This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-01-793

 

Paul Thomas Johnson, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed November 20, 2001

Affirmed

Kalitowski, Judge

 

St. Louis County District Court

File No. C300101112

 

Steven J. Meshbesher, Gregory S. Sofio, Rory Patrick Durkin, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

Mike Hatch, Attorney General, Sean McCarthy, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

††††††††††† Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Mulally, Judge.*


U N P U B L I S H E D†† O P I N I O N

KALITOWSKI, Judge

††††††††††† Appellant Paul Thomas Johnson challenges the implied consent revocation of his driverís license contending that the arresting officer lacked probable cause to believe he was driving under the influence and that administration of field sobriety tests was the fruit of an illegal search.† We affirm.† †††††

D E C I S I O N†

I.

††††††††††† Appellant contends that the district court erred in finding that the arresting officer had probable cause to believe appellant was driving under the influence of alcohol.† We disagree.†

A finding of probable cause involves questions of fact and law.† The district court must find the facts and then decide whether they constitute probable cause.† Clow v. Commír of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985).† This court owes deference to a district courtís factual findings unless they are clearly erroneous.† Minn. R. Civ. P. 52.01.† This court will only overturn a district courtís conclusions of law if the district court has ďerroneously construed and applied the law to the facts of the case.Ē† Dehn v. Commír of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).†

Here, the arresting officer had multiple indicia on which to base his conclusion that appellant was intoxicated.† Appellant was driving 83 miles per hour in a 65 miles-per-hour zone on a weekend night and the officer noticed the odor of alcohol on his breath.† Appellant also had a portable cooler stored behind the driverís seat.† When the officer asked appellant if he had alcohol in the car, appellant replied that he did not.† When the officer asked appellant what was in the cooler, appellant failed to answer.† The officer then looked inside the cooler and found open containers of alcohol.†

Without considering the officerís search of the cooler the evidence is sufficient.† Appellantís speed, the fact that it was a weekend night, the alcohol on appellantís breath, and his failure to answer questions support the district courtís finding that the officer had probable cause to believe that appellant was driving under the influence.† See Giddings v. Commír of Pub. Safety, 354 N.W.2d 579, 581 (Minn. App. 1984) (noting that late night speeding is a factor that leads to a finding of probable cause); State v. Johnson, 444 N.W.2d 824, 825-27 (Minn. 1989) (noting that suspicious or evasive behavior can support a finding of probable cause).† Since ďan officer need only have one objective indication of intoxication to constitute reasonable and probable grounds to believe a person is under the influence,Ē the district court did not err in finding that the arresting officer had probable cause to believe appellant was intoxicated.† Holtz v. Commír of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983).†

II.

 

Evidence found as a result of an illegal search must be suppressed pursuant to the fruit-of-the-poisonous-tree doctrine.† Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417 (1963).† Appellant argues that the results of his failed field sobriety test should be suppressed as the fruits of the allegedly illegal search of the cooler.† We disagree.

We reject appellantís contention that the officerís decision to require appellant to submit to field sobriety tests was the fruit of an illegal search.† We need not address the legality of the search of the cooler because even if the search was improper, appellantís breath, speed, and failure to answer questions provided the arresting officer with adequate grounds to administer the test.† Given the indicia of intoxication, the arresting officer was dutybound to conduct a further inquiry.† See State v. Fish, 280 Minn. 163, 166, 159 N.W.2d 786, 789 (Minn. 1968) (ďIt is not only the right but the duty of police officers to investigate suspicious behavior, both to prevent crime and to apprehend offenders.Ē).

Affirmed.† ††



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