                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-2251

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Dana James McEachern,
                                       Appellant.

                                Filed December 22, 2014
                                        Affirm
                                      Ross, Judge

                            Crow Wing County District Court
                                File No. 18-CR-12-3266

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

Donald F. Ryan, Crow Wing County Attorney, David Hermerding, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Charles L. Hawkins, Minneapolis, Minnesota (for appellant)


         Considered and decided by Chutich, Presiding Judge; Halbrooks, Judge; and Ross,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         Police stopped Dana McEachern for speeding and noticed an alcoholic-beverage

bottle cap on the floor of McEachern’s car. Police knew that McEachern was the subject
of a probation restriction prohibiting him from possessing or consuming alcohol or

controlled substances and obligating him to submit to searches. Police searched the car

and found drugs and alcohol, which led to criminal charges for and conviction of

possession of controlled substances, first- and second-degree sale of controlled

substances, possession of an open bottle, possession of drug paraphernalia, and traffic

offenses. McEachern appeals, arguing that the pre-arrest detention, the searches, and the

post-arrest questioning violated his constitutional rights. We affirm because the officer’s

reasonable, articulable suspicion justified the search in light of McEachern’s probation

conditions, and McEachern’s Miranda argument has no factual support.

                                         FACTS

      Officer Josef Garcia stopped Dana McEachern’s pick-up truck for speeding on an

evening in July 2012. McEachern was alone in the car when Officer Garcia approached.

The officer asked for McEachern’s license and proof of insurance. McEachern produced

his license but not proof of insurance. Officer Garcia conducted a records check. The

check informed the officer that McEachern was on probation for a 2011 controlled

substance conviction and that he was prohibited from possessing or consuming alcohol or

controlled substances. It also informed Officer Garcia that the probation terms required

McEachern to submit to searches. And he learned that McEachern had recently been

charged with being an ineligible person possessing a firearm.

      Officer Garcia decided to cite McEachern for failing to provide proof of insurance

and to warn him for speeding. He reapproached McEachern’s truck and asked him to step




                                            2
out to discuss the citation process. When McEachern opened his door, Officer Garcia saw

a Mike’s Hard Lemonade bottle cap on the floor in front of the driver’s seat.

      Officer Garcia asked McEachern if he was carrying any weapon. McEachern said

no. McEachern put his hands in his pockets as he walked toward the squad car. The

officer asked McEachern to remove his hands from his pockets because he “figured

[McEachern] might be in possession of a weapon,” and then he conducted a pat search of

McEachern’s person. During the pat search, Officer Garcia removed a folding knife from

one of McEachern’s front pockets and a hard, cylinder-shaped container from the other.

Officer Garcia then handcuffed McEachern.

      The officer examined the container and found two small pills inside. He could not

immediately identify the pills, but he later learned that they were Levitra (an erectile-

dysfunction medication). The container did not display any prescription information. An

officer with a police dog arrived and conducted a dog-sniff for drugs inside and outside

McEachern’s pick-up truck. The dog did not indicate the presence of any drugs.

      Officer Garcia then searched the truck. He was more perceptive than the “drug-

detecting” dog. On the front passenger seat he found a backpack that contained a glass

marijuana pipe, a small plastic bag holding a substance resembling hashish, and a packet

of synthetic marijuana. Behind the front seat, he found an open bottle of Jagermeister and

several bottles of Mike’s Hard Lemonade in two coolers. He also found two other bottles

of liquor along with hallucinogenic mushrooms, a clear plastic bag of what appeared to

be methamphetamine, and medicine bottles containing tablets later identified as Vicodin.




                                            3
      Officer Garcia arrested McEachern and took him to the law enforcement center.

He read McEachern his Miranda rights, and McEachern spoke with him. McEachern

answered questions about where he lived, where he was going, and what route he was

taking. But he refused to answer questions about what the officer found inside his truck.

      The state charged McEachern with three counts of possession of controlled

substances, first- and second-degree sale of controlled substances, possession of an open

bottle, possession of drug paraphernalia, and two traffic offenses. McEachern challenged

the admissibility of the evidence seized during the vehicle and personal searches as well

as the admissibility of statements he made during questioning. The district court denied

McEachern’s motions to suppress.

      McEachern and the state agreed to a court trial on stipulated facts. The district

court found McEachern guilty on all counts. McEachern appeals.

                                     DECISION

      McEachern appeals the district court’s order denying his motions to suppress

evidence found during the searches and the statements he made to Officer Garcia during

questioning. He contends that all evidence seized must be suppressed because of the

warrantless nature of the searches and because he was detained for an unlawful period

before the arrest. He also argues that any post-Miranda statements he made to Officer

Garcia should have been suppressed under his Fifth Amendment right to remain silent.

The facts are not disputed, so we review the challenged legal determinations de novo. In

re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997).




                                            4
                                              I

       McEachern maintains that the officer unconstitutionally searched him and his

truck. Both the federal and state constitutions guarantee individuals the right not to be

subjected to “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const.

art. I, § 10. A warrantless search is unreasonable unless it fits a recognized exception.

State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). The searches here were

warrantless, so we consider whether an exception applies.

       The district court reasoned that the warrantless truck search was a reasonable

expansion of an undisputedly valid traffic stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct.

