This opinion will be unpublished and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
A15-1197
State of Minnesota,
Respondent,
vs.
Eric Jon Larcom,
Appellant.
Filed July 25, 2016
Affirmed
Ross, Judge
Kandiyohi County District Court
File No. 34-CR-14-1056
Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and
Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Cleary, Chief Judge; and
Ross, Judge.
UNPUBLISHED OPINION
ROSS, Judge
A state trooper stopped Eric Larcom for not wearing his seatbelt, and while he spoke
with Larcom he saw a lone marijuana seed on the seat of Larcom’s pickup truck. Larcom
said that his girlfriend smoked pot but that he did not because he was on parole for selling
drugs. The trooper searched the truck, finding methamphetamine and other marijuana
remnants. Larcom moved to suppress the drug evidence, arguing that the trooper lacked
probable cause to search. The district court denied the motion, and we affirm, because the
trooper had probable cause to search.
FACTS
State Trooper Eric Hopkins noticed that the driver of a pickup truck was not wearing
his seatbelt, so he stopped the truck. Trooper Hopkins walked to the passenger side and
spoke through the open window to the driver, Eric Larcom. The trooper, familiar with the
characteristics of marijuana, was telling Larcom why he stopped the truck when he noticed
a single marijuana seed on the passenger seat. Trooper Hopkins reached in and picked up
the seed, and he asked if Larcom smoked marijuana. Larcom said no, he did not, because
he was on parole for selling drugs. But Larcom volunteered that his girlfriend does smoke
it.
Trooper Hopkins directed Larcom from the truck and searched it. He found a
substance that he suspected to be methamphetamine, and a field test confirmed his
suspicion. The trooper also found a marijuana leaf and stems on the truck’s floor. The state
charged Larcom with felony fifth-degree possession of a controlled substance and petty-
misdemeanor possession of a small amount of marijuana.
Larcom moved to suppress the evidence of the drugs, challenging the trooper’s
seizure of the marijuana seed and his search of the truck. The district court denied Larcom’s
motion. It held that the trooper saw the marijuana seed in plain view, and it found that the
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incriminating nature of the seed was immediately apparent to him based on his training and
experience, giving him probable cause to reach inside and seize the seed. It determined that
the trooper could lawfully search Larcom’s truck for drugs, finding that three facts
supported probable cause: (1) the marijuana seed’s presence in the truck; (2) Larcom’s
statement that he was on parole for selling drugs; and (3) Larcom’s statement that (in the
district court’s words) his “girlfriend occasionally possessed marijuana within [his]
vehicle.” The district court reasoned that Trooper Hopkins had probable cause to search
based on the first two facts alone, and the my-girlfriend-smokes-it statement merely
strengthened the justification to search.
Larcom and the state proceeded under Minnesota Rule of Criminal Procedure 26.01,
subdivision 4. Larcom therefore stipulated to the prosecution’s case so he could preserve
for our review the issue of whether the district court properly rejected his motion to
suppress. The state dismissed the petty-misdemeanor charge. Larcom appeals.
DECISION
Larcom challenges the district court’s denial of his motion to suppress the evidence
of methamphetamine. We review the district court’s pretrial fact-findings for clear error
and its legal determinations de novo. State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009).
And we review de novo its ultimate ruling on the constitutionality of the search and seizure.
State v. Anderson, 733 N.W.2d 128, 136 (Minn. 2007).
The United States and Minnesota Constitutions guarantee individuals the right to be
free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. A warrantless search is unreasonable unless a warrant exception applies. State v.
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Licari, 659 N.W.2d 243, 250 (Minn. 2003). Under the automobile exception, a warrantless
search of a vehicle is justified when police have probable cause to believe that the vehicle
is carrying contraband. State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007). Probable
cause is based on the totality of the circumstances, including “reasonable inferences that
police officers draw from facts, based on their training and experience.” State v. Lester,
874 N.W.2d 768, 771 (Minn. 2016).
We have previously reasoned that “[t]he discovery of marijuana in a car gives law
enforcement probable cause to search for more anywhere in the car where one might
reasonably expect to find marijuana.” State v. Thiel, 846 N.W.2d 605, 611 (Minn. App.
2014), review denied (Minn. Aug. 5, 2014). But we need not address Larcom’s and the
state’s arguments over whether the marijuana seed by itself provides a sufficient basis to
search the truck. The district court credited the trooper’s testimony that he knew the seed
was marijuana before he seized it. Based on this and the district court’s other fact-findings,
a reasonable officer in the trooper’s shoes would have known or inferred the following
probable-cause related facts: the stopped pickup truck was occupied by a convicted drug
dealer whose girlfriend, who uses marijuana, brought marijuana into the pickup. We are
satisfied that these facts would lead a reasonable officer to believe he may find more drugs
in the pickup.
Larcom attacks an underlying finding. He contends that the district court clearly
erred by finding that he had “stated that [his] girlfriend occasionally smoked marijuana
within [his] vehicle and that the marijuana seed likely belonged to [his] girlfriend.” It is
true that Larcom was not quite so specific when he outed his girlfriend during the roadside
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discussion. He did not expressly “state” what the district court said he stated. But the
substance of the finding rests on reasonable inferences from the undisputed evidence. It
was in the context of the trooper’s question about Larcom’s drug use—a question that
immediately followed the trooper’s discovery of the marijuana seed in the truck—that
Larcom revealed his girlfriend’s marijuana use. This effectively attributed the seed’s
presence in the truck to his girlfriend’s use, and effectively connected that use to the truck.
