may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
Peggy Louise Burbach,
Winona County District Court
File No. KX04204
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Mn 55101; and
Charles E. MacLean, Winona County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for appellant)
Richmond H. McCluer, Jr., John P. Plachecki, Price, McCluer & Plachecki, 59 West Third Street, Winona, MN 55987 (for respondent)
Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a pretrial order suppressing evidence and dismissing charges of fifth-degree controlled-substance crime, possession of drug paraphernalia, and two counts of fourth-degree driving while impaired (DWI), the state argues that the district court erred in ruling that by searching respondent’s car, the officer who stopped respondent for speeding impermissibly expanded the scope of the stop beyond the underlying justification for the stop. Because the odor of alcohol coming from the car gave the officer probable cause to believe that a search of the passenger compartment would reveal open bottles or cans of alcohol, we reverse and remand.
While on routine patrol, Officer Adam Brommerich met an oncoming car that radar indicated was traveling 55 miles per hour in a 30-mile-per-hour zone. Brommerich turned his squad car around and caught up with the car. He activated his emergency lights, and the car pulled over after traveling in the parking lane for about one block.
As he approached the car, Brommerich realized that the license plate might match a car that, according to a tip that Brommerich had received from narcotics officers, was being used to transport crack cocaine. Brommerich saw two people in the car and asked the driver for identification. The driver identified herself as respondent Peggy Louise Burbach, and Brommerich recognized the name from the tip. Brommerich asked respondent for insurance information, and respondent said that she had insurance but did not have any proof with her.
While speaking with respondent, Brommerich detected a strong odor of alcohol coming from the driver’s window, but he could not determine whether it was coming from respondent or the passenger. When asked, respondent denied that she had been drinking. The passenger said that the odor of alcohol came from him because he had been drinking earlier. Brommerich asked respondent to step out of the vehicle, and he was unable to smell any alcohol coming from respondent after she got out of the vehicle.
Respondent submitted to a preliminary breath test (PBT), and the result was .000. Brommerich conducted a horizontal-gaze nystagmus test and observed no signs of horizontal or vertical nystagmus. Respondent’s eyes appeared to be constricted, but Brommerich testified at the omnibus hearing that any difference between respondent’s eyes and what one would expect to be normal was minimal. Respondent’s eyes were not bloodshot or watery, she had no problems related to balance or in following his directions, and although her speech was quite rapid, it was not slurred. Respondent was talkative and appeared restless, nervous, and fidgety.
Brommerich asked respondent if she had taken any medications recently or if she had used any drugs or narcotics. Respondent denied using drugs, but stated that she had taken Nyquil earlier. Brommerich then asked respondent if there were any open containers of alcohol or any illegal drugs in the car. Respondent denied that she had drugs in the car. About 15 minutes after the stop, Brommerich asked respondent if he could take a look into the car, and she consented to the search.
Before searching the car, Brommerich asked respondent to empty the contents of her pockets on the hood of his squad car. Respondent pulled out a piece of scouring pad with a burn mark on it. Brommerich testified that a piece of scouring pad is commonly used as a filter in a crack-cocaine pipe.
Another officer who had arrived on the scene removed the passenger from the car, and when Brommerich opened the driver’s door, he immediately saw three plastic bags on the passenger seat that each contained a white substance that appeared to be crack cocaine. Both respondent and the passenger were arrested, and the car was impounded and inventoried.
After arriving at the law-enforcement center, respondent was read the implied-consent advisory and consented to an Intoxilyzer test. The test result was .000. During a body search of respondent, a deputy found a pipe and a rock of crack cocaine. Respondent was charged with fifth-degree controlled-substance crime (possession), failure to provide proof of insurance, speeding, possession of drug paraphernalia, and two counts of fourth-degree DWI. Respondent filed a motion to suppress the evidence seized as a result of the search of her vehicle.
During the omnibus hearing, Brommerich admitted that knowledge obtained from the tip made him more eager to search respondent’s vehicle and acknowledged that the request to search respondent’s car for illegal drugs or alcohol was not connected to the speeding offense. Brommerich also testified that before he asked respondent to empty her pockets, he had no specific facts that indicated that respondent possessed a weapon.
Following the omnibus hearing, the district court concluded that because (1) Brommerich’s initial suspicion of alcohol impairment proved to be without merit or credibility after respondent passed numerous preliminary sobriety tests; and (2) Brommerich failed to provide any reasonable, articulable, suspicion of criminal activity beyond that used for the traffic stop, Brommerich impermissibly expanded the scope of the traffic stop. The district court specifically discredited the testimony regarding the tip that respondent’s vehicle was being used to transport crack cocaine because there was no information about the source of the tip, when the tip was received, or whether the tip was corroborated. The court also found that Brommerich had no specific information or suspicion that the vehicle contained controlled substances when it was stopped. The district court granted respondent’s motion to suppress and dismissed all charges except the charges for speeding and failure to provide proof of insurance.
When the state appeals a pretrial order that suppresses evidence, it must clearly and unequivocally show that the trial court’s order will have a critical impact on the state’s ability to successfully prosecute the defendant and that the order constituted error. State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id. “Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). “In the absence of critical impact we will not review a pretrial order.” In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999).
