This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1490, A05-1840

 

State of Minnesota,
Respondent,

vs.

Ted Rogus,
Appellant,

and

Ted Edward Rogus, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed August 15, 2006

Affirmed

Wright, Judge

 

Roseau County District Court

File No. T5-04-783

 

Marshall County District Court

File No. C5-05-72

 

 

David D. Dusek, Hammarback, Dusek & Associates, P.L.C., 712 DeMers Avenue, P.O. Box 4, East Grand Forks, MN† 56721 (for appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN† 55101; and

Michelle E. Moren, Roseau County Attorney, 606 Fifth Avenue Southwest, #10, Roseau, MN† 56751 (for respondent State)

 

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN† 55101 (for respondent Commissioner)

 

††††††††††† Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D† O P I N I O N

WRIGHT, Judge

††††††††††† In consolidated appeals, appellant challenges his gross-misdemeanor conviction of driving in violation of a restricted driverís license and the denial of his petition for reinstatement of his driverís license.† Appellant argues that the district court erred when it determined that (1) inquiry into alcohol use during a routine traffic stop did not exceed the scope of the initial stop, (2) the circumstances of the stop did not constitute custodial interrogation, and (3) appellant was not entitled to an implied-consent advisory or to advice of counsel prior to submitting to a preliminary breath test.† We affirm.

FACTS

On July 20, 2004, a state patrol officer stopped appellant Ted Rogus for driving 70 miles per hour in a 55-mile-per-hour zone.† The officer could smell alcohol on Rogus and noticed beer cans in the back seat of the car.† The officer told Rogus he would be cited for speeding.† The officer returned to the patrol car and ran a check of Rogusís driverís license.† The driverís-license check revealed that Rogus had a restricted driverís license requiring him to abstain completely from alcohol or other drug use, even when not driving.† The officer returned to Rogusís car and asked Rogus whether he had recently used alcohol.† Rogus admitted that he had consumed four beers the previous day.† The officer then performed several field sobriety tests, which Rogus ďdid not do wellĒ on.† The officer asked Rogus to take a preliminary breath test (PBT), the results of which indicated an alcohol concentration of 0.055.† The officer did not read an implied-consent advisory to Rogus prior to administering the PBT or give Rogus a Miranda warning during the stop.† Rogus was cited for speeding and for violating the restrictions on his driverís license.††

Rogus moved to suppress evidence from the traffic stop, arguing that (1) the investigation of his alcohol use impermissibly exceeded the scope of the initial stop, (2) his statements about alcohol use were elicited in violation of the Fifth Amendment to the United States Constitution, and (3) he was entitled to an implied-consent advisory and/or advice of counsel before submitting to the PBT.† The district court denied the motion, and the matter proceeded to a bench trial.† The district court convicted Rogus of speeding, a violation of Minn. Stat. ß 169.14 (2002), and of violating the restrictions on his driverís license, a violation of Minn. Stat. ß 171.09(b)(1) (2002).†

Rogus also was the subject of an administrative proceeding.† The officerís report about the July 20 traffic stop was forwarded to the Department of Public Safety, resulting in the cancellation of Rogusís driverís license under Minn. Stat. ßß 171.04, 171.14 (2002).† Rogus sought judicial review of the driverís-license cancellation.† The district court denied his petition for reinstatement of his driverís license.†

Rogus appealed both the district courtís denial of his motion to suppress and its denial of his petition for reinstatement, which we consolidated.

D E C I S I O N

I.

In both his criminal and civil appeals, Rogus argues that the district court erred when it failed to exclude evidence obtained during the traffic stop because the officer impermissibly investigated his alcohol use, did not provide a Miranda warning before asking questions about his alcohol use, and did not read him an implied-consent advisory or advise him of the right to counsel before administering the PBT.† When reviewing a pretrial order denying a motion to suppress evidence where the facts are undisputed and the district courtís decision is a question of law, we conduct a de novo review to determine, in light of the facts, whether the evidence must be suppressed as a matter of law.† State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

A.

††††††††††† The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution protect against unreasonable searches and seizures.† To conduct a stop for limited investigatory purposes, an officer must have reasonable, articulable suspicion of criminal activity.† State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80 (1968)). †A valid traffic stop may become invalid if it exceeds the scope of the officerís initial reasonable suspicion.† State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004).† Accordingly, an intrusion not closely related to the initial justification for the stop is invalid under the Minnesota and United States constitutions unless there is independent probable cause or reasonable suspicion to justify the intrusion.† Id.

††††††††††† Because he was initially stopped for speeding, Rogus argues that the officerís subsequent questions about his alcohol use were not justified by independent reasonable, articulable suspicion.† He claims that, because the officerís investigation violated the Fourth Amendment, the information obtained should have been excluded from the criminal trial and administrative proceedings. †This argument is without merit.

The officerís written field report states that, prior to discovering the restriction on Rogusís driverís license, the officer ďhad noticed a faint odor of an alcoholic beverage coming from Rogus or his vehicle.Ē† The officer also testified to this fact at trial.† The odor of alcohol in a vehicle provides reasonable suspicion of criminal activity sufficient to expand the scope of an initially unrelated traffic stop.† State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001), review denied (Minn. Sept. 25, 2001).† Moreover, the field report states that the officer ďhad noticed beer in the back seat area of the car when [he] stopped Rogus.Ē† These facts provide ample support for expansion beyond the initial scope of the stop.

