                        This opinion will be unpublished and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
                                   A14-0357

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Chris William Savage,
                                      Appellant.

                               Filed January 12, 2015
                                      Affirmed
                                    Reyes, Judge

                           Hennepin County District Court
                              File No. 27CR1110530

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

      Considered and decided by Halbrooks, Presiding Judge; Reyes, Judge; and

Crippen, Judge.




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                          UNPUBLISHED OPINION

REYES, Judge

         On appeal from his conviction of second-degree controlled-substance crime,

appellant Chris Savage argues: (1) the evidence police obtained after they stopped

appellant must be suppressed because police did not have articulable, particularized facts

to justify stopping appellant; (2) the evidence that police discovered after they pat

searched appellant should have been suppressed because police did not have a

reasonable, articulable suspicion that appellant was armed and dangerous; and (3) the

evidence police obtained as a result of the drug-detection dog sniff must be suppressed

because police did not have a reasonable, articulable suspicion of drug activity to expand

the scope of appellant’s detention. We affirm.

                                          FACTS

         Around 10:00 p.m. on the night of June 27, 2010, police officers executed a search

warrant at a residence located in Maple Grove. The warrant authorized a search of the

residence and its appurtenant structures based on probable cause that methamphetamine

would be located inside the home.1 While executing the search warrant, officers found “a

white crystalline substance that was consistent with the appearance of

methamphetamine,” along with glass bubble pipes, baggies, and false containers. The

officers also found a false container that looked like a Dr. Pepper pop can but with a

twist-off lid and a hollow inside filled with baggies containing a substance that appeared



1
    The warrant application did not mention Savage or his car.

                                              2
to be methamphetamine residue. The officers testified that these types of false containers

are often used to conceal drugs and cash.

       Around 1:30 a.m., while the officers were securing the residence and carrying

equipment to their unmarked cars, a car pulled into the driveway. Officer Daniel Irish

approached the driver’s side of the car, identified himself as a police officer, and

identified the driver as appellant Chris William Savage. While speaking with Savage,

Officer Irish saw a Dr. Pepper can in the center console that was “kind of beat up and

dirty.” Suspecting the can was another false container containing contraband, Officer

Irish ordered Savage to exit the vehicle. Savage was pat searched for weapons, and the

officers found $912 in cash. A K-9 unit was called to sniff-search the vehicle.

       During the dog sniff, the K-9 alerted at the driver’s door and then again on the

Dr. Pepper can. The officers opened the can and found suspected methamphetamine

inside. The officers then completed a search of the entire car. In the trunk, they found a

WD-40 can with a screw-off bottom that contained a bag of “similar crystalline substance

that appeared to be methamphetamine.” Savage was arrested and charged with second-

degree controlled-substance crime.

       Before trial, Savage filed a motion to suppress evidence seized in the search.

Following an evidentiary hearing, the district court filed an order denying Savage’s

motion to suppress. Savage waived his right to a jury trial and agreed to submit the case

on stipulated evidence pursuant to Minn. R. Crim. P. 26.01, subd. 4. Based on the

stipulated evidence—including police reports, Minnesota Bureau of Criminal

Apprehension test results, and certified copies of Savage’s prior controlled-substance


                                              3
offenses—the district court found Savage guilty. Savage filed this appeal to challenge

the denial of his suppression motion.

                                     DECISION

       When reviewing a district court’s pretrial order on a motion to suppress evidence,

“we review the district court’s factual findings under a clearly erroneous standard and the

district court’s legal determinations de novo.” State v. Jordan, 742 N.W.2d 149, 152

(Minn. 2007). A finding of fact is clearly erroneous if, after reviewing the record, this

court “reaches the firm conviction that a mistake was made.” State v. Kvam, 336 N.W.2d

525, 529 (Minn. 1983). We review de novo a district court’s determination that there

existed a reasonable, articulable suspicion justifying a search. State v. Britton, 604

N.W.2d 84, 87 (Minn. 2000).

I.     Constitutionality of the Seizure

       The Fourth Amendment to the United States Constitution and Article I, section 10

of the Minnesota Constitution guarantee an individual’s right to be free from

unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10.

