This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1018

 

State of Minnesota,
Respondent,

vs.

Richard John Tanski,
Appellant.

 

Filed December 5, 2000

Affirmed; motion denied

Forsberg, Judge*

 

St. Louis County District Court

File No. T799608572

 

 

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

 

Alan L. Mitchell, St. Louis County Attorney, Angela K. Shambour, Assistant County Attorney, Room 501, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

 

Stephen W. Cooper, Stacey R. Everson, The Cooper Law Firm, Chartered, 800 Ceresota Building, 155 Fifth Avenue South, Minneapolis, MN 55401 (for appellant)

 

 

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Forsberg, Judge.

U N P U B L I S H E D  O P I N I O N

 

FORSBERG, Judge

 

Appellant Richard John Tanski argues that the district court erred in failing to suppress evidence of his intoxication, because police did not have articulable suspicion to stop him and the state failed to show indicia of intoxication to support probable cause to arrest Tanski.  Tanski also argues that police violated his right to counsel because police video and audio taped Tanski when he called his attorney.  Because police were justified in stopping and arresting Tanski and his right to an attorney was vindicated, we affirm.

FACTS

 

            At approximately 10:45 p.m. on July 3, 1999, Richard John Tanski was driving westbound in a silver Ford pickup truck.  Traveling behind Tanski’s truck was a small white vehicle, and behind the white vehicle was a St. Louis County deputy in his squad car.  The deputy had a clear view of Tanski’s truck.  As Tanski entered an intersection, the deputy observed Tanski drift onto the right shoulder of the road.  After Tanski reached the other side of the intersection, the deputy noticed Tanski’s right front tire was over the fog line.  Tanski then jerked his truck to the left, touching the yellow center line of the road.  As the deputy followed Tanski, he observed Tanski’s truck weaving back and forth within the lane.  Twice Tanski again crossed the fog line on the right shoulder, and his left front tire touched the yellow center line one other time.  The posted speed limit was 55 miles per hour, and the deputy judged that Tanski was driving approximately 50 miles per hour.

            After the white vehicle passed Tanski, the deputy moved behind Tanski’s truck.  At first, the deputy speculated that Tanski was having a medical problem or was attempting to plug in a cellular phone, but observed nothing to support either of these theories.  The deputy then activated his lights and stopped Tanski’s truck.  When the deputy approached Tanski, he observed that Tanski’s eyes were red and watery.

According to the police report, the deputy detected a moderate odor of alcohol in Tanski’s truck and asked Tanski if he had been drinking.  Tanski replied that he had.  Tanski failed several field sobriety tests and the deputy arrested him for DUI.  The deputy read the implied consent warning to Tanski, and Tanski indicated he wanted to speak with an attorney. 

The deputy took Tanski to the St. Louis County Jail, where he called an attorney.  The jail’s audio/video system recorded Tanski while he talked to his attorney over the phone.  The state, however, did not attempt to use any portion of the recording against Tanski.  After consulting with the attorney, Tanski agreed to a breath test, which he subsequently failed. 

Following a Rasmussen hearing on October 5, 1999, the district court found that the deputy was justified in stopping Tanski, that the deputy had probable cause to arrest Tanski for DUI, and that Tanski’s right to counsel had been vindicated.  Tanski appeals.

D E C I S I O N

 

“When reviewing pretrial orders on motions to suppress evidence, [this court] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).

1.         Investigatory Stop

 

“In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.” State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000); accord State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  In doing so, this court reviews findings of fact for clear error, giving “due weight to inferences drawn from those facts by [the district court].”  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996)).

Here, the deputy stopped Tanski to investigate why Tanski was weaving and crossing the fog line and touching the center line.  Limited stops to investigate suspected criminal activity are valid if the police officer has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”  United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981).  “All that is required is that the stop must not be the product of mere whim, caprice, or idle curiosity.”  Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (citation omitted); State v. Claussen, 353 N.W.2d 688, 690 (Minn. App. 1984) (recognizing threshold required to stop vehicle to investigate possible wrongdoing is low).  To determine the propriety of investigative stops, this court reviews the totality of the circumstances surrounding the stop and asks whether the police had a reasonable basis to justify the stop.  See Cortez, 449 U.S. at 417, 101 S. Ct. at 695.

In this case, the deputy observed Tanski’s truck drift over the fog line three times and touch the yellow center line twice.  The deputy also observed Tanski’s truck weave back and forth within the lane.  Given these facts, the deputy drew a reasonable inference that Tanski might be driving while under the influence.  See State v. Engholm, 290 N.W.2d 780, 782, 784 (Minn. 1980) (holding stop justified where vehicle weaving in its lane and travelling 15 to 20 mph in 30 mph zone); State v. Ellanson, 293 Minn. 490, 490-91, 198 N.W.2d 136, 137 (1972) (holding stop justified where officer observed driver swerving within his lane).[1]

Tanski argues that the stop was not justified because the deputy did not observe a traffic violation.  Tanski is mistaken, as “[a]n actual violation of the Vehicle and Traffic Law need not be detectable” to justify a stop.  Marben, 294 N.W.2d at 699; see, e.g., Jobe v. Commissioner of Pub. Safety, 609 N.W.2d 919, 923 (Minn. App. 2000) (holding stop justified where driver swerved within his lane, even though swerving was not a traffic-law violation); Engwer v. Commissioner of Pub. Safety, 383 N.W.2d 418, 419 (Minn. App. 1986)(emphasizing that actual violation of vehicle and traffic law need not be detected) (citation omitted).  On the facts of this case, the deputy was justified in stopping Tanski.

