This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Amilica Carranza Amaya,
Filed June 3, 2003
Nobles County District Court
File No. K200977
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Gordon L. Moore, III, David R. Von Holtum, Assistant Worthington City Attorneys, Von Holtum, Malters & Shepherd, P.O. Box 517, Worthington, MN 56187 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Laura Zlotowski (certified student attorney), 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his convictions of driving under the influence of alcohol and leaving the scene of an accident, claiming that the district court erred by denying his pretrial motion to suppress evidence. Because we conclude that the district court did not err, we affirm.
In the early-morning hours of December 25, 2000, the Worthington Police Department received a report of an automobile accident on Highway 59/60 in Worthington. Police arrived at the accident scene and found a vacant Ford Taurus in a ditch by the side of the highway; the car was half-buried in snow, which blocked the driver’s door. Police found a half-empty beer bottle resting against the car and an unopened beer bottle inside the car.
Also at the scene were Paul and Lori Dyke, who had seen the Taurus run off the road, roll over completely, and come to rest in the ditch. The Dykes told police that they had stopped at the scene of the accident, where they saw a lone Hispanic male, approximately five-feet to five-feet four-inches tall and wearing a dark coat and jeans, get out of the Taurus through a door on the passengers’ side of the car. The Dykes then saw this person get into a second car and leave the accident scene.
When police arrived, they found an insurance card inside the Taurus, from which they determined that Maria Carranza was the registered owner of the car. Officer Jenni Rierson was dispatched to Carranza’s address but was unable to find her there. Officer Rierson then returned to the accident scene, and as she approached, she saw a Honda Civic traveling very slowly toward the point where the Taurus was in the ditch. Officer Rierson saw that the Civic had no license plates, and she signaled for the car to pull over. By this time, approximately half an hour had passed since police first received the report of the accident.
The Civic stopped and the driver identified herself as Maria Carranza, the owner of the Taurus. Carranza told Officer Rierson that she had been driving the Taurus at the time of the accident. Officer Jeffrey Appel, who had interviewed the Dykes, joined Officer Rierson and saw that the Civic had three passengers, one male and two female. The male passenger, who was Hispanic and was wearing a dark coat and jeans, was later identified as Carranza’s son, appellant Amilica Carranza Amaya. As he questioned the passengers, Officer Appel noticed that the interior of the car smelled of alcohol and that Amaya’s eyes were glassy and watery.
Officer Appel asked Amaya to get out of the Civic and escorted him to Officer Appel’s squad car. When Amaya got out of the Civic, Officer Appel smelled a “strong odor” of alcohol on his breath. Officer Appel questioned Amaya in the squad car with the help of an interpreter, who was contacted by using a telephone mounted on the dashboard. Amaya told Officer Appel that he had not been drinking and that he had been a passenger in the Taurus, with his mother driving, when the accident occurred. Officer Appel gave Amaya a portable Breathalyzer test (PBT) and had him perform a field sobriety test. The PBT showed an alcohol concentration of .193, and Amaya failed the field sobriety test. Officer Appel placed Amaya under arrest for driving the Taurus while intoxicated. Officer Appel then searched Amaya and found a set of car keys, which were later identified as keys to the Taurus.
The state charged Amaya with three counts of driving under the influence of alcohol, in violation of Minn. Stat. § 169.121, subd. 1 (1998); one count of an aggravated DWI-related offense, in violation of Minn. Stat. § 169.129, subd. 1 (1998), because Amaya allegedly had driven under the influence of alcohol after his Minnesota driver’s license had been revoked; and one count of leaving the scene of an accident, in violation of Minn. Stat. § 169.09, subd. 2 (2000).
Amaya filed a pretrial motion to suppress (1) the results of the PBT and the field sobriety test because they were administered without articulable suspicion of criminal activity and (2) the Taurus keys because they were the fruit of an arrest made without probable cause. The district court denied the motion. Amaya then waived his right to a jury trial and consented to a bench trial on stipulated facts. The district court found Amaya guilty of all charges, and this appeal follows.
D E C I S I O N
Amaya challenges the district court’s denial of his motion to suppress evidence, arguing that (1) his detention in the squad car was an unreasonable seizure and a de facto arrest without probable cause, (2) police lacked justification to administer the PBT and field sobriety test, and (3) police lacked probable cause to arrest him for driving under the influence of alcohol. When reviewing a district court’s denial of a pretrial motion to suppress evidence, we independently review the facts and determine, as a matter of law, whether the district court erred by not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
A. Unreasonable seizure or de facto arrest
The first issue is whether Officer Appel’s questioning of Amaya in the squad car was an unreasonable seizure or, because of the length of the detention, a de facto arrest without probable cause. Both the federal and state constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A person is seized when a police officer by means of physical force or show of authority has in some way restrained the person’s liberty. Terry v. Ohio, 392 U.S. 1, 20 n.16, 88 S. Ct. 1868, 1879 n.16 (1968). An investigative stop of a person is not an unreasonable seizure when the police officer can point to specific and articulable facts that, together with rational inferences from those facts, reasonably warrant the intrusion on the person’s constitutionally guaranteed rights. Id. at 21, 88 S. Ct. at 1880. But under the Minnesota Constitution, a police officer cannot continue to seize a passenger in an automobile stopped for a traffic violation once the initial justification for the traffic stop lapses, unless the officer has a reasonable and articulable suspicion that the passenger has engaged in criminal activity other than the traffic violation. State v. Fort, ___ N.W.2d ___ (Minn. May 1, 2003).