Evidence resulting from an unreasonable seizure or other constitutional violation usually

must be suppressed. State v. Jackson, 742 N.W.2d 163, 177-78 (Minn. 2007); State v.

Harris, 590 N.W.2d 90, 97 (Minn. 1999). “Warrantless searches and seizures are per se

unreasonable unless they fall under an established exception.” State v. Hummel, 483

N.W.2d 68, 72 (Minn. 1992) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct.

507, 514 (1967)). However, “an officer may, consistent with the Fourth Amendment,

conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion


                                              4
that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,

675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)).

       Savage argues that the police officers unconstitutionally seized him when he

pulled into the driveway because they lacked any reasonable suspicion that he was

engaged in criminal activity. To address this issue, we must determine (1) at what point

Savage was seized and (2) whether the police had a reasonable, articulable suspicion at

the time of the seizure.

       A.     When the Seizure Occurred

       Savage claims that he was seized as soon as he arrived at the premises. He makes

several arguments as to why this seizure was unjustified, arguing that the search of the

residence was already completed by the time he arrived, stating that proximity to a crime

alone cannot justify a seizure, and pointing to the officers’ own testimony that they did

not think Savage had done anything to indicate criminal activity when he first arrived.

       Savage’s arguments rest on an improper assumption—that he was seized

immediately upon arriving on the scene. Not all contacts between police and an

individual constitute a seizure of the individual. In re Welfare of E.D.J., 502 N.W.2d

779, 781 (Minn. 1993) (citation omitted). Instead, a seizure occurs 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); see State v. Lopez, 698

N.W.2d 18, 21 (Minn. App. 2005) (stating that “[i]n determining whether a seizure has

occurred, the court determines whether a police officer’s actions would lead a reasonable


                                             5
person under the same circumstances to believe that she was not free to leave”). In

adopting this standard, the Minnesota Supreme Court articulated a number of factors that

might illustrate when a seizure has taken place: “the threatening presence of several

officers, the display of a weapon by an officer, some physical touching of the person of

the citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.” E.D.J., 502 N.W.2d at 781.

       It is undisputed that Savage entered the driveway voluntarily. That the officers

simply approached Savage upon his arrival does not automatically raise the level of the

encounter to a seizure. Generally, “the mere act of approaching a person who is standing

on a public street or sitting in a car that is parked and asking questions is not a ‘seizure.’”

E.D.J., 502 N.W.2d at 782. Here, the officers simply approached Savage, identified

themselves as police, and asked for identification. While there were multiple officers at

the scene, there was no evidence of threatening conduct or the display of a weapon.

Savage was never physically touched and nothing indicates that the officers used a tone

implying that his compliance was compulsory.

       While the initial conversation did not constitute a seizure, Savage was certainly

seized once he was told to get out of the car. E.D.J., 502 N.W.2d at 782 (concluding that

a seizure occurred when police directed E.D.J. to stop). At that moment, a reasonable

person would not have believed that that he was “free to disregard the police questions

nor free to terminate the encounter.” Cripps, 533 N.W.2d at 391.




                                               6
       B.     Whether the Seizure was Justified

       A “police officer . . . [may] stop and temporarily seize a person to investigate that

person for criminal wrongdoing if the officer reasonably suspects that person of criminal

activity.” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quotation omitted). An

appellate court “review[s] de novo a district court’s determination of reasonable

suspicion of illegal activity.” State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012).

       “The reasonable-suspicion standard is not high,” Diede, 795 N.W.2d at 843

(quotation omitted), and is “less demanding than probable cause or a preponderance of

the evidence,” Smith, 814 N.W.2d at 352 (quotation omitted). But “it still requires at

least a minimal level of objective justification.” Id. (quotation omitted). “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.” Id.

(quotations omitted). “To be reasonable, the basis of the officer’s suspicion must satisfy

an objective, totality-of-the-circumstances test,” which “ask[s] whether the facts available

to the officer at the moment of the seizure would warrant a man of reasonable caution in

the belief that the action taken was appropriate.” Id. at 351–52 (quotations omitted).

