This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed March 1, 2005
Robert H. Schumacher, Judge
Greg Widseth, Polk County Attorney, Tracey L. Knutson, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)
Kevin T. Duffy, 1008 West Second Street, Post Office Box 715, Thief River Falls, MN 56701 (for appellant)
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Shane Lee Voss challenges his conviction of fourth-degree driving while intoxicated under Minn. Stat. § 169A.20, subd. 1(5) (2002) following a trial conducted pursuant to the procedure outlined in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Voss argues the district court erred in not dismissing the charge because the evidence against him was obtained after the initial scope of the stop was unconstitutionally expanded. We affirm.
On July 13, 2003, shortly after midnight, Polk County Deputy Sheriff Randy Sondrol asked McIntosh Police Chief Willis Ihrke to keep a lookout for a red Ford Escort whose occupants were suspected of having been involved in an altercation at the Polk County Fair in Fertile, Minnesota during which a "bat-type weapon" was used to damage a vehicle. Sondrol indicated that the occupants of the vehicle were thought to be Voss, Alison Schmidtgall, and two other individuals. Sondrol requested that if Ihrke spotted the vehicle he identify the occupants, search the vehicle for a bat-type weapon, and question the occupants regarding the incident.
Approximately 30 minutes later, Ihrke stopped the vehicle. At the time of the stop, Voss was driving and Schmidtgall was the sole passenger. Ihrke was familiar with both individuals and knew that Schmidtgall was under the age of 21. Ihrke believed that in order to adequately search the vehicle for a bat-type weapon he needed to have both occupants exit the vehicle because the bat-type weapon could have been hidden from his view under the seats, between the individuals' feet, behind the individuals' legs, or beside the door. Ihrke ordered Voss and Schmidtgall out of the vehicle and placed them both in the back seat of his squad car.
Ihrke then returned to Voss's vehicle to search for the weapon. As he approached the vehicle, he noticed an open beer can in an upright position on the ground behind the front passenger-side tire. Ihrke conducted a visual inspection of the vehicle for the bat-type weapon but did not find it or conduct any additional searches. No bat-type weapon was ever found. He picked up the beer can and returned to his squad car.
Once in the squad car, Ihrke noticed the odor of an alcoholic beverage coming from both individuals. He later testified that prior to this point he had not been close enough to either Voss or Schmidtgall to detect the odor. Ihrke also testified that he noticed Voss's eyes were bloodshot. Based on the open can of beer, the odor of an alcoholic beverage, and Voss's bloodshot eyes, Ihrke believed that Voss was under the influence of alcohol. A preliminary breath test indicated Voss's blood-alcohol content exceeded .10, and Ihrke arrested him for driving under the influence of alcohol. A Breathalyzer test later determined Voss's blood-alcohol content was .11.
Voss was charged with fourth-degree driving while impaired under Minn. Stat. § 169A.20, subd. 1(5) (2002) and violation of the open-bottle law, Minn. Stat. § 169A.35, subd. 3. Voss moved the district court to dismiss the charges because Ihrke impermissibly expanded the scope of the stop when he ordered the occupants out of the vehicle and again when he placed the occupants in the rear of his squad car. The district court denied the motion, concluding that Ihrke was justified in ordering Voss and Schmidtgall out of the vehicle so that he could properly search for the bat-type weapon and that because Voss and Schmidtgall were suspected of having recently been involved in a "potentially violent crime," Ihrke was justified in placing them in his squad car for his own safety. The charge of possession of an open bottle was later dismissed. The DWI charge was submitted to the district court based on stipulated facts and the court found Voss guilty of fourth-degree driving while intoxicated.
"When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing – or not suppressing – the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). This court accepts the district court’s findings of fact unless they are clearly erroneous. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).
Voss argues that the scope of the stop was impermissibly expanded when Ihrke ordered him out of his car to conduct a search and again when Ihrke confined him in the squad car. Voss has made no attempt to argue that the stop was illegal and we deem any question regarding the legality of the stop to be waived. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating issues not briefed are waived), review denied (Minn. Aug. 5, 1997).
