This opinion will be unpublished and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
State of Minnesota,
Lorenzo C. Lockett,
Hennepin County District Court
File No. 05004376
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Jay Heffern, Minneapolis City Attorney, Paula J. Kruchowski, Assistant City Attorney, Dominick D. Mathews (certified student attorney), 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)
Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.
Appellant challenges the district court’s determination that the officer had reasonable suspicion to stop appellant’s vehicle and probable cause to arrest him for driving while impaired. Because the officer had reasonable suspicion to stop appellant’s vehicle when he learned that the vehicle’s license plates had been revoked, and because there were multiple indicia of intoxication supporting a finding of probable cause for an arrest, we affirm.
Appellant Lorenzo C. Lockett was convicted after a stipulated-facts bench trial for second-degree driving while impaired (DWI), a violation of Minn. Stat. § 169A.20, subd. 1 (2004), and failure to submit to a chemical test, a violation of Minn. Stat. § 169A.20, subd. 2 (2004). The district court conducted the stipulated-facts trial after a Rasmussen hearing on appellant’s motion to suppress evidence of the DWI stop and arrest. The district court denied the motion, finding that reasonable suspicion supported the stop and probable cause supported the arrest. Lockett appeals both determinations.
the early morning hours of January 22, 2005, it was snowing and traffic was
moving slowly. State Trooper Brian
Bammert was on routine patrol when he observed an SUV driving southbound on
Interstate 35W near downtown
The first two combinations of numbers yielded registration information that did not correspond to the vehicle that Bammert was trailing. But the third combination provided information about a black SUV that matched the make, model and year of the SUV that Bammert was following. The registration information revealed that the license plates for the SUV had been revoked. When the SUV exited the interstate, Bammert followed and stopped it on a side street.
Upon stopping the SUV, Bammert asked the driver, later identified as Lockett, to produce his driver’s license. Lockett admitted that he did not have a valid driver’s license. Bammert noticed a strong smell of alcohol coming from the passenger compartment of the vehicle. He requested that Lockett step out of the vehicle to determine whether Lockett smelled of alcohol. Lockett produced a Minnesota ID card, and as Bammert engaged Lockett in a conversation, Bammert detected a moderate smell of alcohol on Lockett’s breath and noticed that his eyes were watery. Lockett admitted to having a couple of drinks before getting behind the wheel.
Bammert decided to conduct a horizontal gaze nystagmus (HGN) field-sobriety test. Because of the snow accumulation and the proximity of the traffic lane, Bammert determined that conducting a walking test or balance test would not be appropriate. Bammert noticed that instead of a smooth response, Lockett’s eyes involuntarily jerked while trying to follow the stimulus. But Bammert also testified that Lockett’s speech was not slurred and his pupils were not dilated.
After completing the HGN test, Bammert placed Lockett in the back seat of the squad car; Bammert conceded that at this point Lockett was legally under arrest. Bammert ran Lockett’s driving record and found that his license was suspended, and that he had two prior alcohol-related driving offenses within the past ten years. When Lockett refused to supply a breath sample, Bammert notified Lockett that he was under arrest for DWI.
The first issue is
whether the district court erred in determining that reasonable, articulable
suspicion supported the stop of Lockett’s vehicle. It is well settled that “[a] brief
investigatory stop requires only reasonable suspicion of criminal activity,
rather than probable cause.” State v. Pike, 551 N.W.2d 919, 921 (
investigatory stop is valid if the officer “had a ‘particularized and objective
basis for suspecting the particular persons stopped of criminal
activity.’” State v. Kvam, 336 N.W.2d 525, 528 (
Bammert executed an electronic search of the vehicle’s license plate and
registration, which he conducted without any intrusion on Lockett’s freedom of
movement. The results of that search
disclosed that the plates were suspended for an insurance violation. This is the kind of minimal factual basis
that provides reasonable suspicion to conduct an investigatory stop of a
vehicle. See Pike, 551 N.W.2d at 922 (holding that where the officer knows
that the owner of the vehicle in question has a revoked license, there is
reasonable suspicion to make the investigatory stop). Moreover, the plate violation demonstrates
that the stop was not the product of “whim, caprice or idle curiosity.”
The second issue
is whether the district court erred in determining that Bammert had probable
cause to arrest Lockett for driving while impaired (DWI). A determination of probable cause is a mixed
question of fact and of law. Johnson v. Comm’r of Pub. Safety, 366
N.W.2d 347, 350 (
are many indicia of intoxication that may provide probable cause for an arrest,
whether they appear independently or in combination. Musgjerd,
384 N.W.2d at 573. The presence of a
single indicia is sufficient, depending on the circumstances of a particular case,
but mere suspicion of intoxication is insufficient.
an officer is not required to conduct field sobriety tests, the tests may
further expose indicia of intoxication and may be considered by the court. See
Shewchuk, 412 N.W.2d at 436-37. The
Minnesota Supreme Court has approved the use of the horizontal gaze nystagmus (HGN)
as an appropriate field sobriety test. State v. Klawitter, 518 N.W.2d 577, 585
Here, the district court
considered the following facts to find that probable cause supported Bammert’s
arrest of Lockett: (1) the odor of alcohol on Lockett’s breath; (2) Lockett’s
admission that he had a couple of drinks before driving; (3) Lockett’s watery
eyes; and (4) the results of the HGN test.
In State v. Driscoll, this
court found probable cause to arrest where the officer noted six indicia of
intoxication, including odor of alcohol, watery eyes, and inability to perform
the HGN test. 427 N.W.2d 263, 265 (
Lockett’s defense counsel argued that Bammert
did not have enough time to actually run all the plate numbers in the time
between first spotting Lockett’s SUV and stopping the vehicle. Rather, the defense argued, Bammert did not
run the plate and find the violation until after he stopped the vehicle, therefore
destroying reasonable suspicion for the stop.
The district court, finding Bammert’s testimony credible, determined
that Bammert had sufficient time to run the numbers and find the plate
revocation before stopping the SUV. The
fact-finder makes credibility determinations, which this court is reluctant to
reverse. See State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986) (“The trial
court acts as factfinder in weighing the credibility of the witnesses.”), review denied (
 A trained officer uses the HGN test to determine whether there is an involuntary jerking of the eyes when a stimulus, such as a pen, is moved back and forth in front of the driver’s eyes.