       The district court found that Officer Irish was justified in ordering Savage out of

the vehicle because he had observed a beat up and dirty Dr. Pepper can that appeared to

have a false bottom in Savage’s center console. Savage contends this finding was clearly

erroneous because Officer Irish’s testimony appears to state that Savage was removed

from the vehicle before the Dr. Pepper can was observed. The testimony Savage relies

on is as follows:


                                              7
              Q:     Okay. And what happened while you were speaking
                     with him?
              A:     I identified him, and eventually I asked him to get out
                     of the vehicle.
              Q:     For what purpose?
              A:     Just to speak with him further. And then as I was
                     initially talking to him, I observed a pop can that was
                     sitting in the center console that looked suspicious to
                     me.

From this specific portion of testimony, it appears Officer Irish observed the pop can

while he was initially talking to Savage and not after Savage got out of the car. The

remaining portions of Officer Irish’s testimony support this reading. Two questions after

Officer Irish gave the above testimony, the following testimony was given:

              Q:     What happened after you observed that pop can?
              A:     Well, I guess I had the defendant exit the vehicle. . . .

And on re-direct:

              Q:     Before you asked Mr. Savage to leave the vehicle, had
                     you already seen the pop can in the vehicle?
              A:     Yes.

And again on re-cross:

              Q:     When you opened the door and ordered him out of
                     [the] vehicle?
              A:     No, I saw it before that, sir.

This testimony makes clear that Officer Irish observed the pop can prior to removing

Savage from the vehicle. Thus, the district court’s finding of fact was not clearly

erroneous, and Savage’s contentions to the contrary are based on a misinterpretation of

the record.




                                              8
       The observation of a suspected false container justified Officer Irish’s

investigatory seizure. Police officers may rely on their experience and training, and “may

draw inferences and deductions that might elude an untrained person.” Cripps, 533

N.W.2d at 391. Officer Irish testified that the can looked suspicious because of its poor

condition and “from [his] training and experience while working [in] narcotics, [he’s]

learned that there’s a lot of hidden compartment devices and [he’s] run across numerous

ones that have been pop cans and bottles.” Officer Irish further testified that “[m]ost

people that have a pop can in their center console, it’s either freshly bought or it doesn’t

look like it was rolled down the street.”

       Additionally, the collective knowledge of the officers on the scene may be pooled

when determining reasonable suspicion. See In re Welfare of G. (NMN) M., 542 N.W.2d

54, 57 (Minn. App. 1996) (“[T]he grounds for making [an investigative] stop can be

based on the collective knowledge of all investigating officers.”), aff’d, 560 N.W.2d 687

(Minn. 1997). Another officer testified that he was on the passenger side of the vehicle

when Officer Irish began his initial conversation with Savage. This officer immediately

saw the Dr. Pepper can in the center console and stated that it looked identical to the

Dr. Pepper can from the residence. A third officer was in the driveway nearby during the

initial conversation and testified that he heard Savage say that he was at the residence to

“see a friend.” At this point, the officers had collectively witnessed Savage voluntarily

pull into the driveway of a house where narcotics had just been found, heard him say he

was there to see a friend, and observed a suspicious-looking Dr. Pepper can that looked

identical to a Dr. Pepper can just found in the residence that had a false lid and


                                              9
methamphetamine inside. Based on this knowledge, the officers had specific, articulable

facts which formed a reasonable basis for suspicion of criminal activity. See Olson v.

Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985) (quotation omitted) (“All that

is required is that [a] stop be not the product of mere whim, caprice, or idle curiosity.”).

Because the standard of reasonable suspicion was met, the stop and seizure was justified.

II.    Constitutionality of the Pat Search

       Savage argues that the evidence discovered after he was pat searched should have

been suppressed because police did not have a reasonable, articulable suspicion that he

was armed and dangerous. To address this issue, we first determine whether the pat

search was unlawful. If unlawful, we then address whether the evidence obtained by the

improper search is inadmissible as “fruit of the poisonous tree.”

       A.     Whether the Search was Unlawful

       A police officer may conduct a limited pat search of a seized person for weapons

on less than probable cause if he can “point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant the intrusion.”

