This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Nate Landon Nickelsen,

Filed December 21, 1999
Schumacher, Judge

Goodhue County District Court
File No. KX98210

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Stephen N. Betcher, Goodhue County Attorney, Stephen F. O'Keefe, Assistant County Attorney, 103 Goodhue County Courthouse, Red Wing, MN 55066 (for respondent)

Charles Lee Hawkins, 333 South Seventh Street, Suite 2890, Minneapolis, MN 55402 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Davies, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant Nate Landon Nickelsen challenges his gross misdemeanor conviction for implied consent refusal in violation of Minn. Stat. § 169.121, subds. 1a, 3(c)(2) (1998). Nickelsen argues there was no particularized and objective basis for suspecting criminal activity and the evidence does not satisfy the statutory conditions for requesting chemical testing under Minn. Stat. § 169.123, subd. 2 (1998). We affirm.


Red Wing Police Officer Jeffrey Mund was patrolling the area of Treasure Island Casino when he observed a vehicle traveling very rapidly through the valet parking lot. Mund had never seen a vehicle in the valet lot travel so fast, which raised safety concerns, and he stopped the vehicle. Mund performed field sobriety testing on the driver, Nickelsen, who was later arrested on suspicion of driving under the influence and transported to the county jail. The police ran an Intoxilyzer breath test indicating Nickelsen's blood alcohol reading was .02. He was charged with driving after cancellation and possession of a gun. Shortly after the police released Nicklesen from custody but before he left the jail, another officer told Mund that he had found marijuana when searching the vehicle and that a passenger had indicated that Nickelsen had used marijuana earlier in the evening. Mund then detained but did not arrest Nickelsen and requested a second chemical test by reading a second implied consent. Nickelsen refused to provide a sample.

Nickelsen waived his right to a jury trial, and the trial court found Nickelsen guilty of gross misdemeanor implied consent refusal and illegal transportation of a firearm.


1. Where the district court credits the testimony of the arresting officer and facts are not significantly in dispute, this court’s review simply involves an analysis of the officer’s testimony to "determine whether, as a matter of law, his observations provided an adequate basis for the stop." Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). A constitutionally valid stop requires that the law enforcement officer have a "particularized and objective" suspicion that the person stopped may have been engaged in criminal activity. Berge, 374 N.W.2d at 732 (citation and quotation omitted). In determining the validity of an investigative stop, this court examines the totality of the circumstances, giving due regard to an officer’s training and experience in law enforcement. State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).

Nickelsen argues that Mund did not have a particularized and objective basis for believing Nicklesen was engaged in criminal activity to support the traffic stop. The factual basis required to support a traffic stop is minimal. Klotz v. Commissioner of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989), review denied (Minn. May 24, 1989). But the police must show that the stop was not the product of mere whim, caprice or idle curiosity. State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). In this case, Mund observed Nickelsen's vehicle traveling "extremely rapidly" through the valet parking lot. Mund testified that, in his experience, he had never seen a vehicle traveling so fast through the valet lot and he found the driving highly suspicious. We conclude that Nickelsen's driving conduct provided a particular, objective and reasonable basis for the stop.

2. Nickelsen argues that the second implied consent request did not satisfy the statutory conditions for requesting chemical testing under Minn. Stat. § 169.123 (1998) because he was no longer under arrest. Minn. Stat. § 169.123 provides that a peace officer may require a chemical test of a person's blood, breath, or urine for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances where

an officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169.121 and one of the following conditions exist:

(1) the person has been lawfully placed under arrest for violation of section 169.121, or an ordinance in conformity with it; * * * *.

Minn. Stat. § 169.123, subd. 2(a) (emphasis added). Minn. Stat. § 169.123, subd. 2a further details that, notwithstanding subdivision 2, the police may require a urine or blood test after a breath test if there is probable cause to believe that there is impairment by a controlled substance or hazardous substance that is not subject to testing by a breath test.

Nickelsen argues that, although the police may have had probable cause for the second implied consent test, he was no longer under arrest as required by Minn. Stat. § 169.123, subd. 2(a)(1). But the police had placed Nicklesen under arrest for violation of Minn. Stat. § 169.121 (1998). They had just released Nickelsen from jail when Mund learned of the probable marijuana use. Nickelsen was then detained and the implied consent advisory was read to him again. Under the limited facts of this case, we conclude that Mund had sufficient custody and control over Nickelsen following his initial arrest, even though he was released from jail, to satisfy the requirement of the statute.


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