may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
City of Golden Valley,
Hennepin County District Court
File No. 02006478
Mark J. Schneider, Rondoni and Schneider, Ltd., 505 North Highway 169, Suite 175, Minneapolis, MN 55441-6406 (for respondent)
Lynne A. Torgerson, Esq., 12 South Sixth Street, Suite 1053 Plymouth Building, Minneapolis, MN 55402 (for appellant)
Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a DWI conviction, appellant Tatiana Prokaeva challenges the district court order denying her motion to suppress evidence. She argues that (1) police lacked a reasonable, articulable suspicion to stop her car; (2) the officers improperly required her to provide more than two breath samples for a preliminary screening test (PST) and, therefore, the Intoxilyzer test results should be suppressed as a fruit of an illegal PST; and (3) her statement to police should have been suppressed because she was not given a Miranda warning. We affirm.
At about 11:30 p.m. on January 19, 2002, Golden Valley Police Sergeant Denny Arons was parked on the side of Noble Avenue and Merribee when he saw two cars traveling south on Noble Avenue. There appeared to be less than one car length between the two cars, which, in Arons’s opinion, was very unsafe. Arons also saw that the second car was alternating its speed, repeatedly coming close to the first car and then backing off. Arons testified that a car following another car too closely and alternating its speed are two factors that can indicate a drunk driver. Arons testified that he has training in identifying drunk drivers and 20 years of experience as a police officer.
After following the cars for about a half mile, Arons stopped the second car. Arons approached the car and identified the driver as Prokaeva. Arons detected an odor of an alcoholic beverage on Prokaeva’s breath and observed that her speech was slurred and her eyes appeared to be somewhat watery. Arons directed Prokaeva to exit her car and walk to the squad car. Arons testified that Prokaeva’s balance appeared to be a bit off and somewhat unsteady. Arons asked Prokaeva if she had been drinking, and she admitted to drinking wine earlier in the evening. Arons noted that Prokaeva had a somewhat strong Russian accent, but she appeared to communicate fluently in English. When Arons asked Prokaeva if she was familiar with the alphabet, she said that she was and, at Arons’s request, agreed to try to recite it. Prokaeva became confused when she got to the letter F, and Arons did not pursue the alphabet test any further. Arons then asked Prokaeva to count backwards from the number 38 to the number 22. Prokaeva started at 35 and counted backwards in the correct sequence to 22.
Arons was unable to administer a PST to Prokaeva because the machine in his squad car was a model with which he was unfamiliar. Arons asked Golden Valley Police Officer Michael Mehan, who had responded to a request by Arons for assistance, to administer a PST to Prokaeva. Mehan administered the PST to Prokaeva; the result was over .10.
Mehan informed Arons that the test result was over .10, and Arons arrested Prokaeva for DWI. Arons testified that even without the PST, he would have arrested Prokaeva for DWI based on her driving conduct and on the indicia of alcohol shown by her physical condition.
Prokaeva filed a motion to suppress evidence, arguing that (1) police lacked a reasonable, articulable suspicion to stop her car; (2) the officers improperly required her to provide more than two breath samples for a PST and, therefore, the Intoxilyzer test should be suppressed as a fruit of an illegal PST; and (3) her statement to police should have been suppressed because she was not given a Miranda warning. The district court denied Prokaeva’s motion. Pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), Prokaeva waived her right to a jury trial and submitted the case to the court for a decision on stipulated facts. The district court found Prokaeva guilty of misdemeanor DWI and sentenced her accordingly. This appeal followed.
1. Under the Fourth Amendment to the United States Constitution, police officers may make limited, warrantless investigative stops of vehicles when there is a particularized and objective basis for suspecting the stopped person of criminal activity. State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). “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). But this court applies the clearly erroneous standard of review to the district court’s underlying findings of fact, giving due weight to inferences drawn from those facts by the district court. State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).
A stop must not be the product of “mere whim, caprice, or idle curiosity.” State v. Harris, 572 N.W.2d 333, 337 (Minn. App. 1997) (quotation omitted). Instead, it must be based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant [the] intrusion.” Pike, 551 N.W.2d at 921-22 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). An officer may make an investigatory stop of a vehicle if the officer can articulate a particular and objective basis for believing the stopped individual was engaged in criminal activity. State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989). In determining the validity of an investigatory stop, this court examines the totality of the circumstances. State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983). Courts view the articulated observations of a police officer from the perspective of a trained law-enforcement officer, who may make “inferences and deductions that might well elude an untrained person.” State v. Menard, 341 N.W.2d 888, 892 (Minn. App. 1984) (quoting United States v. Cortez, 449 U.S. 411, 419, 101 S. Ct. 690, 695 (1981)), review denied (Minn. Mar. 15, 1984).
