This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







State of Minnesota,





Larry Gerard Albright,



Filed June 6, 2000


Poritsky, Judge*


Mille Lacs County District Court

File No. K0-98-1233


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Janelle P. Kendall, Mille Lacs County Attorney, John H. Wenker, Assistant County Attorney, 525 Second Street S.E., Milaca, MN 56353 (for appellant)


Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101-2264 (for respondent)



            Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N


The state appeals from a pretrial order suppressing evidence and dismissing its complaint for lack of probable cause.  Because we find no clear and unequivocal error, we affirm.


            On December 13, 1998, a sheriff’s deputy observed and followed a red pick-up truck driving across a “fog-line” and weaving.  After several turns, the truck pulled into a driveway and stopped.  The driver, respondent Larry Gerard Albright, exited the vehicle and began walking away from the deputy.  The deputy called Albright back to the truck and asked his name.  Albright identified himself, admitted that he had consumed alcohol, and submitted to a preliminary breath test, which indicated a warning.

The parties dispute what happened next.  At a contested omnibus hearing, Albright was asked, “What happened after those [sobriety] tests were completed?”  He answered:

[The deputy] told me, he says, take the back road, and he said drive safely and have a good night.  And I thanked him and I shook his hand.  And I started walking back to my truck and when I got almost to my truck he says, oh, by the way, do you have a driver’s license.  And I said, not on me.  And he says, you don’t have it on you or don’t have one.  And I said, I don’t have one.  And that’s when he asked me my date of birth and all that.


At the same hearing, the deputy was asked, “when you were at his truck [during the initial seizure], had you contacted dispatch, then, to run his driver’s license?”  The deputy answered, “Yes, I did.”  The deputy also testified that, based on his observations, permitting Albright to drive would not have been safe and that he told Albright that he was going to give him a ride home.

Albright got into the squad car and the deputy began driving Albright home.  En route, the dispatcher radioed the deputy and told him that Albright’s license was cancelled as inimical to public safety.  The deputy arrested Albright, who was charged with gross misdemeanor driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (1998).

The district court found that Albright’s weaving and crossing the “fog line” gave the deputy reasonable suspicion to seize Albright initially, but considered Albright’s testimony more credible than the deputy’s as to subsequent events.  The district court found that Albright was unlawfully seized for a second time when, as he was returning to his car, the deputy asked him for his driver’s license and learned his birth date, which led to the discovery that his license had been cancelled.  The court granted Albright’s motion to suppress the evidence that his license was cancelled, dismissed the complaint for lack of probable cause, and denied the state’s motion for reconsideration.  This appeal followed.


In a criminal matter, a reviewing court may reverse a district court’s pretrial order only if the state shows clearly and unequivocally both that the district court’s order will have a critical impact on the state’s ability to prosecute the defendant successfully and that the order constituted error.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citation omitted).  There is no dispute that the critical impact requirement is met; the issue is therefore whether the order clearly and unequivocally constituted error either in finding the seizure unlawful or in suppressing evidence.

1.         Unlawful Seizure

The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person [seized] of criminal activity.  The officer may justify his decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person.  However, a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure. 


State v. Harris, 590 N.W.2d 90, 99 (Minn. 1999) (quotations and citations omitted).  A detention may continue only as long as reasonably necessary to effectuate the purpose of the stop.  State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (quotation omitted), review denied (Minn. Mar. 18, 1997).

When the original suspicion justifying the stop is dispelled, a police officer may not continue or resume a seizure unless there is additional suspicion remaining.  State v. Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992) review denied (Minn. Dec. 15, 1992).  In Hickman, the officer stopped the defendant after noticing an expired sticker on the defendant’s license plate.  However, before leaving his patrol car, the officer saw a yellow 21-day permit on the defendant’s rear window.  The officer confirmed the validity of the permit as he walked to the defendant’s car. The officer approached the defendant and asked to see his license.  When the defendant admitted that he did not have a valid license, the officer charged him with driving after revocation. Id. at 674.  The trial court found that the initial stop was lawful, but suppressed evidence obtained after the officer learned that the permit was valid.  This court affirmed the trial court:

After seeing the valid temporary permit, the officer no longer had articulable and reasonable suspicion that the vehicle was unregistered, that the driver was unlicensed, or that any criminal activity was afoot. That the initial stop was constitutional did not establish the constitutionality of the later intrusion (asking to see the driver’s license).


Id. at 675.

Here, once the deputy released Albright from the initial seizure, the deputy could not seize him a second time without additional reasonable suspicion.  However, there was no additional reasonable suspicion to warrant the second seizure.  Accordingly, we conclude that the district court did not err in finding the second seizure unlawful. 

2.         Suppression of Evidence

 The state argues that even if the seizure of Albright was unlawful, the seizure was not the “but for” cause of the discovery that Albright’s license was cancelled.  Thus, the state concludes, the cancellation would inevitably have been discovered.  However, as the state conceded at the hearing, in order to ascertain the status of Albright’s driver’s license, one would need Albright’s date of birth.

There was conflicting evidence as to when the deputy learned of Albright’s birth date.  Albright testified that he did not supply his birth date until after the deputy called him back to the patrol car, while the deputy gave vague testimony to the effect that Albright did identify himself, including his name and date of birth, when he exited his vehicle and walked away.  The district court explicitly found Albright’s testimony concerning the sequence of events to be more definite in time and more credible than the deputy’s testimony.  We defer to the district court’s findings of fact and determinations of credibility.  See DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984) (weight and credibility of testimony are determinations for trier of fact and may not be reweighed on appeal).  There is no basis for reversing the district court’s credibility determination that Albright was correct as to the sequence of events.  Since neither the deputy nor anyone else from the state could learn the status of Albright’s license without using the unlawfully seized evidence, we conclude the district court did not err in suppressing the evidence.  



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.