                         This opinion will be unpublished and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
                                    A14-2017

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Erik Edward Malmquist,
                                       Appellant.

                               Filed November 23, 2015
                                      Affirmed
                                    Hooten, Judge

                             Meeker County District Court
                               File Nos. 47-CR-14-91

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

Brandi Schiefelbein, Meeker County Attorney, Litchfield, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leslie J. Rosenberg, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Hooten, Presiding Judge; Worke, Judge; and

Kalitowski, Judge.




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                         UNPUBLISHED OPINION

HOOTEN, Judge

       Appellant challenges his conviction of fifth-degree possession of a controlled

substance, asserting that the district court erred by denying his motion to suppress

evidence found during a search of his vehicle. We affirm.

                                          FACTS

       On the afternoon of February 6, 2014, Meeker County Deputy Sheriffs Ryan

Schutz and William Hudson received a report of a truck that had been in a ditch with its

engine running for a length of time. After approaching the vehicle and observing that the

driver, appellant Erik Edward Malmquist, appeared asleep, the deputies awoke him and

noticed that he exhibited signs of impairment. The deputies administered field sobriety

tests and a preliminary breath test. Based on the results of these tests, the deputies began

to question Malmquist regarding the presence of drugs in his vehicle. After Malmquist

made several incriminating statements, Deputy Schutz searched the vehicle and located

straws and baggies containing about two grams of methamphetamine. A later inventory

search of Malmquist’s vehicle also “yielded 10 [o]xycodone pills, 7 [h]ydrocodone pills,

an Oxycontin pill, a water bong, two pipes with a heavy methamphetamine coating, a

newer pipe containing residue, a scale containing a crystal-like substance, straws, rubber

bands, Q-tips, a razor blade, a butane lighter, and butane fluid.”

       Malmquist was charged with two counts of fifth-degree possession of a controlled

substance and one count of possession of drug paraphernalia. At the omnibus hearing

held on April 9, 2014, Malmquist sought to suppress the contraband found in his vehicle


                                              2
as fruits of an illegal search on the grounds that they were found as a result of an

unlawfully expanded stop and illegal search. The district court denied Malmquist’s

motion to suppress this evidence, concluding that the deputies had “probable cause to

search the truck for the drugs or paraphernalia that [Malmquist] had referenced” in his

conversation with the deputies.

       Pursuant to Minn. R. Crim. P. 26.01, subd. 4, Malmquist waived his right to trial

and stipulated to the state’s case in order to obtain appellate review of the district court’s

pretrial ruling.   The district court found Malmquist guilty of all three counts and

sentenced him on one count of fifth-degree possession to the presumptive guidelines

sentence of 13 months, stayed for five years. This appeal followed.

                                      DECISION

       Malmquist requests that we reverse the district court’s denial of his motion to

suppress the evidence obtained as the result of an illegal search and dismiss the charges

against him. In support of this request, Malmquist argues that the deputies unlawfully

expanded the scope of the stop. Additionally, Malmquist alleges that any statements

made by him immediately prior to the search were the product of coercion brought about

by the circumstances of the investigation. Malmquist claims that the statements were

given as a result of the deputies making him stand out in the cold for an extended period

of time without adequate warm clothing. Finally, Malmquist argues that the district court

erred by determining that the deputies had probable cause to search his vehicle without

his consent.




                                              3
       Based upon this record, which includes a squad camera and an audio recording of

the encounter between the deputies and Malmquist at the scene of the accident, we

conclude that the deputies did not unlawfully expand the scope of the stop. Additionally,

we hold that the district court did not err in its conclusion that Malmquist’s statements to

the deputies immediately prior to the search were voluntary. Finally, we hold that the

district court did not err by denying Malmquist’s motion to suppress and determining that

the deputies had probable cause to search the vehicle based upon the totality of the

circumstances.

