This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-2481

Mark Dean Mulenburg, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed June 18, 1996

Affirmed

Willis, Judge

McLeod County District Court

File No. C595584

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Peter R. Marker, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103 (for Respondent)

Considered and decided by Harten, Presiding Judge, Willis, Judge, and Stone, Judge.*

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Mark Dean Mulenburg challenges the Commissioner's revocation of his driver's license, arguing that the arresting officer did not have a particularized and objective basis for suspecting him of criminal activity. We affirm.

FACTS

Mulenburg petitioned for judicial review of the Commissioner's revocation of his driver's license. At the hearing, State Trooper Dennis Stack testified that he observed Mulenburg's vehicle traveling on the shoulder of a two-lane highway for approximately three seconds, with most of the vehicle on the shoulder. Trooper Stack turned his vehicle around and followed Mulenburg's vehicle for nearly two miles to a liquor store. Trooper Stack never lost sight of Mulenburg's vehicle. Mulenburg exited the driver's side of the vehicle and began walking toward the liquor store. Trooper Stack parked his vehicle and asked Mulenburg to stop. Trooper Stack and Mulenburg returned to Mulenburg's vehicle, where Mulenburg produced his driver's license. Trooper Stack detected an odor of alcohol and observed that Mulenburg's eyes were watery and bloodshot. Trooper Stack read Mulenburg the implied consent advisory and gave him a breath test, which he failed. The Commissioner revoked Mulenburg's license.

D E C I S I O N

The United States Constitution and the Minnesota Constitution protect individuals from unreasonable searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. 1, ' 10. A seizure is constitutional if the Commissioner shows that the trooper had a "`particularized and objective basis for suspecting the particular persons [seized] of criminal activity.'" Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 694-95 (1981)). The officer must have more than a "hunch" and must be able to "point to something that objectively supports his suspicion." State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989). The officer may "draw inferences on the basis of `all of the circumstances * * * inferences and deductions that might well elude an untrained person.'" Id. at 826 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)).

The Commissioner does not contest that a seizure occurred in this case. The only issue before this court is whether Trooper Stack had an adequate basis for the seizure and whether the seizure was thereby constitutional. The supreme court has held that a seizure was constitutional where an officer observed erratic driving, even though the officer did not observe a violation of traffic laws. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980). In this case, Trooper Stack observed Mulenburg driving on the shoulder of the highway near midnight. Trooper Stack's observation justifies his seizure of appellant.

Mulenburg argues that the record does not support the district court's finding that he was the driver of the vehicle that Trooper Stack observed driving on the shoulder. He argues that the district court erred because the record contains evidence of time discrepancies, evidence that Trooper Stack mistakenly read the commercial vehicles section of the implied consent advisory, and evidence that at the revocation hearing Trooper Stack misidentified the color of Mulenburg's vehicle before he refreshed his memory with his written report. This court will not disturb the district court's findings of fact unless they are clearly erroneous and this court is "left with the definite and firm conviction that a mistake has been made." Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987). The record shows that Trooper Stack did not lose sight of the vehicle he observed driving on the shoulder, that he parked behind the vehicle, that he observed Mulenburg exit the driver's side of the vehicle, and that there were n other persons occupying the vehicle. The district court's finding that Mulenburg was driving the vehicle, therefore, was not clearly erroneous.

Affirmed.


Footnotes

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