This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,


Kent Michael Hamre,


Filed November 1, 2005


Stoneburner, Judge


Benton County District Court

File No. K3021593



Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Robert J. Raupp, Benton County Attorney, Courts Facility Building, 615 Highway 23, P.O. Box 189, Foley, MN 56329 (for respondent)


Todd V. Peterson, Peterson Law Office, 16 North Ninth Avenue, St. Cloud, MN 56303; and


David W. Buchin, Buchin Law Office, 16 North Ninth Avenue, St. Cloud, MN 56303 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges his convictions of first-degree DWI and giving a false name to police, arguing that he was illegally stopped, arrested without probable cause, questioned at the scene of the stop without being given a Miranda warning, and later questioned without a valid waiver of his Miranda rights.  Because there was probable cause for the stop and arrest, all unwarned statements were suppressed, and appellant validly waived his Miranda rights prior to further interrogation, we affirm.



            Minnesota State Trooper Richard Kitzmiller heard a dispatch concerning a personal-injury, hit-and-run accident in Sauk Rapids.  Kitzmiller went to the scene and spoke with Sauk Rapids police officer Erick Norsten, who had first responded to the scene where he found one vehicle with two occupants as well as vehicle parts and a license plate from a second vehicle that had left the scene.  The occupants of the vehicle at the scene were transported to the hospital by ambulance.  The vehicle that left the scene was described as a dark-colored Ford Explorer with likely damage to the left-front headlight, license number HRV-317, registered to Victoria Meleska.

            Kitzmiller soon spotted a dark-colored Ford Explorer with a damaged left-front headlight stopped at a stop sign at an intersection.  Kitzmiller let the vehicle pull in front of him and followed, verifying that the rear plate number matched the plate found at the scene of the hit-and-run accident.  Kitzmiller activated his lights to stop the vehicle, which was being driven very slowly.  It took several blocks for the driver to stop.  Appellant was the only occupant of the vehicle, and he started to get out of the vehicle as soon as he stopped.  Kitzmiller detected a strong order of an alcoholic beverage coming from inside the vehicle as he approached.  He asked appellant to step out and walk toward the squad car.  Kitzmiller immediately asked appellant why he left the scene of the accident.[1] 

            Kitzmiller attempted to perform a horizontal gaze nystagmus test on appellant, but stopped the test because he believed that appellant was not cooperating.  Kitzmiller arrested appellant on probable cause that he was the driver involved in the hit-and-run personal-injury accident and that he was driving while impaired.

            Norsten, who had arrived at the scene of the stop, took custody of appellant and transported him to the police department.  Norsten read the Miranda warning to appellant, asked appellant if he understood his rights, and interrogated him.  Appellant gave a false name and date of birth.  He said he was staying with the person who owned the Ford Explorer that he was driving.  Appellant stated he drank four or five alcoholic drinks at a bar and left the bar with three acquaintances he refused to name.  He stated that he was not driving at the time of the accident but refused to name the driver.[2] The entire interview was videotaped. 

            Norsten read the implied-consent advisory to appellant, who waived his right to consult with counsel and agreed to a breath test.  Norsten asked appellant if he would submit to a urine test.  The officer re-read the implied-consent advisory and appellant again said he did not want to speak to an attorney and agreed to take a urine test.  When asked if he had used methamphetamine that night, appellant told Norsten that he had smoked it.

            Norsten contacted the registered owner of the Ford Explorer.  She described appellant and the clothes he was wearing that night and stated that she had given him permission to use her Ford Explorer. 

            Appellant was charged with four counts of first-degree driving while impaired, giving a false name to a police officer and driving after cancellation.  Appellant moved to dismiss, challenging the legality of the stop, the arrest, and the voluntariness of statements he made at the scene and at the police station.  The district court ruled that the stop and arrest were legal and that, with the exception of appellant’s answer to Kitzmiller’s first question at the scene (suppression of which was not opposed by the state), appellant’s statements were voluntary and admissible.  Appellant agreed to submit the case to a court trial under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found appellant guilty of first-degree driving while impaired and giving a false name to a police officer.  This appeal of the district court’s pretrial rulings followed.



1.  The stop

            “In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.”  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  “In doing so, we review findings of fact for clear error, giving due weight to the inferences drawn from those facts by the district court.”  Id. (quotation omitted).  A stop may not be based on mere whim, caprice, or idle curiosity, but must be based on specific, articulable facts, which, taken together with the rational inferences from those facts, reasonably support the stop.  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996).  A violation of a traffic law, however insignificant, is an objective basis for a stop.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997). 