State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (quoting Terry, 392 U.S. at 21, 88

S. Ct. at 1880). Police officers may “stop and frisk a person when (1) they have a

reasonable, articulable suspicion that a suspect might be engaged in criminal activity and

(2) the officer reasonably believes the suspect might be armed and dangerous.” State v.

Flowers, 734 N.W.2d 239, 250 (Minn. 2007) (quoting State v. Dickerson, 481 N.W.2d

840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993)). During the course

of a protective pat search, “an officer is entitled to seize contraband, including drug


                                             10
paraphernalia, found during a pat search if the incriminating character of the contraband

is immediately apparent to the officer such that it gives rise to probable cause for the

seizure.” State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014).

       As previously mentioned, there was a reasonable suspicion to believe that Savage

was engaged in criminal activity. Prior to being pat searched, Savage had voluntarily

pulled into the driveway of a house where drugs had just been found, and police observed

a pop can similar to one that had just been found to contain methamphetamine. While the

totality of these circumstances is certainly indicative of criminal activity, there is little to

suggest that Savage was armed and dangerous, which, under Flowers, is necessary to

justify a pat search. See Flowers, 734 N.W.2d at 250. Accordingly, the pat search was

not justified.2

       B.         Whether the Evidence Obtained Qualifies as “Fruit of the Poisonous
                  Tree”

       Savage appears to argue that the methamphetamine subsequently found in the car

should have been suppressed as the result of the improper pat search. “[E]vidence

discovered by exploiting previous illegal conduct is inadmissible.” State v. Olson, 634


2
  In State v. Payne, the Minnesota Supreme Court recognized that there are certain cases
where the right to pat search becomes automatic. 406 N.W.2d 511, 513 (Minn. 1987).
The supreme court adopted Justice Harlan’s concurring opinion in Terry, which “makes
explicit what is implicit in the majority opinion, specifically that, as Justice Harlan puts
it, ‘the right to frisk must be immediate and automatic if the reason for the stop is, as
here, an articulable suspicion of a crime of violence.’” Id. (quotation omitted). Examples
of crimes of violence in which an offender would likely be armed include “robbery,
burglary, rape, assault with weapons, homicide, and dealing in large quantities of
narcotics.” Id. (quotation omitted). Because these crimes are dissimilar to the case at
hand—at most, all the police saw was a pop can potentially containing a limited amount
of drugs—the right to pat search did not become automatic.

                                               11
N.W.2d 224, 229 (Minn. App. 2001) (citing Wong Sun v. United States, 371 U.S. 471,

488, 83 S. Ct. 407, 417 (1963)), review denied (Minn. Dec. 11, 2001). Such evidence is

“fruit of the poisonous tree” and will only be admissible if the state proves that it was

“obtained by means sufficiently distinguishable to be purged of the primary taint.” Id.

(quoting Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417).

       The eventual discovery of the methamphetamine in Savage’s vehicle occurred

independent from the improper pat search. The doctrine of inevitable discovery permits

admission of evidence obtained as a result of illegal police conduct if “the police would

have obtained the evidence if no misconduct had taken place.” Harris, 590 N.W.2d at

105 (quotation omitted). Here, the evidence obtained directly as a result of the pat search

was $912 cash. Even if that evidence was completely disregarded, the officers still would

have had “reasonable, articulable suspicion of drug-related criminal activity” sufficient

enough to conduct a dog sniff. See State v. Wiegand, 645 N.W.2d 125, 137 (Minn.

2002). The officers had enough reasonable suspicion of criminal activity to ask Savage

to step out of his vehicle.3 As will be discussed further, that reasonable suspicion also

justified performing a dog sniff on the vehicle, which led to a positive alert, which led to

the discovery of drugs in the pop can, which led to the more expansive search of the

vehicle. The $912 obtained from the improper pat search hardly enters into the equation

and has no effect if excluded. Notably, it was the dog sniff, not the $912, which led to


3
 We note that for safety reasons, the officers did not need reasonable suspicion prior to
asking Savage to step out of the vehicle. State v. Askerooth, 681 N.W.2d 353, 374
(Minn. 2004) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S. Ct. 330, 333
n.6 (1977)). Nevertheless, we hold that reasonable suspicion existed at that point.

