                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A12-1850

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                   Roosevelt Hunter,
                                      Appellant.

                               Filed December 22, 2014
                   Affirmed in part, reversed in part, and remanded
                                     Smith, Judge

                              Ramsey County District Court
                                File No. 62-CR-10-2526

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

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Katherine M. Conners, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.

                                    SYLLABUS

         A person constructively possesses a controlled substance when the person

knowingly exercises dominion and control over the controlled substance.      It is not

sufficient that the person knowingly exercises dominion and control over the place in

which the substance was found when others had access to that place.
                                      OPINION

SMITH, Judge

       We reverse the district court’s denial of appellant’s petition for postconviction

relief because the state does not demonstrate that the district court’s erroneous jury

instruction was harmless beyond a reasonable doubt, and we remand for a new trial. But

we affirm the district court’s denial of appellant’s motion to suppress evidence because

police officers had reasonable, articulable suspicion to support the seizure of appellant’s

vehicle.

                                         FACTS

       During an evening in March 2010, St. Paul police officers specializing in narcotics

investigations were in a vehicle conducting surveillance in a grocery-store parking lot

known as a location for drug deals. The officers wore blue shirts with the word “police”

written in large yellow letters. About 15 to 20 minutes into the surveillance period, the

officers observed a sport utility vehicle (SUV) with a “loud stereo” and tinted windows

enter the parking lot and park in a location “far away from the rest of the pack of

vehicles” in the lot. The officers observed that the driver was the only occupant of the

vehicle and that he remained in the vehicle after parking it. A few minutes later, a Buick

sedan entered the parking lot and parked next to the SUV. Leaving the sedan running,

the driver and the sole passenger of the sedan exited it and entered the SUV. The officers

later testified that they could see the SUV driver talking with one of the individuals who

had entered the SUV. Based on their observations of the behavior of the persons, the




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officers suspected that a drug transaction was underway, and they decided to approach

the SUV from behind.

       The officers exited their vehicle, and one officer approached the passenger’s side

of the SUV while two others approached the driver’s side. The officers testified that an

officer approaching the driver’s side yelled for the driver to show his hands. The officer

approaching the passenger’s side testified that he looked into the SUV and observed the

driver holding what he believed to be a bag of crack cocaine and money in the area

between the driver and the passenger, and the front-seat passenger holding money in his

hand. The officer described the cocaine he observed as “bigger [than] a golf ball, but not

as big as a baseball.” He testified that the driver and front-seat passenger were facing

each other “in an almost uncomfortable manner.”

       The officer on the passenger side then opened the SUV’s front passenger door. He

testified that he saw the SUV driver, later identified as appellant Roosevelt Hunter, drop

the bag of crack cocaine onto the passenger’s side seat and that the man in the

passenger’s seat then pushed the bag onto the floor.

       The officers arrested the occupants of the SUV. During an inventory search of the

SUV, a police officer found a bag of suspected cocaine, two cellular telephones and a

digital scale.

       The state charged Hunter with second-degree controlled-substance possession.

Hunter moved the district court to suppress all evidence found in his SUV and, after a

hearing, the district court denied the motion. Hunter moved the district court to reopen or




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reconsider its denial of his suppression motion, and although the district court modified

its factual findings, it denied the motion.

          During a jury trial, both officers testified about what they had observed before and

during their approach to Hunter’s SUV. In addition to the officers’ testimony, the jury

received testimony and exhibits indicating that Hunter’s SUV had heavily tinted

windows, which made it difficult to see into the SUV.

          An analyst with the St. Paul Crime Lab (SPCL) testified that she had tested the

substance in the bag and determined that it was cocaine. She testified that her substance-

testing instruments were maintained daily and were working properly when she

determined that the bag contained cocaine. She also described conditions at the SPCL,

testifying that the lab was kept secured so that only lab employees could enter by using

key cards. Hunter’s counsel did not seek to impeach the analyst’s testimony on these

points.

          The state moved the district court for a jury instruction stating that “[c]onstructive

possession exists when an object is not on the person or in his immediate presence but it

is in a place subject to that person’s conscious dominion and control.” Hunter’s counsel

objected and, after hearing argument, the district court granted the state’s motion.

