WHAT IS PROBABLE CAUSE?

Cocaine Seizure By Winona Police Appealed To State Supreme Court

A Winona cocaine case before the Minnesota Supreme Court challenges
probable cause by Winona police to search a vehicle and emphasizes state
constitutional protection against unreasonable searches and seizures.

Richmond H. McCluer and John P. Plachecki, Winona attorneys representing
43-year-old Peggy Louise Burbach of Winona, convinced a judge in Winona
County District Court to suppress evidence collected during a traffic stop
and dismiss the case.

However, Winona County Attorney Chuck MacLean asked the state Court of
Appeals to reverse the decision, which it did in February.

McCluer and Plachecki countered with a petition to the Minnesota Supreme
Court, asking it to review the lower court's decision. The court agreed to
hear the case.

The Arrest

On Feb. 8, 2004, Winona police stopped a car for speeding. Officer Adam
Brommerich noticed its license plate matched a vehicle that narcotics
officers believed was transporting cocaine, court documents said.

Brommerich approached Burbach, who was driving, and recognized her name as
a person mentioned in the tip.

Brommerich smelled alcohol. Burbach said she was not drinking. However, the
42-year-old passenger, Michael Joseph Meilinger, said he had been drinking.
Burbach passed field sobriety tests, but Brommerich reported she acted
nervous and had constricted pupils.

Brommerich asked Burbach to empty her pockets onto the hood of the squad
car, and found a burnt scouring pad, commonly used as a filter in crack
cocaine pipes. Brommerich also got Burbach's permission to search the
vehicle. Another officer on scene saw three plastic bags of white powder on
the passenger seat.

They arrested Burbach and Meilinger on suspicion of possessing cocaine,
impounded the vehicle and searched it more thoroughly.

Police gave Burbach an Intoxilyzer test at the jail, which showed zero
blood-alcohol content. A deputy searched Burbach and found a pipe and piece
of crack cocaine.

The Winona County Attorney's Office charged Burbach with fifth-degree
cocaine possession, possession of drug paraphernalia, two counts of
fourth-degree driving under the influence and two traffic tickets. It also
charged Meilinger with fifth-degree cocaine possession.

Court Battle

McCluer and Plachecki filed a motion in Winona County District Court to
suppress evidence used by police to bring charges against Burbach.

In court, Brommerich said he was eager to search the vehicle based on the
narcotics tip and said the search was unrelated to the speeding stop, court
documents said. Judge James A. Fabian dismissed all charges except a
speeding and insurance violation.

Fabian said Burbach's passage of field sobriety tests should have dispelled
suspicion of impairment and that Brommerich unlawfully expanded the
allowable scope of a speeding stop into a search for drugs. There was no
clear proof that Brommerich knew Burbach's car had cocaine, Fabian ruled.

The Appeal

On MacLean's request, the Court of Appeals reversed Fabian's order.

The appeals court said suppression of evidence hampered prosecution of
Burbach. The principles of Terry v. Ohio lay out reasonable causes to seize
property during a traffic stop for even a minor violation, it said.

Much of the Burbach case focuses on a 1983 Minnesota case, State v.
Schinzing. MacLean argued that Schinzing shows alcohol odor alone is
probable cause to search anywhere inside the vehicle for open containers of
alcohol.

Appeals court Judge Randolph W. Peterson ruled each increment of searching
by police was justified, and that Judge Fabian erred in dismissing the
charges. He reversed Fabian's decision.

After the Supreme Court received briefs outlining each side's case,
Plachecki and MacLean gave oral arguments Sept. 7. The Supreme Court has
three months to make a ruling.