State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1515

State of Minnesota,
Respondent,

vs.

Dominic Allan Babineau,
Appellant.

Filed May 19, 2025
Reversed
Frisch, Chief Judge
Concurring specially, Connolly, Judge

Sibley County District Court
File No. 72-CR-22-326

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

Donald E. Lannoye, Sibley County Attorney, Casey J. Swansson, Assistant County
Attorney, Gaylord, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock , Presiding Judge; Frisch, Chief Judge; and
Connolly, Judge.
SYLLABUS
Under the Minnesota Constitution, the odor of marijuana emanating from a vehicle
does not, on its own, provide reasonable, articulable suspicion of criminal activity
sufficient to expand the scope of an equipment-violation vehicle stop given the cannabis
laws in effect at the time of the charged offense.
2
OPINION
FRISCH, Chief Judge
In this direct appeal from the judgment of conviction for first-degree driving while
impaired (DWI), and from a related denial of postconviction relief, appellant argues that
his conviction must be reversed because law enforcement expanded the scope of an
equipment-violation vehicle stop without reasonable, articulable suspicion of criminal
activity, and because his trial counsel rendered ineffective assistance by failing to raise a
meritorious suppression claim on that basis. Because the odor of marijuana, by itself, does
not constitute reasonable, articulable suspicion of criminal activity sufficient to
constitutionally justify expanding the scope of an equipment- violation vehicle stop given
the cannabis laws then in effect, and because trial counsel failed to raise a meritorious and
dispositive motion to suppress on that basis, we reverse.
FACTS
Respondent State of Minnesota charged appellant Dominic Allan Babineau with
(1) first-degree DWI— driving under the influence of a controlled substance in violation of
Minn. Stat. § 169A.20, subd. 1(2) (2022); (2) driving after revocation in violation of Minn.
Stat. § 171.24, subd. 2 (2022); and (3) first-degree DWI —any amount of controlled
substance in the person’s body in violation of Minn. Stat. § 169A.20, subd. 1(7) (2022).
These charges stemmed from a December 17, 2022, equipment- violation stop of the
vehicle driven by Babineau.
1 At Babineau’s jury trial, the state presented evidence that a

1 Before trial, Babineau pleaded guilty to driving after revocation and does not challenge
that conviction on appeal.
3
blood sample had been taken from Babineau pursuant to a search warrant and that testing
on the sample showed the presence of amphetamine and methamphetamine. The jury
found Babineau not guilty of driving under the influence, but guilty of driving with a
controlled substance in his body.
Babineau timely appealed his conviction and then moved to stay the appeal to allow
him to pursue postconviction relief. We stayed the appeal and remanded the matter for
postconviction proceedings. In his petition for postconviction relief, Babineau argued that
law enforcement lacked reasonable suspicion to expand the scope of the
equipment-violation vehicle stop in violation of the Minnesota Constitution, that all
evidence gathered after the illegal expansion of the stop should have been suppressed, and
that trial counsel’s failure to move to suppress that evidence violated Babineau’s
constitutional right to effective assistance of counsel.
At an evidentiary hearing on Babineau’s petition, the Sibley County Sheriff’s
Deputy and Sergeant who initiated the stop testified that they pulled over Babineau’s
vehicle because the passenger-side headlight was not working.
2 At the time of the stop,
the deputy was training under the sergeant’s supervision. The deputy testified that he and
the sergeant followed behind Babineau for several blocks and waited to initiate the stop at
a location where they were protected from the wind. During that time, the officers did not
observe Babineau swerve or cross any lane lines, and Babineau safely stopped his vehicle
after the officers activated the squad-car emergency lights. The sergeant testified that as

2 By the time he testified at the evidentiary hearing, the sergeant’s rank had changed to
deputy. For the sake of clarity and consistency, we refer to him as “the sergeant.”
4
the squad car came to a stop, “the rear seat passenger appeared to be making furtive
movements in the back seat.” The sergeant did not “remember exactly what the movements
were,” but he stated that there was “more movement in a vehicle than what [he] typically
see[s] on a traffic stop.”
The deputy approached the driver’s side of the car while the sergeant approached
the passenger’s side. Babineau was in the driver’s seat and a passenger was seated in the
back seat next to an infant child. The deputy asked Babineau for his license and
registration. Neither officer observed anything illegal in the car or any signs of impairment
from Babineau. The officers returned to their squad car, and the deputy then told the
sergeant—his training officer—that he thought he may have smelled marijuana. The
sergeant testified that he decided to reapproach the vehicle to “verify [the deputy’s]
findings or suspicion of odor of marijuana inside the vehicle.” The sergeant testified that
the crime he suspected had been committed was possession of marijuana. While speaking
with Babineau, the sergeant testified that he smelled marijuana in the vehicle and observed
that Babineau’s pupils appeared to be dilated and that his eyes appeared to be glossy. The
sergeant told Babineau to exit the car, questioned him about the odor of marijuana and his
drug use, conducted field sobriety testing, and ultimately obtained a search warrant to draw
a blood sample from Babineau for chemical testing.
The postconviction court received into evidence the squad- car video, a copy of the
search-warrant application and warrant, and an email from Babineau’s trial counsel
explaining why he did not raise a suppression claim. The postconviction court also
5
accepted the parties’ stipulation that “marijuana and hemp cannot be differentiated by
appearance or aroma.”
The postconviction court denied Babineau’s petition for postconviction relief,
concluding that the initial expansion of the scope of the stop was warranted based on the
deputy’s “detection of an odor of marijuana” and the sergeant’s “observations of furtive
movements inside the vehicle.”
We then dissolved the stay and reinstated this appeal.
ISSUES
I. Does the odor of marijuana, on its own, provide reasonable, articulable suspicion of
criminal activity sufficient to expand the scope of an equipment-violation vehicle
stop under the Minnesota Constitution given the cannabis laws in effect at the time
of the charged offense?

