This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
David Gerald Adelmann,
Filed January 31, 2006
Affirmed; motion granted
Isanti County District Court
File No. K3-04-64
Mike Hatch, Attorney General,
Jeffrey Edblad, Isanti County Attorney, Thad N. Tudor, Assistant County Attorney, Scott E. Haldeman, Certified Student Attorney, 555 – 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
Michael J. Brandt, Jonathan N. Jasper, Jasper & Brandt, P.L.L.C., 303 Anoka Professional Building, 403 Jackson Street, Anoka, MN 55303 (for appellant)
Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
David Adelmann appeals from his conviction of second-degree test refusal, arguing that the district court erred by admitting evidence obtained when a deputy sheriff stopped his vehicle. Based on the totality of the circumstances and because the officer observed Adelmann’s car in the course of two driving violations, the district court properly denied the suppression motion based on its conclusion that the officer had a reasonable, articulable suspicion to stop Adelmann’s car. We affirm.
F A C T S
As the officer’s patrol car neared the parked car, the car moved forward. The driver executed a three-point turn and began traveling east. The officer stopped his patrol car to allow the other car’s driver to execute the three-point turn. After the driver completed the turn, the car went onto the grassy shoulder of the roadway, returned to the roadway, stopped at the stop sign where the road intersects with Highway 47, and continued east. The officer also made a three-point turn and followed the car. After the car cleared the intersection, the officer stopped the car.
The officer requested the driver’s license, which identified the driver as David Adelmann. Based on the smell of alcohol, the presence of a partially consumed bottle of liquor, Adelmann’s slurred speech, and the results of field sobriety tests, the officer arrested Adelmann for driving while impaired. Adelmann refused to submit to a breath test at the police station, and the state charged him with second-degree test refusal.
Following a contested omnibus hearing, the district court concluded that the officer had a reasonable, articulable basis to stop Adelmann’s car and denied Adelmann’s motion to suppress evidence obtained from the stop. The district court based its determination on the totality of the circumstances, including the attempt-to-locate dispatch. But the court stated that Adelmann’s driving violations, a three-point u-turn that impeded traffic and driving on the grassy area adjacent to the roadway, provided a sufficient independent basis for the stop. Adelmann was convicted of second-degree test refusal. In this single-issue appeal, Adelmann challenges the district court’s decision to admit evidence obtained as a result of the investigatory stop of his car.
D E C I S I O N
The Fourth Amendment to the United States
Constitution and Article I of the Minnesota Constitution provide protection
against unlawful searches and seizures. U.S.
Const. amend. IV;
To establish a reasonable suspicion justifying
a stop, the state must show that the officer “had a particularized and
objective basis for suspecting the particular person stopped of criminal
activity.” State v. Pike, 551 N.W.2d 919, 921 (
district court concluded that the officer’s observation of Adelmann’s traffic
violations justified the stop of his car.
The evidence supports this conclusion. The
first traffic violation occurred when Adelmann made a three-point turn on the
roadway to proceed in the opposite direction.
second violation occurred when Adelmann drove on the shoulder rather than the
traveled portion of the roadway. The
district court found that “[a]fter completing the u-turn the vehicle drove off the roadway, onto
the shoulder, and then back onto the roadway.”
A driver is required to drive on
Adelmann argues that the district court erred by finding that his car left the roadway. But the officer provided uncontradicted testimony that he saw Adelmann, after completing his turn, leave the roadway and drive onto the grassy area adjacent to the roadway. This testimony is sufficient to establish that Adelmann violated Minn. Stat. § 169.18, subd. 1. Nothing in the statutory definitions requires that a shoulder be clearly marked to qualify as a shoulder. In these circumstances, the driving maneuver was more a technical infraction than a dangerous diversion. But the driving conduct, like the three-point turn impeding the officer’s forward movement, is nonetheless a traffic violation.
These observed traffic violations are
independently sufficient to justify an investigatory stop. In addition, the district court relied on the
officer’s articulated suspicion that the atypical circumstances of a stopped
car on a relatively untraveled roadway in the early hours of a January morning
might relate to the earlier attempt-to-locate dispatch. This suspicion of a possible connection
deepened when Adelmann attempted to drive away as the officer’s car approached
his car on
this case was pending on review, Adelmann moved to strike a two-page letter
from the appendix of the state’s appellate brief. The letter, issued by the Minnesota
Department of Public Safety, was neither filed in the district court nor admitted
as an exhibit. Appellate courts may not
consider matters outside the record on appeal, and we grant the motion to
Affirmed; motion granted.