facts individualized to Heller arose
during the officers’ interaction with him to support an objective belief that searching his
bags would produce contraband or evidence of a crime. At the time the officers expanded
their investigation and searched the car, the only remaining concern was related to the smell
of marijuana emanating from J.H.’s car that existed before Heller came out of the building.
Because the officers no longer had reasonable, articulable suspicion to detain or investigate
Heller and did not have probable cause to search his bags under the automobile exception,
the district court erred by denying Heller’s motion to suppress on this basis.
II. The officers did not have probable cause to arrest Heller for firearm possession
and therefore did not have probable cause to conduct a search incident to
arrest.
The district court also determined that the search of Heller’s bags was lawful under
the search-incident-to-arrest exception to the warrant requirement because it found there
was probable cause to arrest him for constructive possession of the firearm located under
the car’s steering column during the initial search of the car. Heller argues that the officers
lacked probable cause to arrest him because the firearm was registered to J.H. and was
mounted in J.H.’s car and there was no evidence from which the officers could infer that
Heller was exercising dominion and control over the firearm. Alternatively, Heller argues
that if the officers did have probable cause to arrest him, the search of his bags exceeded
the scope of the search incident to arrest.
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To constitute probable cause for an arrest, the objective facts must be “such that
under the circumstances ‘a person of ordinary care and prudence would entertain an honest
and strong suspicion’ that a crime has been committed.” State v. Johnson, 314 N.W.2d
229, 230 (Minn. 1982) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)). If
a person is lawfully arrested, then officers may conduct a search of the person and the area
within the person’s control incident to that arrest. State v. Bernard, 859 N.W.2d 762, 766
(Minn. 2015); State v. Bradley, 908 N.W.2d 366, 369 (Minn. App. 2018).
To commit the crime of possession of a firearm by a prohibited person, the person
must knowingly possess the firearm and have actual or constructive possession of it. State
v. Harris, 895 N.W.2d 592, 601 (Minn. 2017); State v. Salyers, 858 N.W.2d 156, 161
(Minn. 2015). The constructive-possession doctrine enables the state to prove possession
when the “inference is strong that the defendant at one time physically possessed the
[firearm] and did not abandon his possessory interest in the [firearm] but rather continued
to exercise dominion and control over it up to the time of the arrest.” Salyers, 858 N.W.2d
at 159. A person constructively possesses a firearm if officers find a firearm “in a place
under the defendant’s exclusive control to which other people normally did not have
access” or if “there is a strong probability (inferable from other evidence) that at the time
the defendant was consciously or knowingly exercising dominion and control over it.”
Harris, 895 N.W.2d at 601. Mere proximity to a firearm is insufficient to prove
constructive possession. Id.
In State v. Florine, the supreme court held that the defendant constructive ly
possessed controlled substances found in an abandoned vehicle because officers found the
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substances among a myriad of other items inside the vehicle that clearly belonged to the
defendant— his wallet, identification, clothes, notebooks with his handwriting, mail and
bills addressed to him, and bank receipts. 226 N.W.2d 609, 610-11 (Minn. 1975). The
supreme court reasoned that although the officers discovered the substances in a vehicle
that did not belong to the defendant, other items inside of the vehicle allowed the officers
to develop a strong inference that the defendant constructively possessed the substances.
Id. at 611. And in State v. Porter, we held that the defendant constructively possessed a
firearm found in a residence because, although he was not listed as living at the residence,
the defendant admitted to staying overnight four to five times per week and keeping
personal items there and officers found the firearm inside the residence within five to eight
feet of cocaine that the defendant admitted to possessing. 674 N.W.2d 424, 427 (Minn.
App. 2004). The facts here are distinguishable from these cases.
Unlike the vehicle in Florine, J.H.’s car was not filled with personal property clearly
belonging to Heller that would support an inference that other items in J.H.’s car also
belonged to Heller. The only items in J.H.’s car that the officers identified as belonging to
Heller were the bags that he placed in the car after he came out of the building and after
the first officer smelled marijuana. And unlike in Porter, there is no evidence that Heller
lived in or stored personal items in J.H.’s car such that officers could reasonably infer that
other items in the car belonged to Heller. Instead, the facts in the record establish that the
firearm was mounted underneath the steering wheel on the driver’s side of J.H.’s car and
that officers had verified both that the car was registered to J.H. and that J.H. had a valid
permit to carry the firearm.
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These facts do not support probable cause to believe that Heller constructively
possessed the firearm mounted underneath the steering wheel on the driver’s side of the
center column in J.H.’s car. First, the district court did not make any findings, and we see
no evidence in the record, to support that Heller knew about the firearm mounted
underneath the steering wheel. A person cannot constructively possess an item that they
do not know is present. See Harris, 895 N.W.2d at 601; Salyers, 858 N.W.2d at 161.
Second, the record reflects that J.H.’s firearm was on the driver’s side of the center column.
Although someone seated in the front passenger compartment may have been able to
remove the firearm, the firearm’s location does not support an inference that Heller
exercised dominion and control over it. And even if Heller could have accessed the
firearm, our caselaw instructs that proximity alone does not automatically bring an item
under a person’s dominion and control. Harris, 895 N.W.2d at 601. Without more, the
facts here do not support a strong inference that Heller constructively possessed the firearm
mounted underneath the steering wheel on the driver’s side of the center column.
Because the record lacks objective facts that would support an honest and strong
suspicion that Heller unlawfully possessed J.H.’s firearm, the officers did not have
probable cause to arrest Heller and thus had no basis to search Heller’s bags incident to
arrest. Because we conclude that the officers lacked probable cause to arrest Heller, we do
not reach Heller’s alternative argument that the search of his bags exceeded the permissible
scope of a search incident to arrest.
In sum, because the officers did not have probable cause to search Heller’s bags as
part of an otherwise permissible search of J.H.’s car, and because the officers did not have
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probable cause to arrest Heller for constructive possession of J.H.’s firearm, the district
court erred by denying Heller’s motion to suppress the evidence obtained during the search
of his bags. We reverse the district court’s order denying Heller’s motion to suppress the
evidence and remand for further proceedings.
Reversed and remanded.