The Minnesota Supreme Court has recently reaffirmed the longstanding rule that a "police officer may order a driver out of lawfully stopped vehicle without an articulated reason." State v. Askerooth, 681 N.W.2d 353, 367 (Minn. 2004). Although Ihrke did not need an articulable reason to order Voss out of the vehicle, the district court found that "in order to properly conduct the search for the bat-type weapon, [Ihrke] was justified in requesting the individuals step out of the vehicle." We conclude Ihrke did not impermissibly expand the scope of the stop when he ordered Voss out of the car.
Regarding the expansion of the scope of the stop, both parties point to case law dealing with the expansion of a stop for a minor traffic violation; however, Ihrke stopped Voss not because of a minor traffic violation but to search the car for a weapon used to damage property, and thus we consider whether Ihrke's confinement of Voss was a proper incident of a search of the vehicle for a weapon. See State v. Gallagher, 275 N.W.2d 803, 806 (Minn. 1979) (stating police officer has probable cause "where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a reasonable man of reasonable caution in the belief that the automobile contains articles the officer is entitled to seize" (citations omitted)); see also State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (stating appellate courts have responsibility "to decide cases in accordance with law, and that responsibility is not to be diluted by counsel's oversights, lack of research, failure to specify issues, or to cite relevant authorities" (quotation omitted)).
In determining whether Ihrke's conduct in confining Voss was constitutional, we consider whether the action was reasonable. See State v. Munson, 594 N.W.2d 128, 135-36 (Minn. 1999) (holding that vehicle search supported by probable cause must nonetheless be reasonable in scope of search and detention of suspects). Whether the detention of a suspect is reasonable is determined under the particular facts and circumstances of each case. Id. at 136.
Here, the district court determined that Ihrke was justified in confining Voss for the officer's safety because "the individuals were suspected of having recently been involved in a potentially violent crime with a possible bat-type weapon." Because the district court found that Ihrke had legitimate concerns for his safety, we conclude it was reasonable under the circumstances for Ihrke to confine Voss in the back seat of a squad car while a search for the bat-type weapon was conducted and, therefore, confining Voss in the back seat of the squad car did not impermissibly expand the scope of the stop. See Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595 (1981) (stating lawful search of home "implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted"); Munson, 594 N.W.2d at 137 (holding where police officers have legitimate concerns for their safety, it is reasonable for officers to approach vehicle with weapons drawn, remove the occupants from the vehicle, frisk them, place them in the back seat of squad car and even handcuff them briefly); see also Askerooth, 681 N.W.2d at 370 (stating confinement in the back seat of a squad car of a driver stopped for a minor traffic violation is "justified if it is reasonably related to . . . a threat to officer safety").
Ihrke returned to his car to inform the individuals why they had been stopped, to question them about their involvement in the altercation, and to question them about the open can of beer he had found outside the vehicle, and thus there was a continued basis to detain Voss. See id. at 365 n.7 (stating officer may continue to detain driver of lawfully stopped vehicle "as long as reasonably necessary to effectuate the purpose of the stop"); see also State v. Fort, 660 N.W.2d 415, 417 (Minn. 2003) (stating continued detention is reasonable where officers obtain reasonable suspicion that occupant of vehicle was engaged in other criminal activity). During this lawful detention, Ihrke detected the odor of an alcoholic beverage coming from Voss.
Voss makes vague reference to the issue of Ihrke's basis to administer the preliminary breath test. Minn. R. App. P. 128.02, subd. 1(b) unambiguously requires an appellant's brief to contain a "concise statement of the legal issue or issues involved." The only issue listed in Voss's brief is whether or not the scope of the stop was impermissibly expanded. We also find his statement that Ihrke had no reason to believe that Voss was driving under the influence of alcohol to be inadequately supported by legal argument and wholly without merit. See State v. Modern Recycling, 558 N.W.2d 770, 772 (Minn. App. 1997) (unsupported argument is deemed waived unless prejudicial error is obvious on mere inspection); Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983) (stating police officer need only have one objective indicia of intoxication—including odor of alcohol or bloodshot eyes—to support probable cause to believe person is under influence of alcohol).