IN COURT OF APPEALS
Joel Clyde Hussong,
Scott County District Court
File No. 70-CR-06-16803
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Special Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for appellant)
Robert E. Oleisky, 250 Second Avenue South, Suite 225, Minneapolis, MN 55401 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.
A police officer who does not see a Type IV personal flotation device in plain sight after lawfully stopping an open watercraft has probable cause to believe that the watercraft’s operator is not carrying the device as required and may ask the operator to present the required device.
The state appeals from a pretrial order suppressing evidence of a boater’s intoxication in a boating-while-intoxicated prosecution. The district court held that a deputy who stopped Joel Hussong’s boat for a moving violation did not have probable cause or reason to suspect any other offense until after the deputy initiated an unconstitutional safety-equipment inspection of the boat. Minnesotalaw requires all watercraft to carry an immediately available Type IV personal flotation device. Because Hussong did not have a Type IV device in plain sight of the deputy who stopped his small, open boat, the deputy had probable cause to believe Hussong was violating the law and could therefore ask Hussong to show him the device. While inquiring about the flotation device the deputy developed reasonable, articulable suspicion that Hussong was intoxicated, and his investigation of this offense provided probable cause to arrest Hussong for boating while intoxicated. We therefore reverse the district court’s suppression of evidence.
In July 2006 Deputy BrettKrickwas patrolling
Deputy Krick remained on his boat and asked Hussong whether he knew why Krick had stopped the boat. Hussong indicated he did not, and Deputy Krick explained the moving violation. Deputy Krick then initiated a safety-equipment inspection of the boat. He asked Hussong to produce two life jackets and Hussong did so. He then asked Hussong to show him a Type IV personal flotation device. He testified that Hussong “fumbled around the boat” looking for one but could not find the required device. Deputy Krick then asked to see a fire extinguisher, and Hussong presented his fire extinguisher.
Deputy Krick found Hussong’s fumbling to be suspicious and he smelled alcohol. He asked Hussong how much he had drunk, and Hussong admitted to drinking two beers. Deputy Krick administered several field sobriety tests and a preliminary breath test. Based on the results, he arrested Hussong for boating while intoxicated. A later test indicated that Hussong’s blood-alcohol concentration was .11.
Following a contested omnibus hearing, the district court granted Hussong’s motion to suppress the evidence, holding that Deputy Krick lawfully stopped Hussong’s boat but lacked probable cause or reasonable, articulable suspicion to expand the scope of the initial stop. Because the court held that the request for Hussong to produce safety equipment was unconstitutional, it suppressed all evidence obtained after Krick made his request. The state appeals.
I. Is the district court’s finding that the deputy did not detect the odor of alcohol before he asked the operator of a lawfully stopped watercraft to show him required safety equipment clearly erroneous?
II. Does the absence of a Type IV personal flotation device in plain sight of an officer who has lawfully stopped a watercraft permit the officer to ask the watercraft’s operator to present the device?
Although Hussong challenged the existence of a moving violation
before the district court, on appeal the parties do not dispute the validity of
the initial stop for Hussong’s failure to yield to Krick’s right of way. See Minn.
R. 6110.1200, subp. 1(C) (2005) (requiring yield to watercraft farthest to
right when two watercraft risk collision); see
also State v. George, 557 N.W.2d
575, 578 (
We review a pretrial order suppressing evidence by independently
examining the facts to determine whether, as a matter of law, the district
court erred in its decision. State v. Askerooth, 681 N.W.2d 353, 359
We first address the state’s argument that Deputy Krick had
probable cause to arrest Hussong before conducting the challenged safety check.