Because in State v. Fort the Minnesota Supreme Court instructed that the Minnesota Constitution provides greater protection than the U.S. Constitution, our analysis focuses only on whether police had a reasonable and articulable suspicion that Amaya, as a passenger, had engaged in criminal activity other than the traffic violation for which the driver was stopped. Officer Rierson’s stop of the Civic because the car did not have license plates was not unreasonable. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333 (1977). The state does not argue that Amaya was not seized when Officer Appel escorted him to and questioned him in the squad car. Officer Appel testified that he suspected that Amaya had been driving the Taurus during the accident because Officer Appel (1) saw that Amaya matched the Dykes’ description of the Taurus’s sole occupant and knew that Carranza’s assertion that she had been driving the Taurus was inconsistent with the Dykes’ account; (2) had seen the Civic drive past the Taurus “really slow as if looking at the accident”; (3) saw that Amaya was in a car being driven by the Taurus’s owner; and (4) knew that at least half an hour had passed since the report of the accident, possibly enough time for Amaya to go to his mother’s home and then return to the scene with her. On these facts, we conclude that Officer Appel had a reasonable and articulable suspicion that Amaya had engaged in criminal activity other than the traffic violation that justified the stop of the Civic.
Amaya also contends that the length of the detention in the squad car shows that he was subject to a de facto arrest without probable cause. See State v. Vereb, 643 N.W.2d 342, 347 (Minn. App. 2002). But placing a person in a squad car from which he is not free to leave does not make an investigatory detention a de facto arrest. State v. Moffatt, 450 N.W.2d 116, 119-20 (Minn. 1990). Instead, courts evaluate the facts and circumstances of the detention to determine whether the reasonable suspicion for the initial stop remained and whether the police acted reasonably and diligently. See id.
Here, the record shows that Officer Appel acted reasonably and diligently in questioning Amaya in the squad car. Officer Appel testified that he needed an interpreter to communicate with Amaya, that the AT&T Language Line was an available interpreter, and that to contact the AT&T Language Line he needed to use a speakerphone mounted on the dashboard of his squad car. The record shows that Amaya was in the squad car only long enough to answer Officer Appel’s questions and complete the PBT. Thus, Amaya was not subject to a de facto arrest without probable cause during the time he was in the squad car.
B. PBT and field sobriety test
The next issue is whether Officer Appel was justified in administering the PBT and field sobriety test. A police officer may request that a driver undergo such tests if the officer has “reason to believe,” or an articulable suspicion, that the driver has been illegally operating the vehicle under the influence of alcohol. Minn. Stat. § 169.121, subds. 1, 6 (1998); see also State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981). Here, the facts that support our conclusion that Officer Appel had an articulable suspicion that Amaya had been engaged in criminal activity other than that for which the Civic had been stopped also support the conclusion that Officer Appel had an articulable suspicion that Amaya had been driving the Taurus when it ran off the road. The record also shows that an open container of alcohol was found next to the Taurus, that Officer Appel smelled alcohol inside the Civic and on Amaya’s breath, and that Amaya’s eyes were glassy and watery. We therefore conclude that Officer Appel had an articulable suspicion that Amaya had been driving the Taurus while under the influence of alcohol and that the administration of the PBT and field sobriety test was justified.
C. Probable cause to arrest
The final issue is whether Officer Appel had probable cause to arrest Amaya for driving under the influence. Probable cause to arrest is more than mere suspicion of criminal activity. See State v. Horner, 617 N.W.2d 789, 796 (Minn. 2000).
Probable cause exists where the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime.
State v. Hendricks, 586 N.W.2d 413, 414 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). Here, the facts that support our conclusion that Officer Appel had an articulable suspicion that Amaya had been engaged in criminal activity other than that for which the Civic had been stopped also support the conclusion that Officer Appel had probable cause to arrest Amaya. In addition, the PBT showed that Amaya had an alcohol concentration of .193, and Amaya failed the field sobriety test. We conclude, therefore, that Officer Appel had probable cause to arrest Amaya for driving under the influence of alcohol and that the district court did not err by denying Amaya’s motion to suppress evidence.
 Minn. Stat. § 169.121 and Minn. Stat. § 169.129 were repealed in 2000 but remained in effect for violations occurring before January 1, 2001. 2000 Minn. Laws ch. 478, art. 2, § 9.