This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Timothy George Flynn, petitioner,





Commissioner of Public Safety,



Filed June 19, 2007


Halbrooks, Judge



Wright County District Court

File No. 86-C6-06-000200


Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)


Lori Swanson, Attorney General, James E. Haase, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)



            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the cancellation of his driver’s license, arguing that his rights under article I, section 10, of the Minnesota Constitution were violated when he was confined to the front seat of a patrol car during a normal traffic stop and that evidence of the arresting officer’s observations made during the confinement should therefore be suppressed.  We conclude that while appellant’s confinement was unreasonable and, thus, violated his constitutional rights, the officer’s observations should not be excluded.  We therefore affirm. 


            On October 3, 2005, at approximately 10:00 a.m., State Trooper Bordwell stopped appellant Timothy George Flynn for speeding.  Trooper Bordwell approached appellant’s vehicle, informed appellant that he had been stopped for driving too fast, and asked appellant to come back and sit in his patrol car while he wrote a citation.  Appellant complied with Trooper Bordwell’s request and sat in the front passenger seat of the patrol car. 

            Trooper Bordwell testified that he “could smell the light odor of alcoholic beverage coming from [appellant].”  In addition, appellant’s eyes were red, bloodshot, and watery.  Trooper Bordwell asked appellant if he had been drinking, and appellant responded that “he hadn’t drank anything since 2000” and that “it was coffee or mouth wash [that Trooper Bordwell] was smelling.”  Trooper Bordwell then asked appellant to step out of the patrol car so that he could perform field sobriety tests.  Trooper Bordwell testified that appellant had “four clues on HGN,” including “lack of smooth pursuit and nystagmus at extremes,” indicating “[t]hat there was some sort of alcohol in [appellant’s] system.”  Appellant also performed the “one-leg-stand” and “the 9-step heel-to-toe,” which Trooper Bordwell testified he “did fine.”  After asking appellant to get back into his patrol car, Trooper Bordwell administered a preliminary breath test, which showed an alcohol concentration of .063.  Trooper Bordwell asked appellant to move to the rear seat of his patrol car and proceeded to speak with appellant’s wife, who was a passenger in appellant’s vehicle.  Appellant’s wife told Trooper Bordwell that appellant had consumed a “few beers” the previous night, and after being confronted with his wife’s statement, appellant admitted to drinking a “couple beers the night before.”  Because appellant’s driver’s license was conditioned on his total abstinence from alcohol, Trooper Bordwell arrested appellant, in part, for driving in violation of that restriction and transported appellant to jail for booking. 

            Appellant’s driver’s license was subsequently canceled by the Commissioner of Public Safety on the ground that appellant was inimical to public safety.  After appellant petitioned to review the order of cancellation, the district court held a reinstatement hearing.  Appellant argued that his rights under article I, section 10, of the Minnesota Constitution were violated when he was confined to Trooper Bordwell’s patrol car.  Appellant also argued that if his constitutional rights were in fact violated, the evidence seized during the unlawful confinement should be suppressed pursuant to Minn. Stat. § 626.21 (2004).  The district court subsequently issued an order sustaining the cancellation of appellant’s driver’s license, concluding that (1) “[appellant’s] rights were not violated when Sergeant Bordwell asked him to sit in the front seat of the squad car,” and (2) “[e]ven if Sergeant Bordwell did violate [appellant’s] rights” by illegally seizing him, “the [c]ourt may not exclude Sergeant Bordwell’s observations” under section 626.21.  This appeal follows.  



            Appellant first argues that his constitutional rights were violated when Trooper Bordwell confined him to the front seat of his patrol car “during a routine traffic stop for a minor violation.”  Article I, section 10, of the Minnesota Constitution guarantees individuals the right to be free from unreasonable searches and seizures by the government of “persons, houses, papers, and effects.”  This court reviews de novo the district court’s determination of the legality of a limited investigatory stop.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  The district court’s findings are reviewed for clear error.  Id. 

Because it is undisputed here that Trooper Bordwell’s act of placing appellant in his squad car constituted a seizure, the primary issue is whether the seizure was reasonable.  In State v. Askerooth, 681 N.W.2d 353, 360 (Minn. 2004), the Minnesota Supreme Court “adopt[ed] the principles and framework of Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)] for evaluating the reasonableness of seizures during traffic stops even when a minor law has been violated.”  Askerooth, 681 N.W.2d at 363.  Whether a traffic stop is reasonable under the Fourth Amendment depends on whether the police have a reasonable, articulable basis for stopping the vehicle.  Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880.  Therefore, in determining whether Trooper Bordwell’s confinement of appellant in the front seat of his squad car was an unreasonable seizure in violation of article I, section 10, this court must conduct the following dual inquiry: (1) was the stop justified at its inception, and (2) were the actions of the police during the stop “reasonably related to and justified by the circumstances that gave rise to the stop in the first place.”  Askerooth, 681 N.W.2d at 364.  Appellant does not challenge the initial stop’s validity; therefore, the focus here is on the reasonableness prong of the Terry inquiry.   

