may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Allen Chastek, petitioner,
Commissioner of Public Safety,
Filed July 27, 1998
Carver County District Court
File No. C8981247
Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.
This appeal is from a district court order sustaining the revocation of appellant Allen Chastek's driver's license under the implied consent statute. Chastek argues that the revocation should be rescinded because (1) his arrest for open bottle resulted from an illegal search and seizure and (2) when the officer invoked the implied consent statute, he lacked probable cause to believe that Chastek had been driving under the influence of alcohol. We affirm.
Tom Schmieg, a part-time firefighter, was directing traffic near the scene of an accident. Both lanes of the highway were temporarily closed, and Schmieg was stopping all traffic. Schmieg observed a pickup truck that was stopped in the eastbound lane but facing west.
Chastek was driving the truck. Based on Chastek's truck being in the eastbound lane facing west for no apparent reason and on Chastek's failure to proceed when Schmieg displayed a slow sign and allowed westbound traffic through, Schmieg suspected that Chastek might be drunk. Schmieg contacted the fire command center to call a police officer to the scene.
Deputy sheriff Jason Kamerud responded to Schmieg's request for a police officer. Kamerud testified that when he initially spoke to Chastek, he observed that Chastek's eyes were bloodshot, watery, and glassy. But Chastek's speech was clear, and Kamerud did not detect any odor of alcohol. At that point, Kamerud instructed Chastek to put on his seat belt and proceed when the firefighters directed him to do so. Kamerud testified that the following then occurred:
He put his seat belt on and it - he had his left hand sitting on his lap, and he reached over with his right hand to put the seat belt on, and the lap belt from the seat belt rested across his left arm and he made - he didn't remove his left arm. I thought it was unusual, so I took my head in and took a closer look at it.
* * * *
* * * [I]t just seemed odd to me that he let the lap belt rest across his arm. So I looked at it to see if that was, in fact, what was going on, and it was. And then I could see that he was - it looked like he was trying to conceal something between his legs with his hand resting, trying to cover it. And then I could also - at this point, then, I noticed there were a couple of beer cans in the car already, so I expected that what he was trying to conceal was a beer can.
Kamerud testified that the beer cans he saw were on the truck's passenger side and that at least one of them was open.
Kamerud told Chastek that he thought Chastek was hiding a beer can between his legs and instructed him to lift up his left hand and get out of the truck. When Chastek refused, Kamerud reached inside Chastek's truck, turned off the engine, and put the truck in park. Kamerud put Chastek in an escort hold and removed him from the truck. Chastek said he did not have identification and then tried to get away from Kamerud. Kamerud told Chastek that he was under arrest, and a firefighter assisted Kamerud in handcuffing Chastek.
Kamerud and Chastek walked about 250 to 300 yards to a squad car. Kamerud observed that Chastek's gait was unsteady and detected a moderate odor of alcohol on Chastek's breath. In the squad car, Kamerud smelled the odor of alcohol "pretty clearly." Kamerud requested a preliminary breath test (PBT). Kamerud testified that Chastek blew into the mouthpiece very lightly. When Kamerud instructed Chastek to blow much harder, Chastek put his lips on the mouthpiece, puffed up his cheeks, and appeared to be straining, but no air passed through the mouthpiece. Kamerud told Chastek a couple of times not to cover the mouthpiece with his cheeks or tongue and to just blow through the tube. Despite Kamerud's instructions, no air passed through the tube. Based on his previous experience in administering the PBT, Kamerud concluded that Chastek was not going to cooperate in providing an adequate air sample. Kamerud then transported Chastek to jail, where Kamerud read Chastek the implied consent advisory and arrested him for DWI.
The district court's findings of fact will not be overturned unless they are clearly erroneous. Minn. R. Civ. P. 52.01. Findings of fact that are reasonably supported by the evidence are not clearly erroneous. Lindberg v. Commissioner of Pub. Safety, 498 N.W.2d 301, 303 (Minn. App. 1993). Conclusions of law will be overturned if the district court erroneously construed and applied the law to the facts. O'Brian v. Commissioner of Pub. Safety, 552 N.W.2d 760, 761 (Minn. App. 1996).
1. Once the facts have been established, the existence of probable cause as it relates to warrantless searches is a question of law subject to de novo review. See State v. Bauman, 586 N.W.2d 416, 419 (Minn. App. 1998) (setting forth and applying standard of review), review denied (Minn. Jan. 27, 1999). Chastek concedes that Kamerud was justified in approaching his truck and talking to him. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (generally, it does not constitute a seizure for an officer to approach and talk to a driver sitting in an already stopped car).
Chastek argues that Kamerud's discovery of the beer cans in the truck resulted from an illegal search because Kamerud did not see any beer cans or have any reason to suspect that Chastek was trying to hide something illegal until after Kamerud stuck his head inside of the truck's window. See Bauman, 586 N.W.2d at 419 (plain view exception to warrant requirement inapplicable when officer asked driver to step out of vehicle and then opened the driver's door, looked inside, and saw object on top of briefcase behind driver's seat). Kamerud testified that, upon seeing the unusual manner in which Chastek put on his seat belt, "I took my head in and took a closer look at it." Kamerud further testified that, at that point, he saw that Chastek appeared to be concealing something between his legs and also noticed the beer cans in the truck's passenger side, at least one of which was open. Kamerud's testimony supports the district court's finding that Kamerud saw the beer cans in the truck's passenger side before ordering Chastek to get out of the truck and reaching into the truck to turn the engine off.