Rogus argues that the officer could not have smelled alcohol during the stop because Rogus was chewing gum and smoking a cigarette.† The officer was the only witness at trial and was cross-examined on this point by Rogusís counsel.† The district court clearly found the testimony of the officer credible.† Minn. R. Civ. P. 52.01 (credibility determinations are for district court in ďall actions tried upon the facts without a juryĒ).† Because credibility determinations are the exclusive province of the trier of fact, State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), affíd, 508 U.S. 366, 113 S. Ct. 2130 (1993); State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988), we will not substitute our judgment as to credibility for that of the district court.† Thus, Rogusís challenge to the witnessís credibility is unavailing here.† Rogus, therefore, is not entitled to relief on this ground.

B.

††††††††††† The officer did not read a Miranda warning during the traffic stop.† The district court determined that Rogus was not entitled to a Miranda warning under the circumstances.† Rogus claims that this determination by the district court was erroneous and that his statements about his alcohol consumption should have been excluded from the criminal trial and the administrative proceeding.†

A Miranda warning is required when a defendant is subject to custodial interrogation.† Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).† Rogus claims that he was in custody when the officer asked him about his drinking because the officer had not yet handed Rogus his speeding citation.† Minnesota follows the custody test adopted in Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984). The test is not whether a reasonable person would believe that he or she was not free to leave but whether a reasonable person under the circumstances would believe that he or she was in custody to the degree associated with formal arrest.† State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995); State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991) (citing Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151).† The Minnesota Supreme Court has noted that the following factors may indicate that a suspect is in custody: (1) an officer interviewing the suspect at the police station; (2) an officer telling the individual that he or she is the prime suspect; (3) restraint on the suspectís freedom imposed by an officer; (4) the suspect making a significantly incriminating statement; (5) the presence of multiple officers (six); and (6) an officerís gun pointing at the suspect.† State v. Staats, 658 N.W.2d 207, 211 (Minn. 2003).† One or more of the following circumstances may indicate that a suspect is not in custody: (1) an officer conducting questioning at the suspectís home; (2) an officer expressly informing the suspect that he or she is not under arrest; (3) the suspect leaving the police station without hindrance at the close of the interview; (4) the brevity of questioning (fifteen minutes); (5) the suspectís freedom to leave at any time; (6) a nonthreatening environment; and (7) the suspectís ability to make phone calls.† Id. at 212.

Examining these factors, Minnesota courts have held that, when temporarily detained pursuant to an ordinary traffic stop, a driver is not in custody for purposes of Miranda.State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986); State v. Voigt, 486 N.W.2d 793, 795 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).† Rogus neither cites any authority, nor are we aware of any, to support his assertion that the officerís failure to hand him a speeding citation converted the routine traffic stop into a situation in which he was restrained in a manner comparable to a formal arrest.† Rogus never left his own car, interacted with only one officer, and was never restrained in any way.† Because Rogus was not in custody at the time he made statements to the officer, he was not entitled to receive a Miranda warning.† Thus, the district court properly denied his motion to suppress on this ground.

C.

The Minnesota Constitution provides a limited right to counsel at the chemical-testing stage of an alcohol-related driving proceeding.† Friedman v. Commír of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991).† Rogus argues that this right also applies at the PBT stage.† Rogus claims that, because the officer did not read an implied-consent advisory or advise Rogus that he could consult with an attorney before the PBT was administered, the results of the PBT should have been excluded from both the criminal and administrative proceedings.

Rogusís claim is contrary to governing caselaw in Minnesota.† The facts here are virtually identical to those in State v. Stoskopf, 644 N.W.2d 842 (Minn. App. 2002).† Stoskopf was stopped for speeding.† Id. at 843.† The officer smelled alcohol, discovered that Stoskopf had a restricted driverís license, and asked Stoskopf to submit to a PBT.† Id. at 843-44.† In Stoskopf, we held that neither the right to an implied-consent advisory nor the limited right to counsel attaches when a defendant is given a PBT; and the only issue is whether a driverís-license restriction has been violated.† Id. at 847.† Although Rogus cites Friedman in support of his argument that the right to counsel should attach to the PBT, the same argument was rejected in Stoskopf.† Id. at 846 (ďThe supreme court in Friedman could have, but did not, recognize a right to counsel attaching at the PBT stage rather than the implied-consent stage.Ē).† Because this case cannot be distinguished from Stoskopf, the district court correctly denied Rogusís motion to suppress on this ground.

As we have noted, Rogus also argues that the evidence of his alcohol use should have been excluded from the administrative proceedings under Minn. Stat. ß 171.19 (2002).† But as described above, Rogusís claims of error have no merit.† Moreover, the constitutional violations Rogus alleged, had they occurred, would not have entitled him to exclusion of the evidence from the administrative proceeding.† The exclusionary rule does not prevent evidence obtained in an unconstitutional manner from being used in proceedings under Minn. Stat. ß 171.19 to cancel a driverís license.† Ascher v. Commír of Pub. Safety, 527 N.W.2d 122, 126 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).

II.

††††††††††† We next address Rogusís appeal of the district courtís denial of his petition for reinstatement of his driverís license.† We ďwill not reverse a license determination unless [we] find[] that it is unsupported by substantial evidence or is arbitrary and capricious.Ē† Thorson v. Commír of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994).† Rogusís case was submitted to the Commissioner of Public Safety on stipulated facts.† Rogus never disputed that he consumed alcohol in violation of the restrictions on his driverís license.† Cancellation of a restricted driverís license after failure to abstain is mandatory.† Minn. R. 7503.1700, subp. 6.† The record establishes that the district courtís determination is supported by substantial evidence and is neither arbitrary nor capricious.† Rogusís petition for reinstatement, therefore, was properly denied.

Affirmed.