This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Joni Lee Jacobson,


Filed August 21, 2007


Peterson, Judge


Hennepin County District Court

File No. 05-070977


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


Brian N. Toder, Chestnut & Cambronne, P.A., 3700 Campbell Mithun Tower, 222 South Ninth Street, Minneapolis, MN  55402 (for appellant)


            Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N



            In this appeal from a conviction of a felony controlled-substance offense, appellant argues that because her arrest was based solely on her refusal to perform field sobriety tests and she did not display sufficient indicia of intoxication to establish probable cause to arrest her for driving while impaired (DWI), the district court erred in denying her motion to suppress methamphetamine discovered during a search incident to arrest.  We affirm.


            Upon seeing a Jeep make a left turn against a red light, Minnesota State Patrol Trooper M. Flanagan stopped the Jeep and identified the driver as appellant Joni Lee Jacobson.  Appellant had difficulty finding her driver’s license, was fumbling through things in the Jeep, and appeared to Flanagan to be very nervous.  Flanagan observed that appellant’s eyes were watery and bloodshot, and appellant admitted having had one drink.  When Flanagan asked appellant to step out of the Jeep, appellant continued to appear very nervous. 

            Flanagan’s report describes his request and appellant’s refusal to perform field sobriety tests as follows:

I asked [appellant] to remove her glasses so I could do some Standardized Field Sobriety Tests.  At this time [appellant] became[] very nervous and loud, stating she did not want to do the tests.  I explained to [appellant] that I was going to use the tests to check her impairment.  She stated that she did not have to legally do the tests and only wanted to do the PBT.  I again explained to [appellant] that I needed to do some SFST’s then I could administer her a PBT.  She refused to comply with my directives and attempts to do SFST’s.  I explained to her that she needed to comply with my requests to do SFST’s and I again attempted the Horizontal Gaze Nystagmus test.  She became very agitated and stated she did not have to comply with my requests.  I then asked her a fourth time if she would comply with my [directive] to do SFST’s and she stated no, at which time she became physically uncooperative and I had to escort her to the side of my squad car.  I explained to her that if she did not comply with my directives I was going to place her under arrest for DWI.  She continued to passively resist my directives, and I handcuffed her behind her back. . . . I informed [appellant] that she was under arrest for DWI. 


            During a search incident to the arrest, Flanagan found methamphetamine on appellant’s person.  Appellant was charged with second-degree controlled-substance crime and third-degree DWI.

            Appellant moved to suppress the methamphetamine, arguing that her arrest was not supported by probable cause.  The parties stipulated that the motion would be decided based on documentary evidence.  After the district court denied appellant’s suppression motion, the parties submitted the case to the district court for a bench trial based on stipulated record.  The district court found appellant guilty of second-degree controlled-substance crime and not guilty of third-degree DWI and sentenced her accordingly.  This appeal challenges the order denying appellant’s motion to suppress.


            “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  When determining whether probable cause exists to make a warrantless arrest, this court “independently reviews the facts to determine the reasonableness of the conduct of police.”  State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997).  We review the district court’s findings of fact in determinations of probable cause for clear error, giving “due weight to inferences drawn from those facts by [the district court].” [1]  State v. Lee, 585 N.W.2d 378, 382-83 (Minn. 1998) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996)).

            A search incident to a lawful arrest is an exception from the general rule that a warrantless search is unreasonable.  In re Welfare of T.L.S., 713 N.W.2d 877, 880 (Minn. App. 2006) (citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973)).  Under the search-incident-to-arrest doctrine, an officer may search a suspect when the officer has probable cause to arrest the suspect.  In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).  The test of probable cause to arrest is whether objective facts establish that, under the circumstances, a person of ordinary care and prudence would have an honest and strong suspicion that a crime has been committed.  State v. Wynne, 552 N.W.2d 218, 221 (Minn. 1996).  When applying this test, we take into account the totality of the circumstances.  State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998).

            A single, objective indicator of intoxication may be sufficient to establish probable cause to support an arrest for DWI.  State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004).  Common indicia of intoxication include an odor of alcohol, bloodshot and watery eyes, slurred speech, an uncooperative attitude, and an admission of drinking.  Id. (odor of alcohol, bloodshot and watery eyes, slurred speech, and uncooperative attitude); Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000) (admission of drinking), review denied (Minn. Sept. 13, 2000).[2]

            Citing the statement in Flanagan’s report, “I explained to her that if she did not comply with my directives [to perform field sobriety tests] I was going to place her under arrest for DWI,” appellant argues that Flanagan did not arrest her because she displayed indicia of intoxication but rather because she refused to perform field sobriety tests.  But that is not the only possible interpretation of Flanagan’s statement.  Appellant displayed the following indicia of intoxication:  bloodshot and watery eyes; admission that she had had a drink; nervousness; difficulty finding license and fumbling behavior; and uncooperative attitude when asked to perform field sobriety tests.  As the district court noted, Flanagan observed these indicia of intoxication before making the statement relied on by appellant.  Under these circumstances, it is reasonable to interpret Flanagan’s statement as meaning that he was requesting field sobriety tests to provide appellant an opportunity to dispel the impression that she was intoxicated, and if she did not perform the tests, he would arrest her for DWI.

            In any event,

            [w]e apply an objective standard for determining the lawfulness of an arrest or a search by taking into account the totality of the circumstances to determine whether the police have probable cause to believe that a crime has been committed, and if the objective standard is met, we will not suppress evidence or invalidate an arrest “even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive.”


State v. Hawkins, 622 N.W.2d 576, 579-80 (Minn. App. 2001) (quoting State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998) (quoting State v. Olson, 482 N.W.2d 212, 214 (Minn. 1992))).

            The indicia of intoxication shown by appellant, together with her driving conduct of making a left turn against a red light, were sufficient to establish probable cause to arrest appellant for DWI.  See State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000) (holding observations of red and bloodshot eyes, slurred speech, and odor of alcohol sufficient to establish probable cause); State v. Aschnewitz, 483 N.W.2d 107, 109 (Minn. App. 1992) (stating “officer had probable cause to believe that appellant had committed the offense of driving under the influence when he saw appellant’s vehicle swerve off the road and smelled alcohol on appellant’s breath”).

            The district court properly denied appellant’s motion to suppress.


*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]Appellant incorrectly states that because the suppression motion was decided based solely on documentary evidence, the district court’s findings are not entitled to deference.  “[F]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.”  State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999) (quoting Minn. R. Civ. P. 52.01). 


[2] Because this court independently reviews the facts to determine the existence of probable cause, we need not address appellant’s argument that the district court improperly relied on Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983), which involved the standard for administering a PBT.