This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Thomas Saban,


Filed June 3, 1997


Schultz, Judge


Itasca County District Court

File No. T3-96-1760

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

John J. Muhar, Itasca County Attorney, W. James Mason, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for Appellant)

Gerald C. Magee, James Jay Rennicke, Magee & Rennicke, 24 Dell Place, Minneapolis, MN 55403 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Schultz, Judge.



The state challenges the trial court's order suppressing evidence seized during an illegal stop, arguing that under the circumstances the arresting officer possessed a particularized and objective basis for suspecting respondent of criminal activity and, as a result, the trial court's determination was clearly erroneous. Because we find that the trial court did not clearly and unequivocally err in determining that under the circumstances the arresting officer failed to articulate specific facts to provide a legal basis for stopping respondent's vehicle, we affirm. In addition, we award respondent attorney fees and costs incurred as a result of defending this appeal.


At approximately 1:30 a.m. on May 5, 1996, the Itasca County Sheriff's Department received a call that an officer was in need of assistance. Officer Dale Kaiser and Officer Deutsch responded in their separate vehicles travelling east on highway 169. Deutsch, in an unmarked vehicle without emergency lights on the roof and without any emergency light or siren activated, preceded Kaiser by approximately one-eighth of a mile. Kaiser had activated the roof- top emergency lights and siren in his vehicle.

The officers passed through the city of Calumet travelling about 55 m.p.h. As they reached the eastern end of town, they saw respondent's vehicle, which was also travelling east at approximately 30-35 m.p.h. Deutsch passed respondent's vehicle; Kaiser saw respondent's vehicle swerve. Respondent then pulled to the side of the road to allow Kaiser's squad car, with its emergency lights and siren activated, to pass.

After a short period of time, Kaiser received a call that his assistance was no longer needed. Kaiser pulled onto the median of the four-lane road at the junction of highways 169 and 65 and waited for respondent to approach. Other than respondent's initial swerve when Deutsch passed him, Kaiser did not observe any unusual behavior or conduct. However, after respondent had passed Kaiser and turned on to highway 65, Kaiser followed respondent and stopped him for suspicion of driving under the influence of alcohol or an illegal substance. A subsequent urine test showed that respondent's blood alcohol content was above the legal limit for operating a motor vehicle.[1]

On the day of his trial for driving under the influence, respondent brought a motion to suppress the evidence obtained as a result of the traffic stop, claiming that the stop was illegal because Kaiser did not have a particularized and objective basis for suspecting respondent of criminal activity. The trial court conducted a hearing on this issue. After hearing testimony from respondent and Kaiser, the trial court suppressed all evidence seized as a result of the illegal stop and dismissed the case against respondent for lack of probable cause. The state appealed and respondent moved for an award of attorney fees and costs incurred in defense of the appeal.


The state claims that the trial court erred in suppressing evidence seized by Kaiser during a traffic stop. The state argues that under the circumstances, Kaiser had sufficient cause and a legal basis to stop respondent's vehicle.

I. Legality of Stop/Sufficient Cause

In a pretrial appeal from an order suppressing evidence in a criminal case, the trial court's ruling will be reversed only "if the state demonstrates clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial." State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977).

(a) Critical Impact

The issue of critical impact was not presented to the trial court, and as such is an exception to the general rule that an appellate court will not consider issues raised for the first time on appeal. State v. Ronnebaum, 446 N.W.2d 699, 701 (Minn. App. 1989), rev'd on other grounds, 449 N.W.2d 722 (Minn. 1990). The critical impact standard is met where the state shows that the lack of suppressed evidence significantly reduces the likelihood of a successful prosecution. State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990). Here, suppression of the evidence obtained after respondent was stopped had a critical impact because the charge of driving under the influence was dismissed for lack of probable cause.

(b) Legality of Vehicle Stop

The state contests the factual determinations that the trial court made in concluding that Kaiser failed to articulate a legally particularized and objective basis for stopping respondent's vehicle. In reviewing a trial court's factual determinations bearing on a pretrial motion to suppress evidence on Fourth Amendment grounds, the trial court's findings will not be set aside unless clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

The Minnesota and federal constitutions proscribe unreasonable government searches and seizures. Minn. Const. art. I, § 10; U.S. Const. amend. IV. An automobile stop constitutes a "seizure" for constitutional purposes, and police may not stop a motorist absent some particularized suspicion that the motorist is engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981), quoted in State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983). An officer is permitted to form a suspicion "on the basis of all of the circumstances and may draw inferences and deductions that may elude an untrained person." State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). The facts must provide the officer with a reasonable basis for suspecting that the driver committed a crime. Schulberg v. Commissioner of Pub. Safety, 387 N.W.2d 225, 227 (Minn. App. 1986). An officer cannot simply act on a hunch that the individual is violating the law or disregard known facts dispelling the suspicion." State v. Fiebke, 554 N.W.2d 755, 757 (Minn. App. 1996) (emphasis added).

The state argues that Kaiser's observation that respondent's vehicle swerved between half and three-quarters of the way across the opposing traffic lane was sufficient to justify the traffic stop. However, the trial court heard testimony that it was dark when the events occurred, that respondent saw a squad car with its lights flashing and siren operating closely following an unmarked car, that these vehicles approached from behind at a high rate of speed, that respondent swerved and properly pulled off the road before being passed by the squad car, that respondent was watching the approaching cars in his rearview mirror, that a person looking in a rearview mirror is not necessarily looking forward at the same time, that it was "very possible" that respondent's swerve was an attempt to avoid an accident or was inadvertent because he was observing the approaching vehicles in his rearview mirror, and that respondent did not exhibit any other unusual behavior.

Based in part on Kaiser's testimony that it was "very possible" respondent had swerved in an attempt to avoid an accident, the trial court determined that respondent swerved as a result of being passed by Deutsch's unmarked squad and that the state failed to present any other evidence indicating that respondent's driving was improper or illegal. In reviewing the record, we find that the trial court's determinations are supported by the record and are not clearly erroneous.

II. Attorney Fees and Costs Incurred in Defense of the Appeal

On appeal, respondent moves for an award of attorney fees and costs incurred in defense of the appeal. Minn. R. Crim. P. 28.04, subd. 2(6), provides that a defendant forced to respond to a pretrial appeal by the state is entitled to reasonable attorney fees and costs. In this case, respondent's counsel requests $1,800 (18 hours at $100/hr.) and $58.38 for briefing expenses. The attorney fees are supported by an affidavit from representing counsel and a receipt for briefing expenses. These amounts do not appear unreasonable and are hereby awarded.


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

[ ]1 Results of the urine test were admitted at the hearing for the purpose of arguing respondent's credibility. The test indicated that respondent's blood alcohol content was 0.19.