       When reviewing a pretrial order on a motion to suppress, we review the factual

findings for clear error and the legal determinations de novo. State v. Ortega, 770

N.W.2d 145, 149 (Minn. 2009). The United States Constitution and the Minnesota

Constitution guarantee individuals the right to be free from unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. 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). Not all

contacts between police and a citizen constitute a seizure. In re Welfare of E.D.J., 502

N.W.2d 779, 781 (Minn. 1993). For example, when an officer activates the squad car’s

emergency lights and pulls up behind a vehicle already parked on a rural highway

shoulder at night, that “conduct would not have communicated to a reasonable person . . .

that the officer was attempting to seize the person. A reasonable person would have

assumed that the officer was not doing anything other than checking to see what was


                                             4
going on and to offer help if needed.” State v. Hanson, 504 N.W.2d 219, 219–220

(Minn. 1993).

       Here, as was the case in in Hanson, the deputies did not seize Malmquist by

approaching his vehicle to check on his welfare. The record reveals that on a sunny

February afternoon, the deputies were called by dispatch regarding a red truck in the

ditch. Without activating their lights or sirens, they immediately responded and observed

the vehicle, with its engine still running, in the ditch with front-end damage. Upon

further investigation, they observed that the driver, Malmquist, appeared to be sleeping or

unconscious and, after waking him up, noticed that his eyes were bloodshot and that his

speech was slow and slurred. Upon making these observations, the deputies suspected

that Malmquist was under the influence of either drugs or alcohol. While the initial

conduct of the deputies was permissible as a welfare check, the welfare check ended

when the deputies were able to speak with Malmquist and ascertain his well-being.

       But, by that time, the deputies had reasonable suspicion that Malmquist was under

the influence of alcohol or drugs. A police officer may initiate a brief investigative stop

when the officer has reasonable suspicion of criminal activity. State v. Richardson, 622

N.W.2d 823, 825 (Minn. 2001). Because the deputies observed indicia of impairment

after speaking with Malmquist, they properly initiated an investigative stop and had

Malmquist perform field sobriety tests to investigate his impairment.

       When Deputy Schutz had Malmquist perform field sobriety tests on the roadway

in front of the squad car about four minutes into the encounter, Malmquist performed

poorly.   Deputy Hudson questioned Malmquist regarding drug use, and Malmquist


                                            5
responded that he had not “snorted” that day, but had used drugs the previous day.

According to the squad video and audio, Deputy Schutz administered a preliminary

breath test approximately 12 minutes into the encounter. The deputies testified that even

though the preliminary breath test was negative for alcohol use, they suspected that

Malmquist was under the influence of drugs because of the signs of impairment he

exhibited.   Deputy Hudson, who had experience dealing with defendants who used

methamphetamine and had had prior drug-related encounters with Malmquist, believed

that Malmquist was high on methamphetamine and was exhibiting a “crash” period as the

effects of the drug wore off. After Malmquist took the preliminary breath test, Deputy

Hudson advised him that he was not under arrest, but that he believed Malmquist was

“high.”

      Next, the deputies expanded the stop beyond the investigation of Malmquist’s

impairment by questioning Malmquist about the presence of drugs in his vehicle. “[T]he

scope and duration of a traffic stop investigation must be limited to the justification for

the stop.” State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003). An intrusion not directly

tied to the initial reason for the stop must be supported by reasonable suspicion of other

illegal activity. State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012). Here, because

Malmquist admitted to using drugs the previous day and exhibited signs of impairment

that suggested recent drug use, the deputies had reasonable suspicion to suspect that

Malmquist’s vehicle might contain drugs or drug paraphernalia.

      According to the video, Deputy Hudson expanded the stop and began to question

Malmquist about the presence of drugs and drug paraphernalia in his vehicle


                                            6
approximately 14 minutes into the encounter. According to Deputy Hudson, Malmquist

laughed when asked if there were pounds of drugs in his vehicle and, in response to being

asked whether three grams were in his vehicle, said, “[N]ot three grams.” About 15

minutes into the encounter, Malmquist indicated that a small amount of drugs in a baggie

was located near the driver’s seat. At that point, Deputy Hudson directed Deputy Schutz

to search the truck for drugs.

       Malmquist argues that his statements to police were involuntary because they were

induced by coercion. We review the district court’s determination of whether a statement

was voluntary de novo, but we accept the underlying factual determinations of the district

court unless they are clearly erroneous. State v. Zabawa, 787 N.W.2d 177, 182 (Minn.