Arons testified that Prokaeva’s car was less than one car length behind the car she was following. In Arons’s opinion, the distance between the two cars was very unsafe. Prokaeva argues that if her car did get too close to the car in front of her, it was only because the first car slowed down abruptly because Arons’s car was parked unsafely, too close to the traffic lane. But Arons testified that his squad car was parked two to three feet away from the traffic lane. He also testified that Prokaeva’s car was alternating its speed, repeatedly coming close to the first car and then backing off. Arons testified that both following too closely and alternating speeds are types of driving conduct that can indicate a drunk driver.
Resolving the issue of the legality of the stop required the district court to determine the credibility of Arons’s testimony versus the testimony of Prokaeva and her friend, the driver of the car that Prokaeva was following. Credibility determinations are solely the fact-finder’s responsibility. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). The district court credited Arons’s testimony and concluded that the stop was legal based on the close distance between the two cars and Prokaeva’s car alternating its speed and on Arons’s 20 years of experience as a police officer following the rules of the road and observing people who had been drinking and driving. The district court did not err in concluding that the stop was supported by a reasonable suspicion of criminal activity. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (although officer did not observe actual violation of traffic laws, stop was supported by reasonable suspicion when defendant’s car was proceeding at an exceptionally slow speed and weaving within its lane and police officer had observed people driving under the influence of alcohol almost every night during the past year).
2. Prokaeva argues that the officers violated Minn. Stat. § 169A.41, subd. 1 (2000), by administering multiple PSTs to her and, therefore, the Intoxilyzer test results should be suppressed as the fruit of an illegal PST. The record contains evidence that the officers may have administered multiple PSTs, but the evidence is unclear regarding the reason or reasons for administering multiple PSTs.
We need not determine whether the officers violated Minn. Stat. § 169A.41, subd. 1, because Prokaeva’s arrest for DWI was not the result of any illegality. The inevitable-discovery doctrine provides that any evidence that may have been illegally obtained may still be admissible if its discovery by lawful means would have been inevitable. Nix v. Williams, 467 U.S. 431, 444-48, 104 S. Ct. 2501, 2509-2511 (1984); Geer v. State, 406 N.W.2d 34, 36 (Minn. App. 1987), review denied (Minn. July 15, 1987). The burden is on the state to show that evidence would have been inevitably discovered. State v. Bauman, 586 N.W.2d 416, 423 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).
Arons testified that even without the PST result, he would have arrested Prokaeva for DWI based on her driving conduct and on the indicia of alcohol shown by her physical condition. Once the facts are established, probable cause is a legal determination. Clow v. Comm’r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985). This court independently reviews the facts to determine the reasonableness of the officer’s actions. State v. Moorman, 505 N.W.2d 593, 599 (Minn. 1993). The district court found that Prokaeva exhibited indicia of alcohol on her person and that “a good part of the field sobriety test is the ability to follow an instruction so she did not properly follow the instructions.” Based on this finding, probable cause to arrest Prokaeva for DWI existed even without the PST.
Prokaeva argues that because Arons did not specifically testify that she failed the field sobriety tests, the evidence is insufficient to prove that she failed a field sobriety test and, therefore, probable cause for arrest did not exist without the PST. The argument is without merit. Arons’s testimony regarding how Prokaeva performed the field sobriety tests incorrectly was sufficient to support a finding that she failed them. The district court did not err in admitting into evidence the Intoxilyzer test results.
3. Prokaeva argues that she was arrested when she was placed in the squad car and, therefore, her statement to Arons should be suppressed because she was not given a Miranda warning. Requesting a sobriety test, a preliminary screening test, or an evidentiary alcohol-concentration test, as provided for by Minnesota's implied-consent law, is not a custodial interrogation for Miranda purposes. State v. Kline, 351 N.W.2d 388, 390 (Minn. App. 1984). A Miranda warning is not required for general on-site questioning, such as, “Have you been drinking?”, “How much?”, “When?”, “Where?”. Id.
Arons’s questioning of Prokaeva did not go beyond general on-site questioning. The fact that some of the questioning took place in the squad car does not convert an ordinary traffic stop into a custodial interrogation. State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986); Kline, 351 N.W.2d at 390. Before a detention is considered an arrest, there must be a significant deprivation of the person’s freedom. Kline, 351 N.W.2d at 390. For example, “[t]o a reasonable person’s mind, an officer’s request to come to the station after a failed sobriety test is an arrest.” Id. at 391. Prokaeva’s statement to Arons occurred before any significant deprivation of her freedom. The district court did not err in admitting it into evidence.
 In her reply brief, Prokaeva points out that the district court sustained an objection to a question about whether the cars were dangerously close together. After the prosecutor established additional foundation, the district court allowed Arons to testify to his opinion on whether there was a safe distance between the cars.