          The jury found Hunter guilty. At the sentencing hearing, Hunter’s attorney stated

that “on the way over here to court today,” he had heard a report of problems at the SPCL

that rendered its testing procedures unreliable. He argued that the report constituted

newly discovered evidence requiring a new trial. The district court denied the motion as




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untimely because it had not been filed within 15 days of the verdict. It sentenced Hunter

to 108 months’ incarceration.

       Hunter petitioned for postconviction relief on July 2, 2013, demanding a new trial

based on his claims that newly discovered evidence of problems at the SPCL undermined

key testimony in his case and constituted a violation as set forth in Brady v. Maryland,

373 U.S. 83, 83 S. Ct. 1194 (1970) and that he received ineffective assistance of trial

counsel.1 During the hearing on November 18, the parties agreed that the district court

should decide Hunter’s ineffective-assistance claim based solely on written submissions.

       The district court also addressed a retest of the cocaine found in Hunter’s SUV.

Hunter’s postconviction counsel stated that she had not yet had an opportunity to consult

with experts, and the district court invited her to submit additional briefing by December

18, 2013. She expressed a desire to require deposition testimony regarding SPCL testing

procedures, and the state agreed to facilitate it. But the state also argued that the district

court could deny the petition without considering SPCL testing problems because Hunter

had presented no evidence that any general SPCL testing problems affected the evidence

in his particular case. Hunter’s counsel pledged to “inundate [the district court] with

paper” in response to its additional-briefing instructions.       But, although the state’s

postconviction counsel indicated to the district court that she had received additional

information from Hunter’s counsel, the record does not contain the information.


1
  Hunter filed a direct appeal on October 16, 2012, but on April 26, 2013, he moved the
court of appeals to stay his appeal and remand for postconviction proceedings to develop
a record regarding his allegations of testing errors at the SPCL. This court granted the
motion on June 4, 2013.

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       On April 1, 2014, the district court denied Hunter’s petition. In the memorandum

accompanying its order, the district court stated that “[t]he parties were given the

opportunity to present witnesses and testimony or make further argument,” but “[b]oth

[Hunter] and [the state] chose to submit the matter on the briefs.” The district court noted

that Hunter had selected a trial strategy of denying that the cocaine belonged to him and

had foregone his opportunity to challenge whether the substance was cocaine in the first

place. Accordingly, the district court ruled, any evidence of testing deficiencies at the

SPCL did not meet the criteria for newly discovered evidence justifying a new trial. The

district court also ruled that, because any evidence of SPCL testing problems would have

been impeaching rather than evidence of actual innocence, it did not justify a new trial.

Lastly, based on the strength of other evidence against Hunter, it concluded that any

evidence of problems at the SPCL would not have changed the outcome of his trial.

                                         ISSUES

I.     Did the district court commit reversible error by providing an erroneous

instruction to the jury on constructive possession?

II.    Did the district court err by failing to suppress the evidence seized from Hunter’s

SUV?

                                       ANALYSIS

                                             I.

       Hunter contends that the district court committed reversible error by granting the

state’s request for a modified jury instruction regarding constructive possession. District

courts are allowed “considerable latitude” in phrasing jury instructions. State v. Baird,


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654 N.W.2d 105, 113 (Minn. 2002).          Accordingly, “[w]e review a district court’s

decision to give a requested jury instruction for an abuse of discretion.” State v. Koppi,

798 N.W.2d 358, 361 (Minn. 2011). A jury instruction is erroneous when it “materially

misstates the law.”   State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).            When

determining whether they are erroneous, “the jury instructions must be reviewed as a

whole.”   State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).           An erroneous jury

instruction merits a new trial when it cannot be determined “beyond a reasonable doubt

that the error had no significant impact on the verdict.” State v. Valtierra, 778 N.W.2d

425, 433 (Minn. 2006) (quotation omitted).

      Hunter highlights the district court’s phrasing—adopted over his objection—of

constructive possession as “when an object is not on the person or in his or her immediate

presence, but is in a place subject to that person’s conscious . . . dominion and control.”

He argues that this instruction misstates the law by diverting the jury’s attention from

whether Hunter exercised dominion and control over the cocaine to whether he merely

exercised dominion and control over his SUV where the cocaine was found. Hunter’s

argument has merit.