II. Did Babineau’s trial counsel render ineffective assistance by failing to move to
suppress evidence obtained following the expansion of the scope of the vehicle
stop?

ANALYSIS
Babineau argues that his conviction must be reversed because he received
ineffective assistance of counsel. Specifically, he argues that his trial counsel was
ineffective for failing to move to suppress evidence obtained as a result of an illegal
expansion of an equipment-violation vehicle stop because law enforcement had no
reasonable, articulable basis to suspect that Babineau had been involved in criminal
activity. He asserts that the perceived odor of marijuana alone did not afford a reasonable,
articulable basis to expand the stop, that a suppression motion would have been
meritorious, and that counsel’s failure to seek suppression of illegally obtained evidence
6
both fell below an objective standard of reasonableness and was dispositive of the outcome
of the case.
We review the denial of postconviction relief for an abuse of discretion. Pearson v.
State, 891 N.W.2d 590 , 596 (Minn. 2017). “A postconviction court abuses its discretion
when it has exercised its discretion in an arbitrary or capricious manner, based its ruling on
an erroneous view of the law, or made clearly erroneous factual findings.” Ries v. State ,
920 N.W.2d 620, 627 (Minn. 2018) (quotation omitted). Because claims of ineffective
assistance of counsel “present mixed questions of law and fact,” we review the
postconviction court’s legal conclusions on such questions de novo. State v. Nicks, 831
N.W.2d 493, 503 (Minn. 2013).
Against this backdrop, we begin by addressing Babineau’s argument that the
expansion of the scope of the vehicle stop was unconstitutional. We then consider his
ineffective-assistance-of-counsel claim.
I. Law enforcement lacked reasonable, articulable suspicion of criminal activity
sufficient to expand the scope of the equipment-violation vehicle stop.

Babineau argues that the deputy’s stated belief that he might have smelled marijuana
coming from Babineau’s vehicle did not provide the sergeant with a reasonable, articulable
suspicion of criminal activity sufficient to expand the scope of the vehicle stop under the
Minnesota Constitution. “Whether there is reasonable suspicion is a mixed question of fact
and constitutional law.” State v. Lugo, 887 N.W.2d 476, 487 (Minn. 2016). When, as here,
the relevant facts are undisputed, we review whether police had reasonable suspicion to
expand the scope of a limited investigatory stop de novo. Id.
7
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Under
the Minnesota Constitution, “a person has been seized if in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he or she was
neither free to disregard the police questions nor free to terminate the encounter.” State v.
Cripps, 533 N.W.2d 388, 391 (Minn. 1995). There is no dispute that Babineau was
lawfully seized when the officers turned on their squad car’s emergency lights based on
the vehicle’s burnt-out headlight. See State v. Bergerson, 659 N.W.2d 791, 795-96
(Minn. App. 2003) (holding seizure occurred when an officer activated their squad car’s
flashing lights to initiate a stop); see also State v. George, 557 N.W.2d 575, 578 (Minn.
1997) (“Ordinarily, if an officer observes a violation of a traffic law, however insignificant,
the officer has an objective basis for stopping the vehicle.”).
Generally, warrantless searches and seizures are unreasonable. State v. Pauli, 979
N.W.2d 39, 46 (Minn. 2022). However, a police officer may “conduct a brief, investigatory
stop of a motor vehicle when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” State v. Taylor, 965 N.W.2d 747, 752 (Minn. 2021) (quotation
omitted). But the scope of an investigatory vehicle stop “must be limited to the justification
for the stop.” State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005) (quotation omitted).
Under article I, section 10 of the Minnesota Constitution, any expansion of the scope of
the stop “not strictly tied to the circumstances that rendered the initiation of the stop
permissible must be supported by at least a reasonable suspicion of additional illegal
activity.” State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012) (citing State v. Askerooth,
8
681 N.W.2d 353, 364-65 (Minn. 2004)); see also State v. Wiegand, 645 N.W.2d 125, 135
(Minn. 2002) (explaining that “[e]xpansion of the scope of the stop to include investigation
of other suspected illegal activity” requires “reasonable, articulable suspicion of such other
illegal activity”). To be reasonable, any additional intrusion unrelated to the initial purpose
of the stop “must be supported by an objective and fair balancing of the government’s need
to search or seize and the individual’s right to personal security free from arbitrary
interference by law officers.” State v. Sargent, 968 N.W.2d 32, 38 (Minn. 2021) (quotation
omitted). Additionally, article I, section 10 of the Minnesota Constitution requires that
“the basis for justifying an intrusion during a minor traffic stop be individualized to the
driver toward whom the intrusion is directed.” Askerooth, 681 N.W.2d at 364.
“Reasonable suspicion must be ‘particularized’ and based on ‘specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.’” Taylor, 965 N.W.2d at 752 (emphasis added) (quoting Terry v.
Ohio, 392 U.S. 1, 21 (1968)). An officer’s subjective good-faith belief that criminal
activity is afoot is not enough to establish reasonable suspicion—rather, on review, we
must “examine whether the suspicion was objectively reasonable.” State v. Britton, 604
N.W.2d 84, 88 (Minn. 2000). And while the reasonable-suspicion standard is “less
demanding” than the probable-cause standard, it still “requires at least a minimal level of
objective justification.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quoting
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). An officer “must be able to point to
objective facts” to support a suspicion of criminal activity, “and may not base his or her
9
conclusion on a ‘hunch.’” Cripps, 533 N.W.2d at 391-92 (quoting State v. Johnson, 444
N.W.2d 824, 825-26 (Minn. 1989)).
We consider the totality of the circumstances in determining whether reasonable
suspicion existed to expand the scope of a vehicle stop. State v. Flowers, 734 N.W.2d 239,
251 (Minn. 2007). The state bears the burden to demonstrate that an investigatory stop
was “sufficiently limited” in scope and duration. Askerooth, 681 N.W.2d at 365.
A. The sergeant expanded the scope of the vehicle stop when he
reapproached Babineau’s vehicle to investigate the odor of marijuana.

