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STATE OF MINNESOTA IN SUPREME COURT A10-0916 Court of Appeals State of Minnesota, Respondent, vs. Brandon Ryan Smith, Appellant. Filed: June 6, 2012 Office of Appellate Courts Anderson, Paul H., J. Dissenting, Page and Meyer, JJ.

________________________ Lori Swanson, Attorney General, Saint Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Cheri A. Townsend, Assistant County Attorney, Hastings, Minnesota, for respondent. David W. Merchant, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant State Public Defender, Saint Paul, Minnesota, for appellant. ________________________ SYLLABUS A police officer's expansion of the scope of a lawful traffic stop is supported by reasonable, articulable suspicion of illegal activity when the totality of the circumstances include the defendant shaking "very violently" and the defendant's evasive explanation to the officer when asked why he was "shaking so bad[ly]." Affirmed.

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OPINION ANDERSON, Paul H., Justice. The State charged Brandon R. Smith with gross misdemeanor possession of a pistol without a permit and misdemeanor illegal transportation of a firearm. The charges resulted from Smith's possession of a pistol retrieved from his car by two state troopers during an otherwise lawful traffic stop. At a contested omnibus hearing before the Dakota County District Court, Smith challenged the admission of the pistol into evidence. Smith argued that the court should exclude the pistol because the troopers expanded the scope of the traffic stop without reasonable, articulable suspicion of illegal activity, as required under Minnesota law. The court denied Smith's motion. The court

subsequently found Smith guilty of both charged offenses, convicted him of both offenses, and sentenced him. Smith appealed. The court of appeals vacated the

misdemeanor sentence for illegal transportation of a firearm but affirmed the gross misdemeanor sentence for possession of a pistol without a permit, concluding that the district court did not err when it admitted the pistol into evidence. State v. Smith, No. A10-916, 2011 WL 1236122, at *4 (Minn. App. Apr. 5, 2011). Smith appealed his gross misdemeanor conviction to our court on the same grounds. We affirm. On the evening of July 6, 2009, Minnesota State Trooper Trainee David Ehrhardt, under the direction of State Trooper Michael J. Gensmer, "clocked" the appellant, Brandon R. Smith, driving a Chevrolet Camaro at 77 miles per hour in a 65-miles-perhour zone. When the officers clocked Smith's speed, they were parked in a marked squad car on the Highway 52 median at 200th Street in Vermillion Township, 2

Dakota County. When Smith drove past the officers, he was in the northbound left lane of Highway 52. As Smith drove by, the officers observed that he was not wearing his seatbelt. The officers pulled onto Highway 52 to follow Smith. But before the officers could activate their siren or emergency lights, Smith moved into the right lane and then onto the highway's shoulder, where he came to a stop. After Smith stopped his car, the officers pulled up behind him and activated their emergency lights. At this time the officers observed that Smith's car had Illinois license plates. After the two vehicles were stopped on the shoulder of the highway, Ehrhardt got out of the squad car and walked to the passenger side of Smith's car. At the time, Ehrhardt was wearing a microphone that recorded his conversation with Smith and played the conversation through a speaker inside the squad car, where it could be heard by Gensmer. After reaching Smith's car, Ehrhardt asked Smith if he knew why he had been stopped. Smith replied that he did not know why the officers had stopped him. Ehrhardt then explained that Smith had been speeding and he was seen not wearing a seatbelt. Ehrhardt also asked Smith for his driver's license and proof of insurance. Smith gave Ehrhardt his license, but stated that he did not have proof of insurance because he had recently switched insurance carriers and had not yet received his new insurance card. At this point, Gensmer, who was listening to the conversation while sitting in the squad car, sensed that Ehrhardt was "struggling a little bit" with the stop. As a result of this concern, Gensmer got out of the squad car and joined Ehrhardt at the passenger side of Smith's car. 3

Gensmer asked Smith why he had "pull[ed] over . . . if [he didn't] know why [he] got stopped." Smith replied that he had pulled over to enter an address into his GPS system. Smith explained that he was travelling from Illinois to meet someone at an American Legion bar in Saint Paul, but did not know how to get to the bar. During this interaction, Gensmer noticed that Smith was shaking "very violently"--"way worse than anyone with Parkinson's Disease." Gensmer asked Smith why he was "shaking so bad[ly]." Smith replied, "I always shake." Gensmer then asked whether Smith's shaking was a medical condition. Smith responded that his shaking was due to an undiagnosed medical condition that he had suffered from his entire life. Gensmer later testified at a contested omnibus hearing that he did not believe Smith was under the influence of alcohol or drugs when the stop was made, but instead assumed Smith's shaking was due to nervousness. Gensmer also testified that during this interaction he saw a box of Remington ammunition partially covered with debris on the floor in the backseat of Smith's car. Following their initial interaction with Smith, Gensmer and Ehrhardt returned to the squad car. In the squad car, the two officers discussed Smith's nervousness and the fact that Smith was travelling from Illinois to Saint Paul. Gensmer later testified that he found Smith's behavior "evasive" and "odd." Because of that impression, Gensmer told Ehrhardt, "[H]e's probably hiding something in the car or he ha[s] some kind of criminal activity going on here, so you might want to investigate a little further." Gensmer then instructed Ehrhardt to return to Smith's car to ask for Smith's middle name so the officers could run a computer verification of Smith's driver's license. Gensmer also instructed 4

Ehrhardt to ask Smith if he had "anything illegal in [the] car [or] any weapons in [the] car." Ehrhardt followed Gensmer's instructions and returned to the passenger side of Smith's car. Ehrhardt asked Smith for his middle name and then asked if Smith had "anything illegal or any weapons in th[e] car." Smith responded that he had his pistol with him, and motioned toward the space near the center console next to his right hip. During this conversation, Gensmer was listening while he remained inside the squad car. After hearing that Smith had a pistol, Gensmer again joined Ehrhardt at the passenger side of Smith's car. Gensmer spoke with Smith while Ehrhardt circled to the driver's side of the car. The officers then told Smith to get out of his car. Smith complied with the request. Once Smith was outside the car, the officers handcuffed him and asked if he had a permit to carry his pistol. Smith replied, "I did, but it got taken away . . . ." The officers then placed Smith in the backseat of the squad car. While Smith remained in the squad car, the officers retrieved the pistol from Smith's car and conducted a search of the car, eventually enlisting the aid of other officers and a K-9 unit. During the search, the officers removed a box of Remington ammunition from the backseat. The officers did not find any drugs or other illegal material in Smith's car. Gensmer testified during the omnibus hearing that Smith had been cooperative, that his driver's license was valid, and that the two officers made no further inquiries into Smith's proof of insurance beyond their initial request. After making arrangements to have Smith's car towed, the officers left the scene with Smith in

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custody in the backseat of the squad car. The officers took Smith to the Dakota County Jail, where he was booked. Two days later, the State charged Smith by complaint with gross misdemeanor possession of a pistol without a permit, Minn. Stat.

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