Chastek's argument requires construction of the phrase "I took my head in." Although that phrase could mean that Kamerud put his head inside the window, it could also mean that Kamerud moved his head closer to the truck. Before the district court, Chastek argued generally that Kamerud lacked probable cause to believe that Chastek had an open bottle of alcohol in the truck. However, Chastek did not raise the specific issue of whether Kamerud's head was inside or outside of the truck when he saw the beer cans in the truck's passenger side. An appellate court will not "decide issues which are not first addressed by the [district] court and are raised for the first time on appeal even if the issues involve constitutional questions regarding criminal procedure." State v. Roby, 463 N.W.2d 506, 508 (Minn. 1990) (quoting State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989)).
In Roby, the defendant argued before the district court that police lacked probable cause to arrest him. On appeal, he argued that his arrest was an unconstitutional warrantless, domiciliary arrest. Id. The supreme court held that the defendant waived the issue of whether his arrest was an unconstitutional warrantless, domiciliary arrest by failing to raise it before the district court. Id. In a later, postconviction appeal, the supreme court noted that the record was unclear as to whether defendant was arrested inside or outside of the apartment where he lived and that the essence of his argument on appeal concerned that unresolved factual discrepancy. Roby v. State, 547 N.W.2d 354, 356-57 (Minn. 1996).
In this case, as in Roby, the record is unclear as to whether Kamerud's head was inside or outside of the truck when he saw the beer cans in the truck's passenger side, and the district court did not make a finding on the issue. It is the district court's role to resolve factual issues. See State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995) (when defendant sought to suppress confession on the ground that it was involuntary, it was district court's role to resolve evidentiary disputes regarding historical facts). By failing to raise the issue of whether Kamerud's head was inside or outside of the truck when he saw the beer cans in the truck's passenger side, Chastek waived it. Because Chastek waived that issue and because the evidence supports the district court's finding that Kamerud saw the beer cans in the truck's passenger side before ordering Chastek to get out of the truck and reaching into the truck to turn the engine off, there is no basis for this court to conclude that Kamerud's discovery of the beer cans in the truck's passenger side resulted from an illegal search.
The automobile exception to the warrant requirement permits an officer to search a vehicle "if the officer has probable cause to believe the search will produce evidence of a crime." Bauman, 586 N.W.2d at 422. Probable cause exists when, under the totality of the circumstances, the officer
conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested.
State v. Nace, 404 N.W.2d 357, 360 (Minn. App. 1987), review denied (Minn. June 25, 1987). Kamerud's discovery of the beer cans in the truck's passenger side gave him probable cause to believe that Chastek had violated the open bottle law. See Minn. Stat. § 169.122, subd. 2 (1998) (prohibiting possession and allowance of open containers of alcohol in motor vehicle's passenger areas while on public highway); see also State v. Schuette, 423 N.W.2d 104, 106 (Minn. App. 1988) (officer's observation of open bottles of alcohol in plain view in vehicle's passenger area gave officer probable cause to search grocery bag in car for open bottles).
2. The implied consent law can be invoked when the officer has probable cause to believe that the person was driving, operating, or in physical control of a motor vehicle while under the influence of alcohol. Minn. Stat. § 169.123, subd. 2(a) (1998). The determination of whether probable cause exists is a mixed question of fact and law; once the facts are established, the existence of probable cause is a legal determination. Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994).
Probable cause exists where all the facts and circumstances would warrant a cautious person to believe that the suspect was driving or operating a vehicle while under the influence.
Johnson v. Commissioner of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985).
An after-the-fact scrutiny should not take the form of a de novo review. Rather, the duty of the reviewing court is simply to ensure that the officer had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law.
State v. Olson, 342 N.W.2d 638, 641 (Minn. App. 1984) (citing Jones v. United States, 362 U.S. 257, 80 S. Ct. 725 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547 (1980)). Reviewing courts give "great deference" to an officer's probable cause determination. Id. at 640-41.
When Kamerud initially spoke to Chastek, Kamerud observed that Chastek's eyes were bloodshot, watery, and glassy. Kamerud saw two beer cans in the passenger area of Chastek's truck and then discovered that Chastek was concealing an open beer can between his legs. At that point, Kamerud arrested Chastek for violating the open bottle law. Chastek did not cooperate with Kamerud's efforts to search his truck and arrest him for violating the open bottle law. During the walk to the squad car after Kamerud arrested Chastek for open bottle, Kamerud observed that Chastek's gait was unsteady and detected a moderate odor of alcohol on Chastek's breath. In the squad car, Kamerud smelled the odor of alcohol "pretty clearly," and Chastek was uncooperative in providing an adequate air sample for a PBT. See Minn. Stat. § 169.121, subd. 6 (1998) (PBT may be required when officer has reason to believe from the manner in which a person is acting upon departure from vehicle that person was driving under the influence); State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316 (Minn. 1981) (PBT may be used to assist in probable cause determination; officer need have only articulable suspicion that person was driving under the influence before requiring PBT). Kamerud then transported Chastek to jail and invoked the implied consent statute. The facts known to Kamerud at the time he invoked the implied consent statute were sufficient to establish probable cause for him to believe that Chastek had been driving under the influence of alcohol.