This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-1176

 

State of Minnesota,

Appellant,

 

vs.

 

Jessica Ann Linn,

Respondent.

 

Filed December 31, 2002

Reversed and remanded

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. 02036306

 

 

 

Mike Hatch, Attorney General, 102 Capitol Building, St. Paul, MN 55155; and

 

Kenneth N. Potts, Shorewood City Attorney, 5101 Thimsen Avenue, Suite 200, Minnetonka, MN 55345 (for appellant)

 

David L. Valentini, Valentini & Associates, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415-1016 (for respondent)

 

 

Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D†† O P I N I O N

GORDON W. SHUMAKER, Judge

††††††††††† Respondent Jessica Ann Linn was charged with third-degree driving while impaired and third-degree alcohol-concentration over 0.10 within two hours of driving.† After a Rasmussen hearing, the district court found that there was no reasonable, articulable suspicion for stopping Linn after the officer observed her weaving in her lane and crossing the center and fog lines in a construction zone, and the court stayed the proceedings pending appeal.† Because we hold that the officer had reasonable, articulable suspicion for stopping Linn because of her improper driving conduct, we reverse and remand.

FACTS

††††††††††† Around 11:20 p.m. on Friday, April 26, 2002, Officer Justin Ballsrud of the South Lake Minnetonka Police Department observed Linnís Honda Accord traveling eastbound on Highway 7.† As Linnís car approached the intersection of Highway 41 and Highway 7, Ballsrud saw Linnís car cross over the fog line with both right-side tires for about two to three car lengths.† At this point, Highway 7 divided into two lanes, and Linn moved over to the left lane.† After Linn passed Highway 41, Ballsrud noted that her car was weaving in its lane, crossing over the white centerline once and then over the yellow fog line once.† Shortly after seeing these traffic violations and following Linn for 2.2 miles, Ballsrud stopped Linnís car.† Ballsrud ultimately arrested Linn for driving while under the influence.† Her intoxilyzer reading was 0.15.†

Highway 7 was under construction at this time.† The road had potholes and an uneven surface because it had been partially stripped.† Linn contends she was trying to avoid these conditions by weaving and crossing the center and fog lines.† Linn argues that she commutes to work every day on Highway 7, knows the road conditions from memory, and intentionally drove in a manner that would avoid the potholes and slanted road.† After the Rasmussen hearing, the district court found that there was not a reasonable, articulable suspicion to support Linnís stop because the driving conduct was minimal and was a good-faith effort to avoid the poor road conditions.† The court ordered the proceedings stayed for appeal.† The state appeals the district courtís Rasmussen ruling.

D E C I S I O N

††††††††††† In appeals from pretrial suppression orders, we independently review the facts and determine as a matter of law whether the trial court erred in its decision.† State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).† To conduct a stop for limited investigatory purposes, an officer must have reasonable, articulable suspicion of criminal activity.† State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80 (1968)).† We review questions of reasonable, articulable suspicion de novo.† State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).† The key to determining whether there is a reasonable basis to justify a stop is to consider the totality of the circumstances.† Id.† A stop ďmust not be based on mere whim, caprice, or idle curiosity.Ē† State v. Haataja, 611 N.W.2d 353, 354 (Minn. App. 2000), review denied (Minn. July 25, 2000).†

††††††††††† Ballsrud did not recall that the road had potholes and a slanted surface, and the district court found Linnís testimony regarding the road conditions more credible.† It is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the finder of fact.† State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).† The district court did not find that Ballsrudís testimony lacked credibility, but rather that Linnís improper driving conduct was minimal and that Linn was acting in good faith.† The court noted that this ďdoes make the defense argument more credible.Ē† So, we will review as a matter of law whether Ballsrud had reasonable, articulable suspicion to stop Linn for weaving and crossing the center and fog lines while driving in a construction zone that had potholes and a slanted road, which Linn argues she was trying to avoid.