“An initially valid stop may become invalid if it becomes ‘intolerable’ in its ‘intensity or scope.’”  Id. (quoting Terry, 392 U.S. at 17-18, 88 S. Ct. at 1878).  Thus, “each incremental intrusion during a traffic stop [must] be tied to and justified by one of the following: (1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness” to justify that particular intrusion, as defined in TerryId. at 365.  In addition, “article I, section 10 requires that the basis for justifying an intrusion during a minor traffic stop be individualized to the driver toward whom the intrusion is directed.”  Id. at 364.  As in Askerooth, “[b]ecause the confinement of [appellant] cannot be justified by [either] the original purpose of the stop or independent probable cause,” this court must determine whether the escalation was reasonable.  Id. at 365.  Therefore, the issue is whether Trooper Bordwell’s intensifying the intrusive nature of the seizure by confining appellant to his patrol car “was justified by some governmental interest that outweighed [appellant’s] interest in being free from arbitrary interference by law officers.”  Id.

The record indicates that Trooper Bordwell stopped appellant for speeding after determining that appellant was driving 67 miles per hour in a 55-mile-per-hour zone.  Trooper Bordwell approached appellant’s vehicle and informed appellant that he was stopped for “driving too fast.”  Trooper Bordwell took appellant’s driver’s license and stated to appellant, “[O]kay . . . why don’t you come on back, we’ll get you on out of here then.”  At the hearing, the following testimony was given:

Q         What do you mean you brought him on back?


A          I bring all the people back to have a seat in the front of my car, we talk, and then I write them a warning or citation, let them be on the road again.


Q         And why do you bring them back to the front of your vehicle?


A          Just the way I was been doing things and the way I was - - I’ve done it.  I was trained by some older guys up north in Thief River and that’s the way they did it, and that’s where I got trained from so I have kept the practice up.  I’m probably one of the few guys that still does it.  But I like chatting with people so that’s why I get ’em back. 


Q         Is there a reason you don’t do it while the individual is still in their vehicle?


A          What’s that?


Q         That you don’t chat with them while they’re in their vehicle?


A          A lot of times I don’t.  I just tell them why I stopped them, get their license or have them grab their license, proof of insurance, come on back, and then I’m off the road, they’re back with me, and we can sit and talk and I can get all the information from them then. 


Q         What do you mean you’re off the road?


A          I’m not standing on the edge of the road.  It’s a two-lane highway, so I just get off and get back.  It’s a safety thing, too.  Then I don’t have to make a second approach either.


            These facts are similar to those in the Minnesota Supreme Court’s decision in Askerooth.  In Askerooth, a police officer stopped the defendant shortly after midnight for failing to obey a stop sign.  681 N.W.2d at 356-57.  Upon learning that the defendant did not have a driver’s license, the officer asked the defendant to get out of his vehicle, conducted a pat-down search for weapons, and confined the defendant in the back seat of his squad car.  Id. at 357.  After receiving consent for and searching the defendant’s vehicle with the assistance of two other officers, the officer issued the defendant citations for the driving offenses and allowed the defendant to return home on foot.  Id.  The officer then searched the back seat of his squad car and found a film canister containing methamphetamine.  Id. 

            Defendant was subsequently charged with fifth-degree possession of a controlled substance, and he moved to suppress the drugs on the ground that they were discovered as a result of an unreasonable seizure.  Id.  The district court denied defendant’s motion, and defendant was later convicted of fifth-degree possession.  Id.  This court affirmed the district court’s decision, and defendant appealed to the Minnesota Supreme Court.  Id. 

            The first issue before the supreme court was “whether [the officer’s] confinement of [defendant] in the back seat of his squad car was an unreasonable seizure warranting suppression of the methamphetamine.”  Id. at 359.  The supreme court noted the testimony of the officer, who stated that his decision to confine the defendant in the back seat of his squad car was based on the defendant’s statement that he did not have a driver’s license.  Id. at 365.  The officer also testified that “when a driver does not have a license, it is his standard procedure to place the driver in his squad car” and that “he does this so that [he] can talk to them there while they are in the squad car . . . so [he doesn’t] have to go back and forth between the two vehicles.”  Id. (quotation omitted).