                                             12
the discovery of the methamphetamine. If the pat search constituted a “poisonous tree”

then its only real “fruit” was the $912, not the drugs with which Savage was eventually

charged with possessing. Because a reasonable suspicion existed independent of the

result of the pat search, the dog sniff and the eventual discovery of the drugs would have

inevitably occurred. See Harris, 590 N.W.2d at 105. Thus, the doctrine of inevitable

discovery applies, and the drug evidence is not “fruit of the poisonous tree.”

III.   Constitutionality of the Dog Sniff

       Both the state and federal constitutions require an officer to have a “reasonable,

articulable suspicion of drug-related criminal activity” in order to conduct a narcotics-

detection dog sniff around the exterior of a motor vehicle located in a public place. See

Wiegand, 645 N.W.2d at 132, 137. The supreme court has also held that “a dog sniff is

an unreasonable search unless police have at least reasonable, articulable suspicion of

criminal activity before conducting it.” State v. Carter, 697 N.W.2d 199, 202 (Minn.

2005). As previously stated, the standard of reasonable, articulable suspicion is lower

than that of probable cause. Smith, 814 N.W.2d at 352. But, while the requisite showing

to meet the standard is “not high,” Diede, 795 N.W.2d at 843 (quotation omitted), drug-

detection dogs cannot be used “at random and without reason.” Carter, 697 N.W.2d at

211 (quotation omitted).

       Savage argues that the dog sniff was motivated by nothing more than mere whim,

caprice, or idle curiosity. See Wiegand, 645 N.W.2d at 134. He contends that pop cans

are ubiquitous and that seeing one, even one in poor condition, cannot form the sole basis

for reasonable suspicion. While this may be a correct assertion, it is a gross


                                             13
mischaracterization of the officers’ observations. The officers did not base the dog sniff

on the simple fact that the can was “beat up.” Rather, the officers’ collective knowledge

indicated that: (1) the can appeared to be the type containing a false lid which, based on

their experience, is commonly used to store drugs; (2) the can looked identical to a

Dr. Pepper can they had just found in the searched home that did have a false lid and

methamphetamine inside; and (3) Savage was at the residence to “see a friend.” These

factors show that the dog sniff was not based on merely a hunch, but rather a reasonable,

articulable suspicion of criminal activity. See State v. Baumann, 759 N.W.2d 237, 241

(Minn. App. 2009) (acknowledging “the low threshold the courts have set for reasonable

suspicion,” and concluded that “the information [the Officer] relied upon as the basis for

his suspicion was ‘something more’ than an unarticulated hunch and that he was able to

point to ‘something’ that ‘objectively’ supported his suspicion”), review denied (Minn.

Mar. 31, 2009); see also State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998)

(concluding that even seemingly innocent activity can form the basis for reasonable

suspicion). Accordingly, the dog sniff did not constitute an unlawful search.

       The automobile exception permits the warrantless search of a vehicle if the police

have probable cause to believe that the vehicle contains evidence of contraband.

Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014 (1999). Probable cause

exists when, looking at the totality of the circumstances, “there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,

462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983). A drug-detecting dog alerting to a

vehicle can be enough to establish probable cause to search the vehicle. State v.


                                              14
Pederson-Maxwell, 619 N.W.2d 777, 781 (Minn. App. 2000). The positive alert, when

combined with the officers’ collective knowledge of the circumstances, was enough to

establish probable cause to believe that the Dr. Pepper can in Savage’s center console

contained drugs. State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997) (applying the

collective knowledge approach to the probable cause determination). Because the

officers had probable cause to believe the pop can contained drugs, the officers were

justified in performing a search of the entirety of Savage’s vehicle. State v. Bigelow, 451

N.W.2d 311, 311 (Minn. 1990) (holding that “if the police have probable cause to search

a motor vehicle for drugs or other contraband, they may search every part of the vehicle

and its contents which may conceal the object of the search”). Thus, because the search

of Savage’s vehicle was justified, the district court did not err in denying the motion to

suppress the evidence obtained thereafter.

       Affirmed.




                                             15
