This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Christopher Todd Birkeland,




Filed November 25, 2003

Reversed and remanded
Klaphake, Judge


Hennepin County District Court

File No. 03024011



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Jay M. Heffern, City Attorney, Jennifer Saunders, Paula Kruchowski, Assistant City Attorneys, Minneapolis City Attorney’s Office, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402 (for appellant)


Douglas T. Kans, 1690 Interchange Tower, 600 South Highway 169, Minneapolis, MN  55426 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N


            The State of Minnesota appeals from the district court’s order dismissing a fourth-degree driving while impaired charge against respondent Christopher Todd Birkeland.  The state argues that the district court erred in determining that the stop of Birkeland’s vehicle was unlawful, where the officer testified that he effectuated the stop after observing the vehicle hesitate at a stoplight and then quickly accelerate when the light turned green and after observing a passenger extend his arms and head outside of the vehicle.  The state further argues that the district court erred in construing a city ordinance that prohibits extension of “any part of the body” outside a vehicle as referring only to the torso, not the head or arms.

            Because the district court erred in its construction of the city ordinance and because, considering the totality of the circumstances, the stop of the vehicle was legal, we reverse the district court’s order suppressing evidence and remand to reinstate the complaint.


            When, as here, the state appeals from a pretrial order suppressing evidence, this court “may independently review the facts and determine, as a matter of law, whether the district court erred.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  When the facts are not in dispute, this court need only determine whether the district court erred as a matter of law in suppressing the evidence.  State v. Robb, 605 N.W.2d 96, 99 (Minn. 2000).

            Here, the officer testified that at approximately 12:45 a.m., he saw a vehicle stopped at an intersection in the “frat row” area of the university campus.  The officer testified that when the light turned green, the vehicle remained stopped for two seconds before it lurched forward and started moving.  As the officer pulled up behind the vehicle, he saw one of the passengers hang his head and arms out the window, wave his arms around, and observed the passenger yell something at the pedestrians walking along the sidewalk.  At that point, the officer decided to stop the vehicle and speak to the driver, Birkeland.  The officer immediately observed several indicia of intoxication, including the odor of alcohol.  Birkeland was eventually arrested and charged with driving while impaired.

            At the suppression hearing, Birkeland challenged the legality of the stop.  The officer testified that during his training, he learned that an intoxicated driver often will not realize that a stoplight has turned green, will remain stopped, and then will unreasonably accelerate.  He testified that in this case, based on his observations, he believed that the driver was intoxicated.  He further testified that he believed that a city ordinance had been violated when the passenger hung his head and arms out the window.  The officer finally explained that the stop occurred at 12:45 a.m., and that peak driving time of intoxicated drivers on the university campus is between midnight and 3:00 a.m.

            The district court granted Birkeland’s motion to dismiss, concluding that the officer did not have an objective legal basis for suspecting Birkeland was intoxicated.  The court reasoned that Birkeland’s two-second pause at the stoplight was not out of the ordinary and that there were a number of possible explanations for his conduct other than intoxication.  The court further reasoned that the stop was not justified based on the passenger’s conduct because the passenger had only his head and arms out the window, not his torso, and no ordinance violation occurred.

            The state first argues that the district court misconstrued the city ordinance when it concluded that the language, “part of the body,” requires a passenger’s torso to extend outside of a vehicle.  We agree.  The ordinance at issue states in full:

474.370. Jumping rides.  No person shall ride in or jump into or upon any vehicle without the consent of the driver and no person shall, when riding, allow any part of the body to project beyond the limits of any motor vehicle, except when signaling as required, nor shall any person board or alight from, nor hang on to any motor vehicle when such motor vehicle is in motion.  This section shall not apply to any person whose employment makes it necessary to ride in or upon a vehicle otherwise than herein provided, when engaged in the necessary duties of such employment.


Minneapolis, Minn., Code of Ordinances § 474.370 (2003).  In concluding that this ordinance was not violated by Birkeland’s passenger, the district court stated:  “Reasonably construed, ‘body’ as set forth in the Ordinance refers to the torso.”  Given the plain language of the ordinance, the district court erred in concluding that “any part of the body” does not mean a person’s arms and head.

            The state further argues that the district court erred in concluding that the officer failed to articulate an objective legal basis for suspecting that Birkeland was intoxicated.  The ordinance violation was only one of the reasons articulated by the officer for stopping Birkeland’s vehicle; in order to determine the legality of the stop, we must consider the other reasons as well.  Those reasons include the time of night, location of the stop, and Birkeland’s conduct in pausing at an intersection after the light turned green, then lurching forward, which led the officer to believe, based on his training, that the driver was intoxicated.

            Police officers may evaluate the totality of the circumstances and draw inferences based on their knowledge, training, and experience that could escape an untrained person.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  A stop is valid if it is not “the product of mere whim, caprice, or idle curiosity.”  Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (quotation omitted).  Seemingly minor details may support an investigatory stop, and an actual violation of law is not necessary.  State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980); State v. Haataja, 611 N.W.2d 353, 354-55 (Minn. App. 2000), review denied (Minn. July 25, 2000).  The fact that other, innocent explanations might exist for a person’s driving conduct does not necessarily negate the officer’s reasons for the stop.  See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (noting that even though defendant’s behavior might have been consistent with innocence, that behavior also reasonably caused police to suspect that defendant was deliberately trying to evade them).

            When all the reasons articulated by the officer are considered, including (1) the ordinance violation by the passenger; (2) the time and location of the stop; and (3) the officer’s observation of Birkeland’s driving conduct, which, based on the officer’s training, was indicative of intoxication, we believe that the officer had a “particularized and objective basis” for suspecting that Birkeland was intoxicated.  See State v. Cripps, 535 N.W.2d 388, 391 (Minn. 1995).  The district court’s suppression order is therefore reversed, and the matter is remanded to reinstate the complaint.

            Reversed and remanded.