The supreme court concluded that “the lack of a driver’s license, by itself, is not a reasonable basis for confining a driver in a squad car’s locked back seat when the driver is stopped for a minor traffic offense.”  Id.  The supreme court reasoned that the defendant’s “interest in being free from unreasonable seizure in these circumstances outweighed [the officer’s] need for convenience because obtaining [defendant’s] name, date of birth, and address did not require confinement in [the officer’s] squad car.”  Id. at 366.  The supreme court stated:

The state makes no suggestion that confining [the defendant] in the back seat of the squad car was the only means reasonably available to accomplish the legitimate governmental interests of identifying [the defendant] and verifying his license status.  Neither interest mandated [the officer’s] confinement of [the defendant] as a method for obtaining this information.  Confining [the defendant] in the back of the squad car, while serving [the officer’s] own interest in convenience, at most only tangentially served a governmental interest.  Also, confining a driver in a squad car for officer convenience lacks any consideration for a driver’s interest in being free from unnecessary intrusions. 



The supreme court also considered the state’s argument that “the objective circumstances of [the] stop made it reasonable for [the officer], in the interest of officer safety, to confine [the defendant] in the squad car.”  Id. at 368.  While acknowledging the officer’s safety concerns with regard to making a traffic stop in the early morning hours and without a partner, the supreme court concluded that “a reasonable person in [the officer’s] position would not conclude that confinement of [the defendant] in the squad car was necessary . . . for officer safety.”  Id. at 370.

            But the district court here determined that Askerooth was distinguishable for two reasons.  First, the district court reasoned that because appellant was confined to the front seat of Trooper Bordwell’s car, as opposed to the back seat as in Askerooth, the confinement was “less intrusive.”  The district court explained that while “[p]lacing an individual in the back seat of a squad car implies that the individual is either under arrest or potentially dangerous . . . [t]he front seat of a squad car is normally occupied by someone the officer is comfortable with, such as another officer or a mere passenger.” 

We believe that this is a distinction without a real difference.  There is no indication that the supreme court in Askerooth intended to limit its holding to instances where confinement was to the back seat of a patrol vehicle.  In addition, as in Askerooth, appellant’s confinement was almost solely for Trooper Bordwell’s convenience.  Trooper Bordwell testified that he typically confines individuals he has stopped to his patrol car because: (1) it is the way he has “been doing things,” (2) it is the way he was “trained,” (3) he likes “chatting with people,” and (4) so that he does not “have to make a second approach.”  Furthermore, like Askerooth, there were other means reasonably available, short of confinement, to accomplish the legitimate governmental interests of obtaining appellant’s information and speaking with appellant about the reasons for the stop.  Finally, it is unlikely that an individual would feel free to leave a patrol car, regardless of whether he was confined to the front or the back seat.  Obtaining appellant’s information and informing appellant that he was stopped for speeding did not require the confinement of appellant to the front seat of the patrol car, and thus the confinement “only tangentially served a governmental interest” and was outweighed by appellant’s interest in being free from the seizure.  Id. at 366.

            The district court also concluded that Askerooth is distinguishable from these facts because Trooper Bordwell confined appellant to his patrol car in the interest of protecting his own safety.  The state similarly argues that because the stop took place on a narrow two-lane highway, Trooper Bordwell’s decision to confine appellant to his patrol car was reasonably justified by concerns for his own safety.

But the facts here do not rise to a high enough level so as to reasonably justify the confinement based on a concern for Trooper Bordwell’s safety.  In Askerooth, the supreme court held that the fact that the stop was made in the early morning hours by an officer working without a partner did not reasonably justify confinement.  Id. at 368.  Similarly, in State v. Varnado, 582 N.W.2d 886, 890, 891 (Minn. 1998), the Minnesota Supreme Court stated that while “officer safety is a paramount interest,” the officer “did not have a reasonable basis to suspect that [defendant] might be armed and dangerous” so as to justify confinement, despite the fact that the stop took place at night, the officer believed that the vehicle stopped belonged to a suspected drug-dealer, and the stop took place in an area where police suspected the presence of drug trafficking. 

Here, the only safety concern that the district court and the state raise is the fact that the stop took place on a narrow two-lane highway.  But Trooper Bordwell’s testimony indicates that his own safety was not his primary reason for confining appellant to his patrol car.  Instead, Trooper Bordwell emphasized his habits and training and seemed to mention potential safety concerns only as an afterthought.  Accordingly, we conclude that the district court erred when it determined that the confinement of appellant to the front seat of Trooper Bordwell’s patrol car was a reasonable seizure under article I, section 10.   


            Appellant also argues that because the evidence of his drinking, including Trooper Bordwell’s observations, was obtained in violation of his constitutional rights, it should be suppressed pursuant to Minn. Stat. § 626.21 (2004).

