IN SUPREME COURT
Court of Appeals
Filed: December 1, 2005
Office of Appellate Courts
Peggy Louise Burbach,
S Y L L A B U S
1. Under Article I, Section 10 of the Minnesota Constitution, a police officer’s detection of the odor of alcohol coming from an adult passenger during a traffic stop does not, by itself, provide a reasonable, articulable suspicion of an open-container violation sufficient to permit an officer to expand the traffic stop by requesting to search the vehicle.
2. Under Article I, Section 10 of the Minnesota Constitution, when an officer’s suspicion of drug possession during a traffic stop is supported only by a driver’s nervous behavior, an unsubstantiated tip of unknown origin, and speeding, and when the driver does not exhibit other signs of impairment, the officer does not have a reasonable, articulable suspicion of drug possession sufficient to permit the officer to expand the traffic stop by requesting to search the vehicle.
Reversed and remanded.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Russell A., Justice.
this case, the state appealed a pretrial order by the district court
suppressing crack cocaine seized during the consensual search of a vehicle
stopped for speeding, and also suppressing additional evidence of drug
possession and drug use subsequently seized at the stationhouse from the
driver, appellant Peggy Louise Burbach. The
court of appeals reversed the district court, concluding that the officer’s detection of the odor of alcohol
coming from Burbach’s vehicle justified the officer’s search. State
v. Burbach, No. A04-1530, 2005 WL 221980, at *4 (
1:30 a.m. on February 8, 2004, a police officer clocked Burbach traveling 55
miles per hour in a 30-miles-per-hour speed zone on
As the officer spoke to Burbach, he detected a strong odor of alcohol, but he could not tell if the smell came from Burbach or her passenger, a middle-aged man seated next to her. The passenger volunteered that the alcohol smell came from him, and after ordering Burbach out of the car, the officer smelled no odor of alcohol coming from her. The officer then conducted a nystagmus-gaze test on Burbach, which showed no signs of nystagmus, and a breathalyzer test, which indicated that Burbach’s alcohol concentration was .000. In addition, Burbach’s eyes were neither watery nor bloodshot, and she had no problems related to balance, coordination, vision, following directions, answering questions, or with slurred or ungrammatical speech. The officer concluded that the odor of alcohol did not come from Burbach, but he felt that she was significantly more nervous, fidgety, and talkative than a normally nervous person in a traffic stop. He asked her if she had recently used any illegal drugs or if she had any in her car. She answered “no” to both questions, although she said she had taken some NyQuil earlier in the evening.
At this point, about 15 minutes into the traffic stop, the officer requested and obtained Burbach’s consent to search the vehicle. He testified that he wanted to search the vehicle because Burbach’s nervous behavior suggested impairment, and that the tip he had received at the shift-change meeting made him more eager to search due to its suggestion that her car may contain crack cocaine. After a second officer removed Burbach’s passenger from the vehicle, the officer opened the driver’s side door and saw three baggies of crack cocaine sitting on the passenger seat. The officers then arrested Burbach and her passenger. At the stationhouse, an additional rock of crack cocaine and a pipe were found in Burbach’s bra during a body search. She also consented to a urine test, and its results showed that she had marijuana and cocaine in her system.
charged Burbach with possession of narcotics, driving under the influence of a
controlled substance, possession of drug paraphernalia, speeding, and failure
to provide proof of insurance. Burbach
moved to suppress the crack cocaine and the other drug-related evidence found during
the vehicle search and subsequently at the stationhouse, arguing that the
search of her vehicle was a violation of her rights under Article I, Section 10
of the Minnesota Constitution because the search was not supported by a reasonable,
articulable suspicion of criminal activity beyond the original purpose of the
stop, and that evidence obtained subsequent to the search was therefore also
tainted. