                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1715

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                Mark Christian Anderson,
                                      Appellant.


                                  Filed June 8, 2015
                                       Affirmed
                                   Toussaint, Judge*
                            Dissenting, Cleary, Chief Judge

                              Dakota County District Court
                              File No. 19HA-CR-13-3580

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Brian P. Karalus, St. Paul, Minnesota (for appellant)

         Considered and decided by Cleary, Chief Judge; Chutich, Judge; and Toussaint,

Judge.




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                         UNPUBLISHED OPINION

TOUSSAINT, Judge

       Appellant Mark Anderson appeals from his conviction of fifth-degree possession

of a controlled substance, asserting that the court erred by denying his motion to suppress

evidence found in a search incident to his arrest. Because we conclude that the officers’

observations constituted probable cause to arrest Anderson, we affirm.

                                     DECISION

       The United States and Minnesota Constitutions guarantee individuals the right to

be free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const.

art. I, § 10.   Warrantless searches are presumed unreasonable unless an established

exception applies. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009).

One such exception is a search incident to a lawful arrest. Id. A warrantless arrest is

lawful if it was supported by probable cause. State v. Williams, 794 N.W.2d 867, 871

(Minn. 2011). Whether there is probable cause for an arrest depends on findings of fact

that this court reviews for clear error, but the existence of probable cause is ultimately a

question of law to be reviewed de novo. State v. Dickey, 827 N.W.2d 792, 796 (Minn.

App. 2013).

       The existence of probable cause is an objective inquiry, which depends on the

facts of each individual case. Williams, 794 N.W.2d at 871. “Probable cause to arrest

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.” Id. (emphasis omitted) (quotation omitted). “The ‘honest and


                                             2
strong suspicion standard’ requires more than mere suspicion, but less than the evidence

required for a conviction.” State v. Koppi, 798 N.W.2d 358, 364 (Minn. 2011) (quotation

marks omitted).

      The totality of the circumstances includes the expertise and experience of the

arresting police officers. State v. Skoog, 351 N.W.2d 380, 381 (Minn. App. 1984)

(quotation omitted).   “An officer may rely on his training and experience to draw

inferences and make deductions that might well elude an untrained person.” Id. The

mere fact that an innocent explanation exists to explain the circumstances justifying

probable cause is not adequate to defeat probable cause. State v. Hawkins, 622 N.W.2d

576, 580 (Minn. App. 2001).

      One police officer observed Anderson making two brief hand transactions over a

period of approximately 15 minutes. Another officer saw the second transaction. As a

result, the officers arrested Anderson by parking him in with their cars, taking the key

from his motorcycle, physically restraining him, bringing him to the ground, and

handcuffing him. See State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984) (“An arrest

takes place when officers restrain a suspect’s liberty of movement.”). After arresting

Anderson, the police searched him and recovered illegal drugs.

      Both officers had considerable experience conducting drug surveillance. The

pattern of Anderson’s transactions was consistent with the officers’ experience with

typical drug transactions.    The officers’ observations of the transactions are more

significant than the fact that the officers could not see what was exchanged in the

transactions. See Hawkins, 622 N.W.2d at 578 (holding that probable cause was present


                                           3
even where arresting officer “could not see whether Hawkins had anything in his hand or

whether anything was exchanged.”).

      We conclude that the officers’ observations were adequate to raise an honest and

strong suspicion that Anderson had committed a crime.          Because the officers had

probable cause to arrest Anderson and the search incident to arrest was valid, the district

court did not err by denying Anderson’s motion to suppress evidence.

      Affirmed.




                                            4
CLEARY, Chief Judge (dissenting)

       I respectfully dissent from the decision of the majority.      The probable cause

standard requires an honest and strong suspicion, not a mere suspicion.          While the

observation of two transactions in fifteen minutes might give an experienced officer a

hunch regarding illegal activity, I would hold that this hunch does not rise to the level of

an honest and strong suspicion.

       Precedent confirms that a finding of probable cause requires more than brief

observations of two potentially illegal transactions. In State v. Hawkins, 622 N.W.2d

576, 581 (Minn. App. 2001), this court concluded there was probable cause where

officers saw the appellant making several brief hand-to-hand transactions at 1:40 a.m. and

officers also saw the appellant actively attempting to get attention from passing cars. In

State v. Smith, 476 N.W.2d 511, 512 (Minn. 1991), the supreme court concluded that

probable cause was present where officers saw the appellant make at least six brief

transactions over a period of thirty minutes.

       In comparison to Hawkins and Smith, the circumstances surrounding appellant’s

arrest notably lacked other typical indicators of illegal activity, and the officers’

observations were relatively brief. Here, the transactions did not occur in the middle of

the night and the appellant was not actively soliciting transactions, attempting to get the

attention of others, or acting as a lookout. He was not in a known high-crime area and

not in proximity to known criminals, nor did the officers have any prior knowledge of

appellant. The officers did not observe any illegal substance, any money, or any other

item being exchanged.      The lack of any corroborating circumstances leads me to


                                            D-1
conclude that the officers’ observations of two brief transactions did not constitute

adequate probable cause to justify the seizure, take down, and warrantless arrest of the

appellant. I would reverse the court’s determination that the officers had probable cause

to arrest appellant and grant appellant’s motion to suppress the evidence seized.




                                           D-2