            “When this court reviews district court evidentiary rulings, the district court is granted significant discretion and the question is limited to whether the district court clearly and unequivocally erred in its evidentiary judgment.”  State v. Johnson, 679 N.W.2d 169, 175 (Minn. App. 2004).  But the statutory construction is a question of law that is subject to de novo review on appeal.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

The United States Supreme Court in Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 118 S. Ct. 2014 . . . (1998) held that the Fourth Amendment exclusionary rule on illegal search and seizures was inapplicable to parole violation proceedings and that the government’s use of evidence obtained in illegal search and seizures does not, in itself, violate the Constitution.


Johnson, 679 N.W.2d at 175-76.  In doing so, the Supreme Court “balanced the costs of excluding reliable, probative evidence in parole revocation proceedings versus the benefits of deterring illegal search and seizures” and concluded that “[i]llegally seized evidence would be barred only in the context where such benefits outweigh the costs.”[1]  Id. at 176.

In Ascher v. Comm’r of Pub. Safety, 527 N.W.2d 122, 126 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995), this court analogized the total-abstinence condition on a person’s driver’s license to being on probation, stating “[defendant] was in effect on probation in regard to his driver’s license: he was entitled to hold it only so long as he refrained from the consumption of alcohol.”  Accordingly, we held that the exclusionary rule did not prohibit using illegally obtained evidence to cancel and deny a person’s driver’s license when they had violated a total-abstinence condition.  Id. at 125-26.  This court reasoned that “applying the exclusionary rule to exclude evidence that [defendant], having violated a condition of his licensure by consuming alcohol, is ‘inimical to public safety’ would not deter future unlawful police conduct to any significant degree.”  Id. at 126.  We further stated that “reinstating [defendant’s] license, although he is known to have consumed alcohol, would interfere with the public interest of keeping intoxicated drivers off the road rather than deter unlawful police conduct.”  Id.

While appellant concedes that any constitutionally required exclusionary rule does not apply to this case, appellant argues that the evidence should be suppressed pursuant to Minn. Stat. § 626.21, which provides:

                        A person aggrieved by an unlawful search and seizure may move the district court . . . for the return of the property and to suppress the use, as evidence, of anything so obtained on the ground that (1) the property was illegally seized, or (2) the property was illegally seized without warrant . . . . The judge shall receive evidence on any issue of fact necessary to the decision of the motion.  If the motion is granted the property shall be restored unless otherwise subject to lawful detention, and it shall not be admissible in evidence at any hearing or trial . . . . The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing. 


            Here, appellant moved to suppress the evidence seized by Trooper Bordwell, including Trooper Bordwell’s observations that appellant’s breath smelled of alcohol and that appellant’s eyes were red, bloodshot, and watery.  The district court denied appellant’s motion, concluding that while section 626.21 applies to suppress evidence of illegally seized property, the statute may not be used to suppress an officer’s observations.  Accordingly, the district court concluded that section 626.21 did “not give the Court the power to exclude [Trooper Bordwell’s] observations even if [his] actions did violate [appellant’s] rights.” 

            This court considered the same issue in Johnson.  In Johnson, the defendant argued that an officer’s testimony regarding the defendant’s consumption of alcohol, including the officer’s observations of the defendant’s appearance, was not admissible because there was no articulable suspicion for the officer to stop the defendant and that all evidence obtained as a result of the illegal stop should therefore be suppressed pursuant to section 626.21.  679 N.W.2d at 173, 175.  But this court held that the word “property” as set forth in section 626.21 did not include an officer’s observations, reasoning that

[t]he word “property” is used six times in the section.  Although there are points in the section where some ambiguity could be found as to what type of evidence is inadmissible, an even-handed reading of the statute makes strained an interpretation that is expanded beyond “property.”  For this reason, we decline to adopt [the defendant’s] interpretation to the extent it includes the observations of the officers.  The cost of excluding the reliable, probative evidence of the officer’s observations outweighs the benefits of the possible deterrence effect of the illegal search and seizure. 


Id. at 176. 

Appellant contends that his breath constitutes a part of his body and is therefore a protected property interest.  But appellant fails to cite any authority in support of this proposition.  In addition, we held in Johnson that “roadside observations of [the defendant’s] appearance, including the odor of alcohol, slurred speech, and blurry eyes,” did not constitute “property” for purposes of section 626.21.  Id. at 173, 176.  Accordingly, we conclude that Trooper Bordwell’s observations regarding appellant’s breath and appearance do not constitute “property” under section 626.21 and therefore hold that the district court did not abuse its discretion in determining that Trooper Bordwell’s observations should not be suppressed even if the seizure was illegal.[2] 



[1] This court applied the Supreme Court’s rationale to probation revocation proceedings in State v. Martin, 595 N.W.2d 214 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).  Johnson, 679 N.W.2d at 176. 

[2] The state also argues that Trooper Bordwell’s observations are admissible under the inevitable-discovery doctrine.  But on appeal, this court generally considers only those issues presented to and considered by the district court.  Because this argument was not raised by the state before the district court, we will not consider it on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).