Babineau argues that the sergeant expanded the scope of the stop when he “decided
to leave [the] squad car, re-approach Babineau’s vehicle, and re-initiate questioning to
investigate the marijuana odor.” We agree.
“Each incremental intrusion during a stop must be strictly tied to and justified by
the circumstances which rendered the initiation of the stop permissible.” Sargent, 968
N.W.2d at 38 (quotations omitted). While conducting a vehicle stop, “an officer’s
questions must be limited to the purpose of the stop.” State v. Syhavong, 661 N.W.2d 278,
281 (Minn. App. 2003) (citing Florida v. Royer, 460 U.S. 491, 498-500 (1983)). And
“even a single question, depending on its content, could expand the scope of a traffic stop.”
Smith, 814 N.W.2d at 351 n.1.
Here, law enforcement stopped Babineau for an equipment violation. When the
officers returned to their squad car, the deputy informed his supervising sergeant that he
thought he may have smelled marijuana coming from the vehicle. The sergeant testified
that because the deputy was in field training and unable to provide “a definite yes or no”
10
as to whether he had smelled marijuana, the sergeant decided to “investigate further.” The
sergeant’s decision to reapproach the car to ask Babineau questions specifically to
investigate the odor of marijuana was an additional intrusion that expanded the scope of
the initial equipment- violation vehicle stop. See State v. Fort, 660 N.W.2d 415, 419
(Minn. 2003) (concluding that “investigative questioning” related to the presence of
weapons and narcotics expanded the scope of a routine traffic stop); Syhavong, 661 N.W.2d
at 281 (concluding that officer unlawfully expanded the scope of an equipment- violation
stop by asking the driver if there was anything illegal in the car).
The state argues that because the officers would necessarily have been required to
make further contact with Babineau to return his driver’s license, the sergeant’s “level of
intrusion” in reapproaching the vehicle “can only be described as de minimis.” T he state
appears to suggest that such a “de minimis” intrusion does not require reasonable suspicion.
The state does not cite to any authority in support of this proposition, and we find no
constitutional support or justification for such a novel distinction. To the contrary, we
expressly rejected a similar position in Syhavong, in which the state argued that because
the officer’s “questions were not overly intrusive, and because the stop was relatively brief,
no suspicion of criminal activity was necessary to justify the questioning.” 661 N.W.2d at
282. In rejecting the state’s argument, we explained that “[a]ctivities that exceed the scope
of a stop are not made reasonable because they are short in duration.” Id. And the supreme
court has made clear that reasonable suspicion is required to support “any increase in the
intrusiveness” of a vehicle stop. Sargent, 968 N.W.2d at 42 (emphasis added) (quotation
omitted).
11
Here, the sergeant’s stated purpose in reapproaching Babineau’s vehicle was to
expand the stop to investigate the odor of marijuana coming from the vehicle. The sergeant
further confirmed that his decision to reapproach was not to return the license but instead,
to investigate the deputy’s report that the deputy may have smelled marijuana. Otherwise,
according to the sergeant, the deputy— and not the sergeant —would have reinitiated
contact to return the license. Stated differently, the undisputed record establishes that the
sergeant expanded the stop in a manner unrelated to the initial justification for the stop. In
sum, because the officers stopped Babineau for an equipment violation, the sergeant’s
decision to reapproach the vehicle to investigate the odor of marijuana constituted an
expansion of the scope of the stop requiring reasonable suspicion of additional criminal
activity.
B. The deputy’s report that he thought he may have smelled marijuana
emanating from the vehicle did not establish reasonable, articulable
suspicion of criminal activity sufficient to expand the scope of the stop.