2.         Probable Cause

            We do not subject the district court’s finding of probable cause to a rigorous de novo review.  State v. Olson, 342 N.W.2d 638, 641 (Minn. App. 1984).  Rather, the court considers whether the police officer “had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law.”  Id. (citation omitted); see Hedstrom v. Commissioner of Pub. Safety, 410 N.W.2d 47, 49 (Minn. App. 1987) (recognizing test for probable cause is objective, viewed from the perspective of a “prudent and cautious” police officer).  “Probable cause exists where all the facts and circumstances would warrant a cautious person to believe that the suspect was driving or operating a vehicle while under the influence.”  Johnson v. Commissioner of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985) (citations omitted).

Here, the deputy testified that Tanski had “red and watery eyes.”  An officer needs only one objective indication of intoxication to have probable cause to believe a person is under the influence.  Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983) (citation omitted); accord Heuton v. Commissioner of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995).  The deputy also noted in his police report that he smelled alcohol emanating from inside Tanski’s truck.  See State v. Grohoski, 390 N.W.2d 348, 351 (Minn. App. 1986) (holding officer’s observation that defendant’s eyes were bloodshot and watery and he had an odor of alcohol about him, and he admitted he had been drinking was sufficient to justify officer’s belief that defendant was under the influence), review denied (Minn. Aug. 27, 1986).  When the deputy asked Tanski if he had been drinking, Tanski responded that he had.  Kirsch v. Commissioner of Pub. Safety, 440 N.W.2d 147, 152 (Minn. App. 1989) (holding trooper had probable cause to believe defendant was driving while intoxicated where defendant admitted he had been drinking and trooper observed bloodshot, watery eyes).  The deputy observed indicia of intoxication sufficient to constitute probable cause to believe that Tanski was driving under the influence.

3.         Vindication of Right to Counsel

 

            Tanski claims that the state violated his right to counsel because police video and audio taped him when he called his attorney from the St. Louis County Jail.  A defendant’s right to counsel in implied consent cases is a limited right.  Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  Accordingly, a defendant’s right to counsel is vindicated as long as police provide the defendant with a telephone before testing and allow the defendant time to call and confer with an attorney.  Id. (citation omitted).  Here, Tanski’s right to counsel was vindicated, as police provided Tanski with a telephone, which he used to successfully contact and consult an attorney.

Our supreme court has held that police eavesdropping on a defendant’s phone conversation with his or her attorney does not interfere with the right to counsel, because the attorney-client statements overheard by police are suppressed.  State, Dep’t of Pub. Safety v. Held, 246 N.W.2d 863, 864 (Minn. 1976) (rejecting argument that police must permit defendant to call from private room).  Recently, the supreme court held that police were not required to provide a private telephone when the defendant invoked his limited right to consult with an attorney before deciding whether to take the implied consent test.  Commissioner of Pub. Safety v. Campbell, 494 N.W.2d 268, 269 (Minn. 1992).  The court ruled that the defendant’s rights were sufficiently protected by the rule suppressing any overheard statements or any fruits of those statements.  Id. at 269-70.  Similarly, we believe that where police “eavesdrop” on attorney-client conversations by means of audio and video surveillance, a defendant’s rights are protected by the suppression of any incriminating statements overheard by police.

Here, the state never sought to use the tape recordings against Tanski.  If the state had attempted to introduce the tape recordings, the safeguard articulated by our supreme court would have suppressed any incriminating statements or fruits thereof.  Tanski’s limited right to counsel was vindicated.

4.         Motion to Strike Police Records and Related Documents

 

            Tanski moves this court to strike portions of the state’s brief and appendix, particularly the deputy’s police reports, on the grounds that they contain materials outside the record on appeal.  “The court will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).  The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcripts of the proceedings * * * .”  Minn. R. Civ. App. P. 110.01; see Minn. R. Crim. P. 28.02, subd. 8. 

            The record shows that the deputy’s police reports were filed with the district court on July 8, 1999, two months before the Rasmussen hearing.  In its January 24, 2000 omnibus order, the district court based its finding of probable cause on the “record herein, the arguments and submissions of the parties * * * .”  Under these circumstances, the police reports and related documents are part of the record.  We deny Tanski’s motion to strike.

Affirmed; motion denied.



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

[1]Tanski argues that the stop was improper because the deputy initially believed that Tanski was suffering from a medical problem or plugging in a cellular phone.  Tanski’s argument is unpersuasive.  In Shull v. Commissioner of Pub. Safety, 398 N.W.2d 11 (Minn. App. 1986), an officer observed Shull’s vehicle weaving over the center line and driving slower than normal.  Id. at 14.  Although the road was icy and snow-packed, and Shull might have been driving properly given the road conditions, this court held that the officer had “articulated specific facts--excessively slow speed and weaving over the center line--to support the stop.” Id. (citation omitted).  Here, the deputy observed objective bases--swerving and crossing the fog line and touching the center line--to justify the stop.