Probable cause to arrest exists when there are objective facts that would lead
a reasonable person to believe that a crime has been committed. State
v. Laducer, 676 N.W.2d 693, 697 (
Deputy Krick testified that he questioned Hussong about his
alcohol consumption when he smelled alcohol. Hussong testified that the
deputy did not ask him whether he had been drinking until after he asked him to
produce the safety equipment. Deputy Krick’s testimony did not directly
contradict Hussong’s testimony, and, even if it had, credibility determinations
are for the factfinder. See State v. Colbert, 716 N.W.2d 647, 653
The state points to Deputy Krick’s responses to two questions to support its position. Referring to his requests for safety equipment, he was asked, “At that point and time while [Hussong] was doing these various tasks that you asked him to do, had you smelled any alcohol up until that juncture?”Deputy Krick responded, “Yes, when I was talking to him.” He also testified that he smelled alcohol “very soon” after he stopped Hussong. But his testimony does not clearly establish a time frame because the first question refers to the time up until Hussong was in the act of retrieving the safety devices, meaning that Deputy Krick could have detected the odor of alcohol while asking him to find the items. Similarly, the deputy’s testimony that he smelled alcohol soon after he stopped the boat is not dispositive because the record is unclear as to how much time elapsed between explaining the basis for the stop and initiating the safety check. When asked about Hussong’s signs of intoxication, Deputy Krick pointed to several facts, in this order: Hussong’s inability to perform manual tasks when looking for the flotation device; the odor of alcohol; and Hussong’s admission to drinking two beers. After making all of these observations, Deputy Krick decided to administer the field sobriety tests. The district court’s finding that the deputy did not detect the odor of alcohol and obtain the admission from Hussong until after he began the safety check is not clearly erroneous.
Hussong’s failure to yield to the patrol boat is alone insufficient to constitute probable cause to arrest for boating while intoxicated. Because Deputy Krick did not develop a basis to believe that Hussong was boating while intoxicated until after he began the safety check, we must determine whether asking Hussong to present the safety equipment after he stopped Hussong’s boat exceeds the constitutional limits of the deputy’s authority.
This case calls into question the quantum of evidence necessary before
a police officer may ask the operator of a watercraft to present required
safety equipment. All watercraft using
state waters must be “equipped with the number and type of personal flotation
or lifesaving devices prescribed by the commissioner [of natural
resources].” Minn. Stat. § 86B.501,
subd. 1(a) (2006). The Department of
Natural Resources has adopted rules requiring every watercraft to have one Type
I, II, or III personal flotation device for each person on board, to carry a
Type IV personal flotation device, and to have a fire extinguisher. Minn. R. 6110.1200, subps. 3(A), 5
(2005). Types I, II, and III are
wearable flotation devices, while a Type IV device is throwable. The rules further specify that a Type I, II,
or III personal flotation device must be “either readily accessible or worn,”
while a Type IV device must be “immediately available.”
Based on these rules and the facts before the court, we conclude
that, applying any standard of evidence, Deputy Krick’s request for Hussong to
present a Type IV personal flotation device was not unconstitutional. An officer may expand the scope of a stop for
investigative purposes if, after the stop, he develops reasonable articulable
suspicion of other criminal activity. State v. Wiegand, 645 N.W.2d 125, 135 (
We need not resolve whether the deputy’s request to see the
required device is an intrusion so minimal that it is similar to a request for
consent or whether the higher standard of probable cause for a search applies. This is because we conclude that Deputy Krick
had probable cause (and therefore also reasonable suspicion) to believe that Hussong
was not carrying a required personal flotation device on the boat he was
We stress that the threshold for probable cause is far less than
the standard of proof required to convict.
Probable cause requires only “a probability or substantial chance of
criminal activity, not an actual showing of such activity.” State
v. Harris, 589 N.W.2d 782, 790-91 (
During Deputy Krick’s brief inquiry about required safety devices, he developed a reasonable, articulable suspicion that Hussong was also boating while intoxicated. After observing Hussong’s operation of the boat, observing Hussong’s post-stop conduct, smelling alcohol, hearing Hussong’s admission to drinking, and conducting field sobriety tests that Hussong failed, the deputy had probable cause to arrest Hussong for boating while intoxicated. The district court erred by suppressing the evidence obtained after Krick initiated the safety check.
The state urges this court to go further and to reverse the
district court on a broader ground, holding that suspicionless safety checks
are constitutional. We decline to do so. See
State v. Green, 538 N.W.2d 698, 701-02 (
D E C I S I O N
After lawfully stopping Hussong’s boat, Deputy Krick developed probable cause that Hussong was not carrying required safety equipment. This supported Deputy Krick’s request that Hussong present a Type IV personal flotation device whether the request must be preceded by reasonable suspicion or probable cause. As Hussong looked for the device, the officer developed a reasonable, articulable suspicion that Hussong was intoxicated. After conducting field sobriety tests, the deputy had probable cause to arrest Hussong for boating while intoxicated. The stop, the request to see the device, and the consequent investigative activity were not conducted in violation of Hussong’s constitutional rights. The district court erred by suppressing evidence that the deputy obtained after he initiated the safety check.