Babineau argues that the odor of marijuana, on its own, did not provide the sergeant
with reasonable, articulable suspicion sufficient to expand the scope of the
equipment-violation stop because at the time of alleged offense, there were several ways
in which a person could possess cannabis without committing a crime. We agree.
At the time of Babineau’s arrest, marijuana was listed as a Schedule I controlled
substance. Minn. Stat. § 152.02, subd. 2(h) (2022). Marijuana was defined as “all parts of
the plant of any species of the genus Cannabis.” Minn. Stat. § 152.01, subd. 9 (2022).
Minnesota law provided three exceptions that made cannabis possession noncriminal. See
State v. Torgerson , 995 N.W.2d 164, 169-70 (Minn. 2023). The first exception was for
12
“hemp,” defined as having a delta-9 tetrahydrocannabinol concentration of less than 0.3
percent. See Minn. Stat. § 152.22, subd. 5a (2022) (defining “hemp” by reference to the
definition of “industrial hemp” set forth in Minn. Stat. § 18K.02, subd. 3 (2022)). The
second exception was for medical cannabis possessed pursuant to Minnesota’s medical
cannabis registry program. Minn. Stat. § 152.32, subd. 2 (2022). And the third exception
made possession of a “small amount”—“42.5 grams or less”—of marijuana a noncriminal
petty misdemeanor. Minn. Stat. §§ 152.027, subd. 4(a); .01, subd. 16 (2022). Under certain
circumstances, possession of over 1.4 grams or more of marijuana in a motor vehicle was
a misdemeanor, but possession of 1.4 grams or less was a noncriminal offense. Minn. Stat.
§ 152.027, subd. 3 (2022); Torgerson, 995 N.W.2d at 170. Consequently, under this
statutory scheme, possession of marijuana was “not always a crime.” Torgerson, 995
N.W.2d at 170.
Our precedential caselaw does not directly addresses whether, given the cannabis
laws in effect at the time of Babineau’s arrest, the odor of marijuana by itself may have
provided reasonable suspicion of criminal activity sufficient to expand the scope of a
vehicle stop. In Torgerson, the supreme court held that “[i]n the absence of any other
evidence as part of the totality of the circumstances analysis, the evidence of the
medium-strength odor of marijuana, on its own, is insufficient” to establish probable cause
justifying a warrantless vehicle search. Id. at 175. But the supreme court explicitly
declined to address whether, under the same circumstances, the odor of marijuana may give
rise to reasonable suspicion of criminal activity, concluding that Torgerson had forfeited
the argument by failing to raise the issue in the proceedings below. Id. at 169 n.4.
13
While Torgerson addressed only whether the odor of marijuana alone established
probable cause to expand the scope of a vehicle stop, its reasoning provides useful guidance
for addressing the issue presented here. First, in Torgerson, the supreme court rejected the
state’s argument “that the odor of marijuana emanating from a vehicle, on its own, will
always create the requisite probable cause to search a vehicle,” emphasizing that such a
bright-line rule was inconsistent with a totality-of-the-circumstance s analysis required to
determine probable cause. Id. at 173. But the supreme court also declined to impose “a
bright-line rule in the other direction that probable cause cannot exist if there is any legal
explanation for the marijuana odor.” Id. Instead, the supreme court concluded that the
odor of marijuana may be considered as one of the circumstances informing the totality-
of-the-circumstances analysis. Id. Because the reasonable -suspicion inquiry likewise
requires application of a totality-of-the-circumstances test, Flowers , 734 N.W.2d at 251,
the application of a bright-line rule is also inappropriate in this context. Rather, following
the logic of Torgerson , in determining whether reasonable suspicion exists, the odor of
marijuana may be considered as a relevant factor among the totality of the circumstances
and not as a dispositive factor.
Second, in Torgerson, the supreme court relied heavily on its holding in Burbach
that under the Minnesota Constitution, “an officer’s detection of the odor of alcohol coming
from an adult passenger during a traffic stop does not, by itself, provide a reasonable,
articulable suspicion of an open- container violation sufficient” to expand the scope of a
routine traffic stop. Burbach, 706 N.W.2d at 489. In Burbach, a police officer stopped a
vehicle for speeding. Id. at 486. While talking to Burbach, the officer detected a “strong
14
odor of alcohol.” Id. A passenger in the vehicle volunteered that the smell came from him.
Id. The officer testified that Burbach’s nervousness suggested impairment, but Burbach
otherwise displayed no signs of impairment. Id. at 486-87. The officer eventually obtained
Burbach’s consent to search the vehicle and discovered contraband. Id. at 487. The
supreme court determined that the request for consent to search improperly expanded the
scope of the stop because it was unsupported by reasonable suspicion of additional criminal
activity. Id. at 489. In Torgerson, the supreme court explained that Burbach was helpful
to its analysis “because it shows that reasonable suspicion—which requires a lesser
showing than probable cause—did not exist when the only evidence of wrongdoing was
the odor of alcohol.” 995 N.W.2d at 172-73.
To summarize, Burbach held that the odor of alcohol alone does not provide
reasonable suspicion sufficient to expand the scope of a vehicle stop. And Torgerson’s
adoption of Burbach’s analytical framework established that, for purposes of a
totality-of-the-circumstances inquiry, the odor of alcohol and the odor of marijuana are
analogous circumstances. Torgerson therefore confirms that the principles set forth in
Burbach inform our consideration of the issue here—whether the odor of marijuana on its
own may amount to reasonable suspicion sufficient to expand the scope of an equipment-
violation stop.
In a recent nonprecedential opinion, we applied Torgerson and Burbach to conclude
that “[t]he odor of marijuana emanating from” a vehicle failed “to support reasonable,
articulable suspicion” of criminal activity. State v. Dawson, No. A24-0573, 2024 WL
4481412, at *7-9 (Minn. App. Oct. 14, 2024), rev. denied (Minn. Feb. 18, 2025). In
15
Dawson, an officer on routine patrol received a tip that Dawson’s vehicle was parked in a
“high-crime area” along with another car and that one of the vehicles potentially contained
a large amount of cocaine. Id. at *1. The officer approached Dawson’s already-stopped
vehicle and engaged him in conversation, at which point he detected the odor of marijuana
and initiated a seizure by asking Dawson to exit the vehicle. Id. at *1-2, *4-5. In
concluding that the officer unlawfully seized Dawson, we reasoned that “[i]f an officer’s
detection of the odor of alcohol coming from an adult passenger is not enough to support
reasonable, articulable suspicion of an open -container violation, then . . . the odor of
marijuana likewise cannot support such reasonable suspicion here.” Id. at *9. The
reasoning set forth in Dawson is persuasive. See Minn. R. Civ. App. P. 136.01, subd. 1(c).
Accordingly, we hold that under the Minnesota Constitution, the odor of marijuana
emanating from a vehicle does not, on its own, provide reasonable, articulable suspicion of
criminal activity sufficient to expand the scope of an equipment-violation vehicle stop
given the cannabis laws in effect at the time of the charged offense. 3
Applying the above -stated principles to the case before us, we conclude that the
sergeant lacked reasonable, articulable suspicion to expand the scope of the
equipment-violation vehicle stop to investigate the odor of marijuana. At the time of the
expansion, the only objective and particularized information supporting the sergeant’s
suspicion of criminal activity was the deputy’s report that he thought he may have smelled