Because the likelihood of successfully prosecuting respondent for controlled- substance crime, possession of drug paraphernalia, or fourth-degree DWI is significantly reduced if the evidence obtained by searching respondent’s car is suppressed, the district court order suppressing the evidence will have a critical impact on the state’s ability to successfully prosecute respondent. See State v. Kolb, 674 N.W.2d 238, 240-41 (Minn. App. 2004) (concluding critical impact was established when suppression of drug evidence resulted in dismissal of controlled-substances crimes), review denied (Minn. Apr. 20, 2004).
“[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
Article I, Section 10, of the Minnesota Constitution imposes a reasonableness limitation on both the duration and the scope of a Terry detention. State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002); see Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1879-80 (1968) (explaining standard for limited investigatory stop). Because of this constitutional mandate, the Minnesota Supreme Court recently adopted the principles and framework of Terry for evaluating the reasonableness of seizures during traffic stops even when a minor law has been violated. State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004).
“A Terry analysis involves a dual inquiry. First, we ask whether the stop was justified at its inception. Second, we ask whether the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place.” Id. at 364 (citation omitted). “An intrusion not closely related to the initial justification for the search or seizure is invalid under article I, section 10 [of the Minnesota Constitution] unless there is independent probable cause or reasonableness to justify that particular intrusion.” Id. (citing Terry, 392 U.S. at 20-21, 88 S. Ct. at 1879-80).
In essence, Article I, Section 10 of the Minnesota Constitution requires that each incremental intrusion during a traffic stop be tied to and justified by one of the following: (1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry. Furthermore, the basis for the intrusion must be individualized to the person toward whom the intrusion is directed.
Id. at 365.
Brommerich stopped respondent’s vehicle because it was speeding, and respondent does not contest the legality of the stop; she contests the legality of the search that occurred during the stop. Therefore, the issue before us is whether the search, which was an incremental intrusion during the traffic stop, was tied to and justified by (1) the original purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry.
The state argues that under State v. Schinzing, 342 N.W.2d 105, 109 (Minn. 1983), the odor of alcohol alone gave Brommerich probable cause to believe that a search of the passenger compartment would reveal open bottles or cans of alcohol. Therefore, the state argues, pursuant to the motor-vehicle exception to the warrant requirement, Brommerich was justified in searching anywhere in the passenger compartment where open bottles or cans might be found. See State v. Bauman, 586 N.W.2d 416, 422 (Minn. App. 1998) (stating officers may search vehicle under automobile exception to warrant requirement if officers have probable cause to believe search will produce evidence of a crime), review denied (Minn. Jan. 27, 1999).
In Schinzing, the supreme court concluded that police who stopped a vehicle after observing erratic driving and at least three minor traffic violations had probable cause to search the vehicle when an officer smelled alcohol coming from the interior of the vehicle. 342 N.W.2d at 106-07, 109. The district court concluded that this case could be distinguished from Schinzing because in Schinzing, the supreme court relied on State v. Veigel in concluding that the search of a vehicle for open bottles or cans was justified, and in Veigel, police observations before the search included seeing an open bottle inside the vehicle, which justified the search. 304 N.W.2d 900, 901 (Minn. 1981). The district court also concluded that the reasonable suspicion that respondent had been driving under the influence or committed an open-bottle violation was dissipated when Brommerich conducted tests that indicated that respondent was not intoxicated and her passenger said that he had been drinking earlier.
But these facts do not distinguish this case from Schinzing. Although it is true that in Schinzing, the supreme court relied on Veigel, and in Veigel, officers saw an open bottle in the car before they searched the car, nothing in the recitation of the facts in Schinzing indicates that police saw an open bottle or can in the car before they conducted a search. Instead, just as in this case, the officer who stopped the vehicle in Schinzing asked the driver to get out of the vehicle, and while the driver was in the back seat of a squad car, the officer smelled the odor of alcohol coming from inside the car and was told by passengers that they had been drinking. Schinzing, 342 N.W.2d at 107. The supreme court held that the officer’s “detection of the odor of alcohol coming from the car gave him probable cause to believe that a search of the passenger compartment would reveal open bottles or cans of alcohol,” and “[p]ursuant to the motor vehicle exception to the warrant requirement, [the officer] was justified in searching anywhere in the passenger compartment where those open bottles or cans might be found.” Id. at 109.
Because the officer in Schinzing did not observe any open bottles or cans in the vehicle before conducting a search, we see no basis for distinguishing this case from Schinzing, and we conclude that under Schinzing, Brommerich’s detection of the odor of alcohol coming from respondent’s car gave Brommerich probable cause to believe that a search of the passenger compartment would reveal open bottles or cans of alcohol. See also State v. Lopez, 631 N.W.2d 810, 815 (Minn. App. 2001) (stating that Schinzing held that “the mere odor of alcohol is sufficient to permit an officer to continue a stop and search a vehicle for an open bottle”), review denied (Minn. Sept. 25, 2001). Therefore, the incremental intrusion of the search was justified by independent probable cause and did not violate Article I, Section 10 of the Minnesota Constitution, and the district court erred by suppressing items found during the search.
Reversed and remanded.
 The passenger admitted that the cocaine in the car belonged to him.