We are therefore not concerned about whether it was the district court or the trooper who
first made the implied connection between the location of the seed and the location of the
drug use; any reasonable officer in the trooper’s position would have inferred the
connection. This conclusion does not depend on Larcom’s expressly saying that his
girlfriend’s drug use occurred inside the truck.
Larcom contends that the marijuana seed cannot support probable cause because
sterilized seeds are not included in the definition of marijuana under Minnesota Statutes
section 152.01, subdivision 9 (2014), and even a trained officer cannot determine by visual
observation whether a single seed has, in fact, been sterilized. One problem with the
argument is that the statute defines marijuana expressly to include, among other details,
“all parts of the plant of any species of the genus Cannabis, including . . . the seeds thereof.”
Minn. Stat. § 152.01, subd. 9. That the statute then excepts from the definition “the
sterilized seed of such plant which is incapable of germination” does not prevent an officer
from relying in part on the presence of a marijuana seed, among other facts, when the seed
has not been tested for sterility. Based on the definition, the statutes criminalize the
possession or dealing of marijuana seeds generally, and they include an exception when
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the naturally illegal seeds have been sterilized. No facts were present to suggest to the
trooper that the seed he found was one of the exceptional, legal seeds. To the contrary, a
reasonable officer would infer that the seed was not benign given the conversation with
Larcom about the seed’s apparent origin. The reason sterile seeds are not themselves illegal
is of course because a sterile seed cannot produce a usable drug. But the possession of a
seed implies that the seed itself was produced from a usable drug, and Larcom’s comments
imply that this particular seed was a byproduct of his girlfriend’s usable drugs. And again,
we are not deciding here whether the presence of the seed, standing alone, establishes
probable cause to search the truck; we are considering the seed along with Larcom’s
incriminating comments.
Larcom next challenges any officer’s reliance on a criminal record as a basis for
probable cause under the Fourth Amendment. Larcom correctly observes that, although
Minnesota cases expressly hold that a criminal record is relevant when a judge considers
whether to issue a search warrant, see, e.g., State v. Carter, 697 N.W.2d 199, 205 (Minn.
2005), no Minnesota case has said specifically that police may similarly consider a criminal
record when developing probable cause to search. But again, probable cause is a purely
objective standard—not a subjective standard—bearing on the likelihood that evidence will
be found. Lester, 874 N.W.2d at 771. Multiple federal courts have therefore specifically
observed that a person’s criminal history is also a factor supporting an officer’s probable
cause determination. See, e.g., United States v. Collins, 532 F.2d 79, 84 (8th Cir. 1976)
(listing the defendant’s disclosure that he was a convicted felon as a factor supporting an
officer’s probable cause for a warrantless arrest); United States v. Solis, 469 F.2d 1113,
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1115 (5th Cir. 1972) (identifying the arresting officers’ knowledge of defendants’ prior
arrests for drug offenses as a factor supporting probable cause for police to arrest for a drug
offense).
And the Supreme Court has declared that the scope of a search is the same whether
it results from an officer’s probable cause determination or a judge’s probable cause
determination, explaining that when a search rests on the officer’s determination as
opposed to a judge’s, the scope of the search is “no broader and no narrower than a
magistrate could legitimately authorize by warrant.” See United States v. Ross, 456 U.S.
798, 825, 102 S. Ct. 2157, 2173 (1982). Fundamental to our issue, establishing the parallel
between the bases for a police officer’s probable cause determination and the bases for a
judicial officer’s probable cause determination in the related context of an arrest, the
Supreme Court has also explained specifically that the judicial officer considering whether
to issue a warrant “must judge for himself the persuasiveness of the facts relied on by a
complaining officer to show probable cause.” Giordenello v. United States, 357 U.S. 480,
486, 78 S. Ct. 1245, 1250 (1958) (emphasis added). And the Court has drawn the parallel
plainly as to searches, mirroring the probable cause tests for the judge issuing a warrant
and an officer searching without one. Compare Illinois v. Gates, 462 U.S. 213, 238, 103 S.
Ct. 2317, 2332 (1983) (“The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set forth in the affidavit
before him, . . . there is a fair probability that contraband or evidence of a crime will be
found in a particular place.”), with Husty v. United States, 282 U.S. 694, 701, 51 S. Ct. 240,
242 (1931) (“It is enough [for an officer] if the apparent facts which have come to his
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attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man
to believe that liquor is illegally possessed in the automobile to be searched.”), and cf.
Wong Sun v. United States, 371 U.S. 471, 482, 83 S. Ct. 407, 414 (1963) (holding that “an
officer may [not] act in his own, unchecked discretion upon information too vague and
from too untested a source to permit a judicial officer to accept it as probable cause for an
arrest warrant”). We see no reason (and Larcom suggests no reason) why police cannot
develop probable cause based in part on the same criminal background a judge relies on.
The Carter court cautioned that criminal history “is best used as corroborative information
and not as the sole basis for probable cause.” 697 N.W.2d at 205 (quotation omitted). This
best-practices admonition fits here, where the fact that Larcom had been convicted of drug
dealing is only one of the probable cause factors the trooper could consider.
Affirmed.
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