3 Our holding is expressly tied to Minnesota’s legal framework for cannabis possession in
existence at the time of the charged offense. We express no opinion as to whether
subsequent changes to Minnesota’s cannabis laws might warrant a different outcome.
16
marijuana coming from the vehicle. But as the parties stipulated, the odor of marijuana
and legal hemp are indistinguishable. And the deputy articulated no other basis to support
a reasonable suspicion that the odor he detected indicated the presence of criminal
quantities of marijuana, as opposed to legal hemp or legal marijuana. Moreover, Babineau
had not been speeding or exhibiting any signs of erratic driving, and when the officers
initiated the vehicle stop, Babineau pulled the car over safely and without incident. Prior
to expanding the stop, neither the deputy nor the sergeant observed any signs of impairment
or anything illegal in the car, further undermining the state’s argument that the totality of
the circumstances gave rise to objectively reas onable suspicion of criminal activity. 4 See
Dawson, 2024 WL 4481412, at *9 (noting that the defendant “displayed no signs of
impairment and that no illegal substances or paraphernalia were in plain view” as support
for conclusion that the investigating officer lacked reasonable suspicion); cf. Torgerson,
995 N.W.2d at 175 (concluding that the absence of signs of impairment, drug
paraphernalia, or other evidence indicating that marijuana “was being used in a manner, or
was of such a quantity, so as to be criminally illegal” weighed against a finding of probable
cause).

4 Although the sergeant testified that Babineau’s pupils appeared to be dilated and his eyes
appeared to be glossy, those observations occurred only after the sergeant had
reapproached the vehicle and expanded the scope of the stop. Accordingly, these potential
indicators of impairment cannot be considered in the totality-of-the- circumstances test to
determine whether the expansion itself was supported by reasonable suspicion. See State
v. Diede, 795 N.W.2d 836, 843- 44 (Minn. 2011) (concluding that factual circumstances
that “did not yet exist when Diede was seized” could not serve as objective basis to justify
seizure).
17
Additionally, the deputy’s detection of the odor of marijuana was equivocal. He
stated that he thought he may have smelled the odor of marijuana coming from the vehicle,
but could not provide “a definite yes or no.” Nor could the deputy remember how strong
or weak the odor of marijuana was. While the odor of marijuana can support an officer’s
suspicion of criminal activity, the deputy’s equivocal report that he thought he may have
smelled marijuana, without more, did not provide reasonable, articulable suspicion of
additional criminal activity justifying Babineau’s continued detention for investigative
purposes. Cf. Burbach , 706 N.W.2d at 489 (holding that officer’s unequivocal detection
of odor of alcohol did not give rise to reasonable suspicion of criminal activity); Torgerson,
995 N.W.2d at 175 (holding that unequivocal evidence of “medium-strength odor of
marijuana” emanating from vehicle was insufficient to establish probable cause).
The state argues that, in addition to the odor of marijuana, the sergeant’s observation
of “furtive movements” within the car supported a reasonable suspicion of criminal
activity. But at the evidentiary hearing, the sergeant could not specify or otherwise
describe these supposedly “furtive movements.” As previously noted, an officer “must
demonstrate objective facts to justify” a reasonable suspicion of criminal activity.
Syhavong, 661 N.W.2d at 282. “[A] subjective assessment derived from the officer’s
perceptions,” devoid of any particularized description of the individual’s actions, cannot
serve as the type of objective fact necessary to support reasonable suspicion. Id.;
cf. Flowers, 734 N.W.2d at 245, 252 (concluding that driver’s actions over the course of
45 seconds—including making a distinct lunging motion toward the passenger door,
leaning fully into the passenger’s seat, and slamming his hand on the driver’s door panel
18
as if he was trying to pull it apart—constituted furtive movements giving rise to reasonable
suspicion of illegal activity).
The sergeant testified that as the squad car came to a stop behind Babineau, he
observed that the “rear seat passenger appeared to be making furtive movements,” and that
these movements factored into his suspicions concerning illegal possession of marijuana.
But when asked to detail what he observed, the sergeant testified: “Again, I don’t recall
exactly the movements that I saw but, again, it was just more than . . . what I would typically
see out of a standard traffic stop.” The sergeant failed to provide any factual description
of what he observed from which any rational inference could be drawn to support a
reasonable, articulable suspicion of criminal activity. See Terry, 392 U.S. at 21. We
therefore conclude that because the sergeant’s conclusory characterization of the
movements as “furtive”—without any factual description— was a subjective and
conclusory assessment unsupported by any specific and articulable facts indicating
criminal activity, it cannot serve as a basis for reasonable, articulable suspicion. See
Syhavong, 661 N.W.2d at 282; accord Joshua v. DeWitt, 341 F.3d 430, 444-48 (6th Cir.
2003) (concluding that appellate court’s “finding of furtive gestures [was] not supported
by objective facts” and therefore could not support reasonable suspicion of criminal
activity).
And even assuming that the sergeant’s original observations gave rise to some
modicum of suspicion, that suspicion was dispelled well before the sergeant decided to
expand the vehicle stop. See State v. Mahr, 701 N.W.2d 286, 290 (Minn. App. 2005)
(explaining that reasonable suspicion no longer exists when an “officer’s initial reasonable
19
suspicion is dispelled by further investigation”). When the sergeant first approached the
vehicle, he saw an infant in the back seat of the car next to the passenger. At the evidentiary
hearing, the sergeant testified that during his initial approach, he did not observe anything
illegal in the vehicle and admitted that the movements he observed might have been
attributable to the passenger tending to the child. And although the sergeant maintained
that his observation of furtive movements contributed to his suspicion of illegal marijuana
possession, his subjective assessment must be considered against an objective standard of
reasonableness. See Britton, 604 N.W.2d at 88. We conclude that, from the perspective
of a reasonable police officer, any suspicion associated with the passenger’s allegedly
furtive movements would have been dispelled after seeing the infant child in the back seat
next to the passenger. Under the totality of circumstances, including the sergeant’s
conclusory assertion of “furtive movements,” which he conceded could have been
attributable to infant care, the state has not established an objectively reasonable,
articulable suspicion of criminal activity.
For all these reasons, we conclude that the state has failed to meet its burden to show
that the totality of the circumstances established objectively reasonable suspicion of
additional criminal activity sufficient to expand the scope of the equipment- violation
vehicle stop.
C. The evidence obtained after the unlawful expansion of the vehicle stop
would have been excluded had trial counsel moved to suppress.