            In this case the district court found that the trooper’s observation of the non-functioning left headlight alone was a sufficient basis for stopping appellant, and noted that the trooper had additional suspicion based on the pre-stop match of the license plate number to the plate found at the scene of a hit-and-run, personal-injury accident.  Appellant, however, asserts that because of the length of time between the event and the omnibus hearing and Kitzmiller’s failure to make a report of the stop, his testimony that he observed the damaged headlight and matching plate number prior to the stop is unreliable or not credible and cannot support the district court’s findings.  But this court gives deference to the district court’s credibility determinations.  Thorud v. Comm’r of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984).  On cross-examination Kitzmiller explained why he did not file a report, and the district court found his testimony credible.  Because the district court’s findings are supported by Kitzmiller’s testimony, they are not clearly erroneous.

2.  The arrest

            “Probable cause to arrest exists where the objective facts are such that under the circumstances a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed.”  State, Lake Minnetonka Conserv. Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000) (alteration in original) (quotations omitted).  We review the district court’s findings of fact under the clearly erroneous standard, giving due weight to inferences drawn from the facts by the district court, and review de novo the legal conclusions of whether probable cause existed.  Id.

            This court has held that an officer need only have one objective indication of intoxication to constitute probable cause to believe a person is driving while impaired.  Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983).  And “roadside sobriety tests are not required to support an officer’s reasonable belief that a driver is [impaired].”  Id.  The district court found that Kitzmiller observed bloodshot eyes, poor balance and a smell of alcohol emanating from appellant.  The record does not support a finding that the trooper observed bloodshot eyes or poor balance, but on direct examination, Kitzmiller testified that there was a strong odor of alcohol coming from the vehicle as appellant got out, and on cross-examination he responded affirmatively to the question: “[Y]ou commented that you had smelled an odor of alcohol on [appellant]?”  On cross-examination Kitzmiller was also asked if bloodshot eyes and poor balance could be caused by something other than intoxication.  Based on the reasonable suspicion that appellant had recently fled the scene of a personal-injury accident, smelled of alcohol, and failed to cooperate with a sobriety test, we conclude that Kitzmiller had probable cause to arrest appellant for driving while impaired.

3.  Admissibility of statements

      a.  Statements made at scene of stop

            Appellant argues that the district court should have suppressed statements obtained at the scene of the stop because he was in custody and was not given a Miranda warning before he was questioned.  The only at-the-scene statement explicitly identified in the record as having been made by appellant was suppressed without objection.  The police report submitted to the district court referred to an admission by appellant that he had been drinking, but his DWI conviction related to methamphetamine use, so any error in failing to suppress that statement was harmless.  See State v. Burrell, 697 N.W.2d 579, 597 (Minn. 2005) (stating that erroneous admission of statements warrants a new trial unless the verdict was surely unattributable to the error (harmless error)).  Appellant has not identified any other statement he made at the scene or prior to the police-station interrogation that should have been suppressed.  We therefore find no merit in appellant’s assertion of error for failing to suppress statements made at the scene of the stop.

            b.  Statements made at police department after Miranda warning

            At the police department the officer read the Miranda warning to appellant and asked him if he understood the warning.  The district court’s determination that a waiver was knowingly, voluntary, and intelligent generally will not be reversed unless that finding is clearly erroneous.  State v. Camacho,561 N.W.2d 160, 168 (Minn. 1997).  A statement voluntarily made by a defendant after receiving a Miranda warning is not inadmissible based on earlier unwarned questioning that was not accompanied by coercion or other circumstances calculated to undermine the person’s ability to exercise his free will.  State v. Hendrickson, 584 N.W.2d 774, 778 (Minn. App. 1998).

            Appellant argues that the Miranda statement read to him at the police department was ineffective because it was read “very quickly” and the officer did not ask appellant whether he wanted to speak to an attorney or answer questions after the warning was read.  The supreme court has held that a defendant is not entitled to be warned, beyond receiving the standard Miranda warning, that he could stop answering questions at any time during an interrogation.  State v. Jones, 293 Minn. 443, 444, 196 N.W.2d 606, 607 (1972).  Appellant cites no authority for his assertion that, afterthe warning is read and a suspect indicates he understood the warning, an officer is obligated to inquire whether the suspect wants an attorney or wants to answer questions.  The videotape of the interview was admitted and shows that the officer read the entire standard warning somewhat quickly, but all of the words are intelligible, contrary to appellant’s characterization of the warning as “barely intelligible” and an “incomprehensible recitation of the Miranda rights.”  The district court’s findings that appellant received the warning, acknowledged understanding of his rights, and never asserted a desire to speak to an attorney are supported by the record and not clearly erroneous.


[1] Appellant’s response, that he was not driving at the time of the accident, was suppressed without objection.  It is the only statement identified in the record as having been made by appellant at the scene of the stop. 

[2] Later appellant gave the name of the driver, but when told that this person would be arrested, recanted the statement.