      When moving for the challenged jury instruction, the prosecutor cited the supreme

court’s holding in State v. Florine. In Florine, the supreme court held that a jury may

find that a defendant constructively possessed a controlled substance “in a place to which

others had access [and] there is a strong probability (inferable from other evidence) that

defendant was at the time consciously exercising dominion and control over it.” 303

Minn. 103, 105, 226 N.W.2d 609, 611 (1975).            As stated in Florine, the rule is


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ambiguous as to whether the “it” that a defendant must exercise dominion and control

over in order to constructively possess a controlled substance is the place in which the

controlled substance was found or is the controlled substance itself. The most recent

revisions to the Minnesota Jury Instruction Guides (CRIMJIGs) relating to constructive

possession reflect an identical ambiguity. See 10A Minnesota Practice, CRIMJIG 20.04,

20.14 (Supp. 2014). The prosecutor argued that the “it” in Florine referred to the place in

which the controlled substance was found, not the substance itself. The district court

tacitly endorsed the prosecutor’s interpretation of Florine when it gave the prosecutor’s

requested instruction, directing the jury to find constructive possession if it found that

Hunter had exercised dominion and control over the SUV.

       But a close reading of other constructive-possession cases—including some cited

by the prosecutor in his motion—indicates that a defendant must exercise dominion and

control over the substance itself in order to constructively possess it. In State v. LaBarre,

decided before Florine, the supreme court held that “the evidence . . . justified the jury in

finding that [the defendant] exercised knowing dominion and control over and . . . had

immediate and accessible possession of the cocaine, hashish, and LSD found in the front

bedroom.” 292 Minn. 228, 237, 195 N.W.2d 435, 441 (1972) (emphasis added). It was

the defendant’s control of the controlled substances and not the defendant’s control of the

bedroom that constituted constructive possession. In State v. Robinson, the supreme

court described the Florine rule as defining constructive possession to include situations

where the controlled substance was found “in a place where others had access” and “the

defendant was at the time consciously or knowingly exercising dominion and control


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over the substance in question.” 517 N.W.2d 336, 340 (Minn. 1994) (emphasis added).

Similarly, this court applied Florine in State v. Dickey, holding that “[a] police officer has

probable cause to arrest a suspect for constructive possession of a controlled substance

when . . . there is a strong probability that the suspect was exercising or had exercised

dominion or control over the controlled substance.” 827 N.W.2d 792, 796-97 (Minn.

App. 2013) (emphasis added). We therefore hold that the district court’s constructive-

possession jury instruction materially misstated the law.

       The state contends, however, that, because the police officer testified that he saw

Hunter holding a bag of cocaine, this was an actual-possession case, and so any error in

the constructive-possession portion of the district court’s jury instructions was harmless.

It is true that the officer’s testimony would support a finding of actual possession. It is

also true that, if the jury had been properly instructed on constructive possession, the

officer’s testimony that Hunter was holding the drugs could alternatively constitute

circumstantial evidence that he exercised dominion and control over the drugs and

continued to possess them, constructively, after he discarded them. But because the jury

was not properly instructed on constructive possession and competing credible evidence

existed as to whether the officer could have seen Hunter holding the drugs from outside

the car, we have no way of knowing whether the jury found Hunter guilty because it

believed that the officer saw the drugs in Hunter’s hand or whether it instead found him

guilty based on the erroneous constructive-possession jury instruction. Since the

conflicting evidence leaves a reasonable doubt that all jurors believed the officer’s

testimony, we cannot treat the error as harmless. Therefore, Hunter is entitled to a new


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trial. Accordingly, we reverse his conviction and remand for a new trial, consistent with

other holdings in this opinion.

                                             II.

       Hunter also argues, both through counsel and at much greater length in his pro se

supplemental brief, that the district court should have suppressed the evidence seized

from his SUV because the police officers lacked a reasonable suspicion justifying their

approach and seizure. Although we reverse and remand for a new trial, we address this

issue in the interests of judicial economy because it will likely arise again on remand.

See, e.g., State v. Logan, 535 N.W.2d 320, 325 (Minn. 1995).          Before conducting an

investigatory seizure of a person, police officers must have a reasonable, articulable

suspicion of criminal activity. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).

“Reasonable, articulable suspicion must be present at the moment a person is seized.”