Generally, evidence obtained through an unlawful expansion of the scope of a
vehicle stop must be suppressed. See Fort, 660 N.W.2d at 416; Syhavong, 661 N.W.2d at
20
282. This rule extends to any evidentiary “fruits” derived from an unlawful government
intrusion. State v. Horst, 880 N.W.2d 24, 36 (Minn. 2016). After expanding the scope of
the stop, the officers observed some signs suggesting Babineau was impaired, discovered
that Babineau’s tongue “appeared to have a green color to it,” and obtained admissions
from Babineau and the passenger that they had both smoked marijuana prior to driving.
Had trial counsel moved to suppress, these observations and admissions would have been
excluded as unlawfully obtained evidence because the evidence was discovered only after
the sergeant illegally expanded the scope of the stop to investigate the odor of marijuana.
And the sergeant relied on these same facts to establish probable cause to effect an arrest
for driving while impaired and obtain a search warrant for Babineau’s blood sample. In
sum, all of the evidence used to convict Babineau would have been suppressed as the fruit
of the unconstitutional expansion of the scope of the stop. See Burbach, 706 N.W.2d at
491 (concluding that all evidence obtained subsequent to unlawful expansion of vehicle
stop must be suppressed); Syhavong, 661 N.W.2d at 282 (same).
II. Babineau’s trial counsel rendered ineffective assistance by failing to move to
suppress evidence.