††††††††††† ďOrdinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.Ē† State v. George, 557 N.W.2d 575, 578 (Minn. 1997).† A driver must drive ďas nearly as practicable entirely within a single lane.Ē† Minn. Stat. ß 169.18, subd. 7(a) (2000).† When an officer sees a driver cross the centerline, the officer has the requisite reasonable, articulable suspicion for a valid investigatory stop.† State v. Wagner, 637 N.W.2d 330, 335-36 (Minn. App. 2001).† We have also held that an officer can stop a driver even if there is no violation of any traffic laws, as long as the officerís suspicion is ďspecific and articulable.Ē† Warrick v. Commír of Pub. Safety, 374 N.W.2d 585, 586 (Minn. App. 1985) (quoting Marben v. State, Depít of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980)).

††††††††††† If a stop is supported by articulable, objective facts, the stop is permissible, and a finding to the contrary is clearly erroneous.† The facts that Ballsrud observed and articulated were: (1) both right-side tires of Linnís car crossed over the fog line for two to three car lengths, (2) Linnís car was weaving in its lane, (3) Linnís car crossed over the white centerline once, and (4) Linnís car crossed over the yellow fog line once.† We hold that Ballsrudís observation of these traffic violations gave him reasonable, articulable suspicion to stop Linnís car.†

Although Linn relies on Warrick, that case is distinguishable from Linnís situation because in Warrick the defendant did not cross either the fog or centerlines, but just weaved in her lane on a windy night.† Warrick, 374 N.W.2d at 585.† Thus, Warrick is factually distinguishable.† Linnís situation is also distinguishable from State v. Anderson, where an officer stationed himself at a road-closed barricade to stop cars to make sure the occupants of the cars were local residents.† State v. Anderson, 620 N.W.2d 56, 57 (Minn. App. 2000).† In Anderson, the officer stopped vehicles before he suspected criminal activity.† Id. at 58.† Ballsrud, on the other hand, saw Linn commit traffic violations before he stopped her.† Thus, Anderson is also distinguishable on its facts.

††††††††††† Linn contends that the road conditions must be taken into consideration in determining whether Ballsrud had reasonable, articulable suspicion for stopping her.† We have previously decided the issue of what an officer must observe and infer to have reasonable, articulable suspicion when there are poor road conditions.† The dispositive case on this point is Shull v. Commír of Pub. Safety, 398 N.W.2d 11 (Minn. App. 1986).† In Shull, an officer saw the defendant driving slower than necessary on a snow-packed and icy road and weaving back and forth over the centerline.† Id. at 13.† We held in Shull that even though an officer could infer that the driverís conduct was innocent, based on the officerís training and experience, if the officer infers that the driving conduct violates the law, the officer has a reasonable, articulable suspicion for the stop.† Id. at 14.† Linnís situation is very similar to Shullís.† Ballsrud could have inferred that Linnís driving conduct was innocent, that she was driving through a construction zone and trying to avoid the slanted road and potholes.† But, under Shull, Ballsrud could also properly infer that the driving conduct violated the law.† Based on the officerís training and experience, Linnís driving conduct could reasonably lead him to suspect that Linn might be impaired.

The district court found that Linnís improper driving conduct was minimal and that she was acting in good faith in trying to avoid the slanted road and potholes.† Minimal improper driving conduct is still a basis for a stop.† Poor road conditions and good faith do not negate that basis.† Linn contends that her facts are different from those in Shull because in Shull the weather conditions would not have caused the driver to weave out of a single lane; rather, he could have slowed down and adapted his driving to those conditions.† But Linn overlooks the fact that in Shull the driver had in fact slowed down and was allegedly driving in a manner to prevent the weather conditions from causing him to slide into a ditch.† Id. at 14.† Linnís asserted reason for swerving is similar to Shullís because Linn was driving to avoid the road conditions.† Linnís explanation for her driving conduct does not change the facts that Ballsrud observed.† It was those observable, articulable facts that provided the officer with the authority to stop Linnís car and investigate further.†

††††††††††† Linn also contends that Ballsrud admitted that he would not have reasonable, articulable suspicion to stop Linn if there were potholes and construction that she was trying to avoid on the road.† Under Wagner, it does not matter whether an officer subjectively believes that reasonable, articulable suspicion would not exist under certain circumstances. That is a legal conclusion for the court to draw. Wagner, 637 N.W.2d at 336.† We hold that Ballsrud had reasonable, articulable suspicion to stop Linnís car and that the district court erred by deciding otherwise.

††††††††††† Reversed and remanded.

†††††††††††



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