2010). “A defendant is deprived of due process of law under the Fourteenth Amendment

when the defendant’s conviction is founded on an involuntary statement.” State v. Riley,

568 N.W.2d 518, 525 (Minn. 1997).          In determining voluntariness, the question is

“whether the defendant’s will was overborne” when he gave the statement. Zabawa, 787

N.W.2d at 182. We consider the totality of the circumstances when determining whether

a statement was voluntary. Id.

       The evidence does not suggest that Malmquist was coerced into making

involuntary statements.     The district court found that Malmquist “gave voluntary

responses to Deputy Hudson’s questions” and that “[t]he evidence does not show that

deputies improperly coerced or pressured [Malmquist].”         Consistent with the squad

video, the deputies testified that they did not have their guns out and that they spoke with




                                             7
Malmquist in a conversational tone. As the district court noted, the deputies’ testimony is

supported by the squad video.

       Malmquist does not refute any of these assertions, but argues that the investigation

was inordinately long, with the deputies “needlessly keeping” him in “bitterly cold

weather for an excessive amount of time” without suitable clothing. While Malmquist

testified that he was outside for “a little over an hour,” the district court rejected this

contention, finding, upon reviewing the video of the incident, that Malmquist was

arrested approximately 20 minutes into the encounter. Moreover, the district court found

that the video shows that after his field sobriety and preliminary breath tests, Malmquist

admitted to the presence of drugs in the truck after only a couple of minutes of

questioning by Deputy Hudson. The district court also found that the video shows

Malmquist wearing appropriate winter clothing in the form of a winter jacket. Based

upon this record and our review of the video and audio, the district court properly

determined that Malmquist’s incriminating statements were not coerced or given under

duress.

       The district court concluded that “[Malmquist’s] voluntary responses to questions

provided deputies with probable cause to search [Malmquist’s] truck for drugs and

paraphernalia.” Malmquist contends that the district court erred in holding that the

deputies had probable cause to search his vehicle.

       Relying on Malmquist’s statements as creating probable cause, Deputy Schutz

searched Malmquist’s vehicle. After an approximate three-minute search, Deputy Schutz

located a hard plastic cigarette case containing straws and two baggies containing a


                                            8
crystal-like substance appearing to be methamphetamine. The district court found that

the video showed Deputy Schutz returning after about three minutes to the front area of

the squad, where Deputy Hudson and Malmquist had been standing and talking and,

approximately 20 minutes into the encounter, Malmquist was arrested for possession of

drugs and drug paraphernalia.

      Warrantless searches are per se unreasonable, subject only to a few established

exceptions. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009). “Due to

the exigent circumstances presented by automobiles, there is a well-established exception

to the search warrant requirement for cases involving transportation of contraband goods

in motor vehicles.” State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005) (quotation

omitted). Under the automobile exception, police may conduct a warrantless search

when they have probable cause to believe that the vehicle contains contraband. State v.

Flowers, 734 N.W.2d 239, 248 (Minn. 2007). “Probable cause is a practical, common

sense decision whether, given all the circumstances set forth . . . [,] there is a fair

probability that contraband or evidence of a crime will be found in a particular place.”

State v. Demry, 605 N.W.2d 106, 108 (Minn. App. 2000) (quotation omitted), review

denied (Minn. Mar. 28, 2000).

      Here, the totality of the circumstances indicates that the deputies had probable

cause to search Malmquist’s vehicle for drugs. Malmquist admitted to snorting drugs the

previous evening and, when asked whether there were drugs in his vehicle, answered

evasively before eventually admitting to the presence of drugs and directing the deputies

to them.     Malmquist’s response to the deputies’ questions, coupled with the


                                           9
circumstances of his accident, his bloodshot eyes, his slurred speech, and his poor

performance on the field sobriety tests, establishes that the deputies had probable cause to

search Malmquist’s vehicle for drugs under the automobile exception to the warrant

requirement. Because the deputies did not unlawfully expand the scope of the stop,

Malmquist’s statements were not coerced, and probable cause existed to search

Malmquist’s vehicle, the district court did not err in denying the motion to suppress the

evidence found in Malmquist’s vehicle.

       Affirmed.




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