Babineau argues that his trial counsel was ineffective for failing to raise a
suppression challenge that would have resulted in exclusion of the evidence necessary to
support his conviction for driving with any amount of controlled substance in his body.
We agree.
The Sixth Amendment of the United States Constitution and article I, section 6 of
the Minnesota Constitution guarantee a criminal defendant the right to effective assistance
21
of counsel. Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016) (citing Strickland v.
Washington, 466 U.S. 668, 686 (1984)). To establish that counsel was ineffective under
the two-prong Strickland test, Babineau must show (1) that his trial counsel’s performance
“fell below an objective standard of reasonableness” and (2) that but for counsel’s
unreasonable performance, there is a reasonable probability that the result of the
proceeding would have been different. 466 U.S. at 687-88, 694. In reviewing a claim of
ineffective assistance of counsel, our “scrutiny of counsel’s performance must be highly
deferential.” State v. Rhodes, 657 N.W.2d 823, 844 (Minn. 2003) (quotation omitted).
Trial counsel’s failure to raise a suppression claim “does not constitute per se
ineffective assistance of counsel.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).
But “a single, serious error may support” an ineffective-assistance-of-counsel claim. Id. at
383. “An attorney’s ignorance of a point of law that is fundamental to his case combined
with his failure to perform basic research on that point is a quintessential example of
unreasonable performance under Strickland.” Hinton v. Alabama, 571 U.S. 263, 274
(2014); see also State v. Beecroft, 813 N.W.2d 814, 855 (Minn. 2012) (Anderson, J.,
concurring) (explaining that deference to counsel “is unwarranted” when counsel’s error
did not result from strategy, “but was instead the result of a misunderstanding of facts or
law or an inexcusable oversight” (citing Kimmelman, 477 U.S. at 385)).
Trial counsel’s performance was objectively unreasonable for three reasons. First,
we have already determined that law enforcement unconstitutionally expanded the scope
of the vehicle stop and that the evidence obtained following that expansion would have
been excluded had trial counsel filed a motion to suppress. Trial counsel therefore failed
22
to raise a meritorious, outcome-determinative claim, and the failure to bring such a claim
is objectively unreasonable. See Kimmelman, 477 U.S. at 383.
Second, trial counsel’s decision to forgo a suppression challenge was not the product
of reasonable strategic considerations. See i d. at 385. Rather, it was based on a
misunderstanding of the facts and the law. In a statement admitted into evidence during
the postconviction hearing, trial counsel stated that he did not move to suppress because
“[t]he smell of marijuana plus the admission of . . . Babineau that he had smoked just prior
to driving and physically exhibited some signs of possible impairment” provided the
officers with reasonable suspicion to expand the scope of the stop. But, as previously
explained, Babineau’s admission and the officer’s observations of the signs of possible
impairment arose only after the unlawful expansion of the stop. Therefore, as a matter of
law, those facts could not serve as an objective basis to expand the scope of the stop. See
Diede, 795 N.W.2d at 843-44. And trial counsel did not articulate any other strategic
considerations motivating his decision to forgo a suppression challenge.
Finally, trial counsel waived all suppression issues before the state completed
chemical testing on the blood sample. Trial counsel’s decision to forgo a suppression
challenge before learning the import of potentially critical evidence reinforces our
conclusion that this decision was not the product of reasonable strategic considerations. In
sum, because trial counsel failed to raise a meritorious, outcome-determinative claim based
on a misunderstanding of the law rather than reasonable strategic considerations, Babineau
has met his burden to establish objectively unreasonable performance. See Kimmelman,
477 U.S. at 383-85.
23
Babineau has also satisfied his burden to demonstrate prejudice based on trial
counsel’s deficient performance. Babineau pleaded guilty to driving with a revoked license
prior to trial, was acquitted of driving under the influence, and was convicted only of
driving with any amount of controlled substance in his body. The blood-test results—
which we conclude should have been suppressed—were the state’s only available means
to meet its burden to obtain a conviction on that count. Had that evidence been suppressed,
the state would not have met its burden.
In sum, Babineau established a violation of his right to effective counsel because
trial counsel’s failure to move to suppress fell below an objective standard of reasonable
representation and because there is a reasonable probability that absent counsel’s error the
only charge for which Babineau was ultimately convicted would have been dismissed. See
Strickland, 466 U.S. at 687-88, 694.
DECISION
Under the Minnesota Constitution, the odor of marijuana emanating from a vehicle
does not, on its own, constitute reasonable, articulable suspicion of criminal activity
sufficient to expand the scope of an equipment-violation vehicle stop given the cannabis
laws in effect at the time of the charged offense. The sergeant therefore lacked reasonable
suspicion to expand the scope of the vehicle stop based solely on the deputy’s report that
he may have smelled marijuana coming from Babineau’s vehicle. And bec ause trial
counsel’s decision not to move to suppress evidence obtained from an illegal stop was
objectively unreasonable and because such a motion would have resulted in the dismissal
of the only charge for which Babineau was convicted, Babineau was deprived of his
24
constitutional right to effective assistance of counsel. For these reasons, we conclude that
the postconviction court abused its discretion in denying Babineau’s petition for
postconviction relief.
Reversed.

CS-1
CONNOLLY, Judge (concurring specially)
I agree that under the unique facts and circumstances of this case, there was an
illegal expansion of the stop under the Minnesota Constitution.
I write separately to emphasize two points.
First, I do not believe there was an illegal expansion of the stop when the sergeant
reapproached the vehicle. The stop was expanded only when he began to question
appellant after reapproaching the vehicle. What made that expansion illegal is that the
deputy who was in “field training” thought only that “he may have smelled the odor of
marijuana” and the sergeant admitted under oath that he returned to the vehicle for the sole
purpose of investigating the crime of “possession of marijuana,” which in 2022 may not
have been a crime given the state of the law. (Emphasis added.)
1
Second, the future precedential value of this opinion is limited: it does not apply to
investigative seizures occurring on or after August 1, 2023.
As the majority points out, marijuana was listed as a Schedule I controlled substance
at the time of appellant’s arrest. Minn. Stat. § 152.02, subd. 2(h) (2022). Marijuana was
defined as “all parts of the plant of any species of the genus Cannabis.” Minn. Stat.
§ 152.01, subd. 9 (2022). Minnesota law provided three exceptions that made certain
cannabis possession noncriminal. See State v. Torgerson, 995 N.W.2d 164, 169-70 (Minn.
2023). The first exception was for “hemp,” defined as having a delta-9

1 The record is unclear as to what questions were asked by the sergeant, as the sergeant
testified that he did not recall the type of conversation he had with appellant, but assumed
that it related to the smell of marijuana because the search warrant application states that
the “[d]river admitted to smoking marijuana just prior to driving.”
CS-2
tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. See
Minn. Stat. § 152.22, subd. 5a (2022) (defining “hemp” by reference to the definition of
“industrial hemp” set forth in Minn. Stat. § 18K.02, subd. 3 (2022)); State v. Loveless, 987
N.W.2d 224, 232 (Minn. 2023). The second exception was for medical cannabis possessed
pursuant to Minnesota’s medical cannabis registry program. Minn. Stat. § 152.32, subd. 2
(2022). And the third exception made possession of a “small amount” of marijuana a
noncriminal petty misdemeanor. Minn. Stat. § 152.027, subd. 4(a) (2022). “Small
amount” was defined as “42.5 grams or less.” Minn. Stat. § 152.01, subd. 16 (2022).
Possession of over 1.4 grams of marijuana in a motor vehicle was a misdemeanor, but
possession of 1.4 grams or less was a noncriminal offense. Minn. Stat. § 152.027, subd. 3
(2022); Torgerson, 995 N.W.2d at 170.
2 Consequently, under the statutory scheme in place
at the time of appellant’s arrest, possession of marijuana was “not always a crime.”
Torgerson, 995 N.W.2d at 170.
The statutory scheme in place today is quite different. Minn. Stat. § 169A.36, subd.
2 (2024) provides:
Use; crime described. It is a crime for a person to use
cannabis flower, a cannabis product, a lower -potency hemp
edible, a hemp-derived consumer product, or any other product
containing an artificially derived cannabinoid in a motor
vehicle when the vehicle is on a street or highway.