State v. Bergerson, 659 N.W.2d 791, 795 (Minn. App. 2003). “We undertake a de novo

review to determine whether a search or seizure is justified by reasonable suspicion . . . .”

State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005). When doing so, we accept the

district court’s factual findings unless they are clearly erroneous. Id. Reasonableness is

“evaluated by looking at the totality of the circumstances.”         Id. at 488 (quotation

omitted).   But the standard for reasonable suspicion is “not high,” requiring only

“something more than an unarticulated hunch, that the officer must be able to point to

something that objectively supports the suspicion at issue.” State v. Bourke, 718 N.W.2d

922, 927 (Minn. 2006) (quotations omitted).




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       Citing State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980), the state argues

that no seizure requiring reasonable suspicion or probable cause occurred until after an

officer approaching the parked SUV had observed Hunter holding a bag of cocaine.

However, Hunter contends that, because one officer’s shouted direction for Hunter to

show his hands preceded the other officer’s observation of the bag of cocaine, a seizure

had occurred before the officer developed probable cause by observing the bag. 2 After

some confusion, the district court ultimately determined that Hunter’s order of events was

correct, finding that the officer on the driver’s side opened the door before shouting for

the driver to show his hands and, therefore, before the other officer observed the cocaine,

and the state does not argue that this conclusion is clearly erroneous.

       We need not reparse the timing of these events, however, because reasonable

suspicion supported an investigatory seizure even under Hunter’s characterization of the

facts. Officers were present in the parking lot because it was known as a location for

drug transactions.    Although this alone does not constitute reasonable suspicion of

criminal activity, see State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), a police

officer also testified that he observed Hunter’s SUV enter the parking lot and park in a

2
  Through counsel, Hunter implicitly challenges the officer’s testimony that he observed
a bag of cocaine by calling it “implausible.” In a pro se supplemental brief, Hunter
argues that the heavy tint on his SUV’s windows made it impossible for the police officer
to observe what the officer said he did. The district court credited the officer’s claim that
he observed the cocaine, however, and, although we have already held that the doubts
Hunter raises about the tinted windows are sufficient to make it possible that the jury
credited them enough to rely on a constructive-possession theory rather than an actual-
possession theory, these doubts do not rise to the level of certainty necessary for us to
declare the district court’s pretrial finding to be clearly erroneous. See State v. Jones, 566
N.W.2d 317, 325 (Minn. 1997) (“Under the clearly erroneous standard, we shall give due
regard to the [district] court’s ability to ascertain the credibility of witnesses.”).

                                             11
location that, according to the officer’s training and experience, indicated preparation for

a drug transaction. The officer also observed the sedan enter the parking lot and park in a

location consistent with the same inference of a potential drug transaction. The officer

then observed the sedan’s driver and passenger leave the still-running vehicle, enter

Hunter’s SUV, and begin talking with him. Although Hunter is correct that these actions

may also be consistent with innocent explanations, when taken together with the police

officers’ training and experience, they are sufficient to constitute reasonable suspicion

justifying the officers’ approach and investigatory seizure. See State v. Britton, 604

N.W.2d 84, 88-89 (Minn. 2000) (“We are deferential to police officer training and

experience and recognize that a trained officer can properly act on suspicion that would

elude an untrained eye. It is also true that wholly lawful conduct might justify the

suspicion that criminal activity is afoot.” (citations omitted)).       Having developed

reasonable suspicion justifying an investigatory seizure, the police officers were justified

in opening the car door even before viewing the cocaine. See State v. Ferrise, 269

N.W.2d 888, 890 (Minn. 1978) (holding that officer safety and other concerns authorize

police officers to open car doors during an investigatory seizure). Thus, the district court

did not err by refusing to suppress the evidence found in the car.

       Hunter also argues that deficiencies at the SPCL rendered the controlled-substance

evidence against him inadmissible. Although we may address this issue in the interests

of judicial economy, see, e.g., Logan, 535 N.W.2d at 325, we decline in this instance to

do so, allowing the district court at its discretion to further develop the record and make

appropriate findings.


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                                   DECISION

      The district court’s jury instruction defining constructive possession as a

defendant’s exercise of dominion and control over the place in which a controlled

substance was found materially misstated the law.

      Affirmed in part, reversed in part, and remanded.




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