Pubdate: Mon, 19 Sep 2005
Source: Winona Daily News (MN)
Copyright: 2005 Winona Daily News
Author: Jeff Dankert
Bookmark: (Cocaine)


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 

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.
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