And Minn. Stat. § 169A.36, subd. 3 (2024), provides:

2 Pursuant to Minn. Stat. § 152.027, subd. 3, a “person is guilty of a misdemeanor if the
person is the owner of a private motor vehicle, or is the driver of the motor vehicle if the
owner is not present, and possesses” more than 1.4 grams of marijuana either on their
person or “within the area of the vehicle normally occupied by the driver or passengers.”
This provision has since been repealed. 2023 Minn. Laws ch. 63, art. 6, § 73, at 2900.
CS-3

Possession; crime described. It is a crime for a person
to have in possession, while in a private motor vehicle on a
street or highway, any cannabis flower, a cannabis product, a
lower-potency hemp edible, a hemp-derived consumer
product, or any other product containing an artificially derived
cannabinoid that:

(1) is in a packaging or another container that does not
comply with the relevant packaging requirements in
chapter 152 or 342;
(2) has been removed from the packaging in which it
was sold;
(3) is in packaging that has been opened or the seal has
been broken; or
(4) is in packaging of which the contents have been
partially removed.

A violation of subdivision 2 or 3 is a misdemeanor. Minn. Stat. § 169A.36, subd. 5 (2024).
The effective date of this statute was August 1, 2023. 2023 Minn. Laws ch. 63, art. 4,
§ 30, at 2837.
Thus, if a driver is stopped for an equipment violation, speeding, or other traffic
violation, on or after August 1, 2023, and the officer smells an odor of marijuana emanating
from the driver, that odor may provide reasonable suspicion of additional criminal activity
and a constitutional basis to expand the stop to investigate the suspected marijuana-related
offense.
3
The majority relies primarily on three cases. First, in Torgerson, the supreme court
concluded that the odor of marijuana emanating from a vehicle, without more, is

3 To be clear, there is no indication that the law enforcement officers in this case initially
detected a smell of marijuana specifically emanating from appellant.

CS-4
insufficient to create the requisite probable cause to search a vehicle under the automobile
exception to the warrant requirement. 995 N.W.2d at 174-75. But this case involves
reasonable suspicion, which is a much lower standard than probable cause. See State v.
Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (acknowledging that the “reasonable
suspicion standard is not high” and is “less demanding than probable cause” (quotation
omitted)). And the marijuana laws have now changed since Torgerson.
Second, the supreme court, in State v. Burbach, determined that the “odor of alcohol
coming from an adult passenger during a traffic stop does not, by itself, provide a
reasonable, articulable suspicion of an open -container violation sufficient to permit an
officer to expand the traffic stop by requesting to search the vehicle.” 706 N.W.2d 484,
489 (Minn. 2005) (emphasis added). But the intrusion in Burbach involved searching a
vehicle, whereas the intrusion in this case involves asking a question. Moreo ver, in
Burbach, the odor of alcohol emanated from the passenger. See id. This is readily
distinguishable from a situation where an odor of marijuana emanates from the driver,
particularly in light of the recent changes to the marijuana laws.
Third, in State v. Dawson, this court determined that the “odor of marijuana coming
from the SUV did not provide a reasonable, articulable suspicion of an open-package
violation subject to permit an objective police officer to seize [the defendant].” No. A24-
0573, 2024 WL 4481412, at *9 (Minn. App. Oct. 14, 2024) (emphasis added), rev. denied
(Minn. Feb. 18, 2025). But Dawson is a nonprecedential opinion with no binding authority.
See Minn. R. Civ. App. P. 136.01, subd. 1(c) (“Nonprecedential opinions . . . are not
binding authority except as law of the case, res judicata or collateral estoppel . . . .”).
CS-5
Moreover, like Burbach, the facts in Dawson involved a greater intrusion—a seizure that
involved police ordering the defendant out of the vehicle when there had been no traffic
stop. Dawson, 2024 WL 4481412, at *2. And there is nothing in Dawson indicating that
the smell of marijuana emanated from the driver.
Because Torgerson, Burbach, and Dawson, involve facts and circumstances
significantly different from a situation in which a driver is stopped for a traffic or
equipment violation, and an officer detects an odor of marijuana emanating from the driver
(or the vehicle if the driver is alone), they are not dispositive regarding whether it would
be reasonable for the officer to suspect marijuana use in the motor vehicle and to inquire
about the suspected use. Given the recent changes to the marijuana laws, such an inquiry
would be reasonable. Common sense tells us that the smell of marijuana suggests that the
driver has smoked marijuana in the car. See State v. Taylor, 965 N.W.2d 747, 752 (Minn.
2021) (emphasizing that “an analysis of reasonable suspicion is a ‘common-sense’ and
‘nontechnical’ approach that considers the factual and practical considerations of everyday
life; this standard is not readily, or even usefully, reduced to a neat set of legal rules”
(quotations omitted)). Such use is a crime. See Minn. Stat. § 169A.36, subd. 2.
Nonetheless, at the time of this stop in 2022, the law was different. Consequently,
I concur in the holding of this opinion.