This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Joseph Michael Capistrant,



Filed July 1, 2003


Toussaint, Chief Judge


Hennepin County District Court

File No. 02091716


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


Steven M. Tallen, Tallen & Baertschi, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


Patrick T. Skelly, Skelly & Capistrant, P.A., Suite 100, 1724 Selby Avenue, St. Paul, MN 55104 (for respondent)


            Considered and decided by Chief Judge Toussaint, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


Appellant challenges the district court’s determination that an police officer’s stop of respondent was unconstitutional.  Because we conclude that the officer had a constitutional basis for the stop, we reverse.



A police officer stopped respondent Joseph Capistrant’s car after following it for between half a mile and three quarters of a mile and seeing it repeatedly weave in its lane.  She then administered a preliminary breath test.  A Rasmussen hearing was held on the constitutionality of the stop and the basis for the breath test.  The district court credited the officer’s testimony as to the circumstances of the stop but determined that the stop was unconstitutional.  An appellate court reviews the district court’s factual findings under the clearly erroneous standard, but independently reviews the district court’s legal determination.  State v. Wiernasz, 584 N.W. 2d 1, 3 (Minn. 1998).  

            The officer testified that respondent “was swerving within his southbound lane,” that he drove “three, four inches onto the cement portion of the curb,” that respondent’s tires “hit the double yellow line,” that respondent honked his horn at a vehicle stopped in front of him at a red light, and that, when he drove on, his car “continued to swerve within its lane * * *.”  On cross-examination, the officer said that respondent had driven off the asphalt onto the cement portion of the curb “at least three [times]” and that “approximately half” his car was actually on the cement.

 The district court said, “I accept [the officer’s] testimony that she saw some swerving, approximately the way she described it * * * “and “I find her testimony credible that she saw [respondent’s] wheels go onto the horizontal part of the curbing at some point.” 

The officer also testified that, although there was construction in the area, it was “not in that portion that we were on” but “was off to the side” and would not have had an impact on a driver or required a driver’s attention.  A witness who had been a passenger in respondent’s car, however, testified that the construction made it “very challenging to determine where exactly they wanted [drivers to go,]” that “[t]here were cones everywhere[,]” and that respondent “could not drive straight down the road.”  The district court acknowledged the conflicting testimony about the construction:  “I can’t sort out from this evidence what the state of the construction was” and “[I could not establish] a real clear idea of what the state of construction was at the very points where [the officer] said she saw the car swerving.”

            Despite its acceptance of the officer’s testimony on respondent’s swerving and its inability to form a clear idea of the role of construction, the district court used the construction as the basis for its legal determination that the officer lacked probable cause to stop respondent. After stating that the officer had an insufficient basis for the stop, the district court continued:

            Had there been no construction or had I had a better – a clearer picture here of exactly where the construction was, the result might be different, and the case is very close.


The district court discussed five published decisions dealing with stops of cars observed weaving within one lane: State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (stop justified when car was “weaving and proceeding at a slow speed”); State v. Ellanson, 293 Minn. 490, 491, 198 N.W.2d 136, 137 (1972) (when car was weaving within its lane, officer “had a right to stop [driver] in order to investigate the cause of the unusual driving”); State v. Dalos, 635 N.W.2d 94, 96 (Minn. App. 2001) (“continuous weaving within one’s own lane is sufficient by itself to * * * support a traffic stop”); State v. Brechler, 412 N.W.2d 367, 368-69  (Minn. App. 1987) (stop not justified when officers “saw only that a car swerved on the road”), and  Warrick v. Comm’r of Pub. Safety, 374 N.W.2d 585, 585 (Minn. App. 1985) (stop not justified where officer observed car “weaving slightly within [its] lane * * * on a windy night when there was impaired visibility”).[1]

Our reading of these cases compels the conclusion that the stop of respondent was justified.  Ellanson established the general rule that continuous weaving within one lane will justify a stop. See State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (citing Ellanson for proposition that stop is justified when officer “observes a driver weaving within his lane in an erratic manner”); Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 923 (Minn. App. 2000) (citing Ellanson for proposition that officer had right to stop driver whom officer observed swerving within one lane).  The supreme court in Engholm and this court in Dalos applied that rule.  This court found exceptions to the rule in Brechler (single swerve does not justify stop) and in Warrick (slight weaving on windy night with low visibility does not justify stop), but no such exception exists here.   The officer credibly testified that she observed respondent weave repeatedly within his own lane; on that basis, the stop was justified. 


[1] The district court also referenced Shull v. Comm’r of Pub. Safety, 398 N.W. 2d 11,14 (Minn. App. 1986) (stop justified when car was traveling at slow speed and weaving over the center line of snow-packed, icy road), but that case is distinguishable because the weaving was not within one lane.