1868 (1968), and State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004). The state

explains that the vehicle search was justified because the valid stop led to one-on-one

contact between the officer and McEachern, which led to a pat search for the officer’s

safety, which uncovered the pill container, which justified the truck search. The flaw in

the state’s rationale is that an officer conducting a pat search for officer safety has no

constitutional authority to reach into a driver’s pocket to retrieve an item unless the plain

feel of the item informs the officer that it is a weapon or contraband. Minnesota v.

Dickerson, 508 U.S. 366, 375–76, 113 S. Ct. 2130, 2137 (1993). The state gives no

persuasive justification supporting the officer’s decision to reach into Garcia’s pocket to

retrieve what the officer perceived to be (and later found to be) a small cylindrical pill

container. A pill container cannot reasonably be confused with a dangerous weapon and

the officer had no reason to suppose that it contained illegal drugs. We do not decide the

case on the state’s theory.


                                             5
       A different constitutional ground justifies the vehicle search and the collection of

evidence. McEachern had agreed to consent to random searches as part of his probation,

and this agreement was known to Officer Garcia. McEachern contends that this search

condition authorized searches only by probation officers because his agreement was with

the probation office, not with police. The contention does not persuade us. Police

frequently accompany probation officers and conduct probation searches with probation

officers. Officer Garcia testified without contradiction that the search condition did not

specify that McEachern must submit to probation searches—only that he must submit to

searches. We have no reason to construe the agreement more restrictively than its

language states or reasonably implies.

       Because a probationer who has agreed to a search condition has “significantly

diminished privacy interests,” the Fourth Amendment requires only a reasonable

suspicion of criminal activity to conduct a search. United States v. Knights, 534 U.S. 112,

119–21, 122 S. Ct. 587, 592–93 (2001); see also State v. Anderson, 733 N.W.2d 128, 140

(Minn. 2007). We therefore must decide whether Officer Garcia had reasonable suspicion

of illegal activity to search McEachern’s truck.

       We have no difficulty holding that reasonable suspicion of illegal activity justified

the vehicle search based on the following circumstances. McEachern was prohibited from

possessing alcohol. Officer Garcia saw a bottle cap of an alcoholic beverage in plain view

on the driver’s side floor as Garcia stepped from the truck, and an officer’s asking a

driver to step out of a stopped vehicle is not a constitutionally significant event.

Askerooth, 681 N.W.2d at 367 (citing Pennsylvania v. Mimms, 434 U.S. 106, 111, 98


                                             6
S. Ct. 330, 333 (1977)). A reasonable officer would suspect that the bottle cap on a car’s

floor has a matching bottle somewhere inside the car, and the alcoholic contents of the

bottle, if found, would indicate that McEachern had violated both the terms of his

probation and the open-bottle law. See Minn. Stat. § 169A.35, subd. 3 (2012). Officer

Garcia was therefore constitutionally permitted to search anywhere in the truck where he

might reasonably find the matching bottle. See State v. Bigelow, 451 N.W.2d 311, 312–

13 (Minn. 1990).

      At oral argument, McEachern’s attorney argued for different reasoning: “[W]hen I

was a kid, I used to put the bottle caps on the heel of my shoe and we used to [tap] dance

with them.” He alternatively insisted that it was reasonable to assume that McEachern did

not open the bottle in the car and drop the cap on the floor, but rather, while he was

walking about, he inadvertently stepped on the cap that had been left on the ground by a

stranger, and, not knowing the cap had affixed to his shoe, he stepped into the truck

where the cap fell to the floor. These explanations are underwhelming. The record does

not indicate that McEachern shared his attorney’s tap dancing tendencies. And we also

think the stuck-to-the-shoe theory is far fetched. But even assuming these theories are

reasonable, their reasonableness does not render our theory unreasonable. The issue is

whether a reasonable officer would suspect that the bottle cap on the truck floor may lead

to a matching bottle elsewhere in the truck. We hold that he would.

      We need not consider the constitutionality of the pat-search of McEachern’s

person because the knife and pill bottle found in his pockets would have inevitably been

discovered during a search incident to McEachern’s arrest for the various drugs in his


                                            7
truck. See State v. Lican, 659 N.W.2d 243, 254 (Minn. 2003) (discussing the proper

application of the inevitable discovery exception). Because the items discovered during

the pat search were not necessary to Officer Garcia’s reasonable suspicion to search the

truck for an open liquor bottle, the truck search is valid even if the pat search is not.

                                              II

       McEachern argues that his detention during the stop was unconstitutionally long,

but we reject the argument because it lacks factual support. Police may detain a suspect

so long as reasonable suspicion for the detention exists and police investigate their

reasonable suspicions diligently and reasonably. State v. Moffatt, 450 N.W.2d 116, 119

(Minn. 1990). The record does not suggest any unreasonable delay between the time the

officer stopped McEachern and the time he developed reasonable suspicion to search his

truck. The record also does not suggest that the truck search was lengthy.

                                              III

       McEachern contends that his post-arrest statements to Officer Garcia should be

suppressed. Officer Garcia advised McEachern of his Miranda rights before questioning

him. McEachern identifies no facts that suggest that his waiver of his right to remain

silent was not knowing, intelligent, and voluntary. See State v. Jones, 566 N.W.2d 317,

322 (Minn. 1997). The officer stopped questioning McEachern when McEachern stopped

answering questions. McEachern gives us no reason to reverse the district court’s

decision to admit his statements into evidence.

       Affirmed.




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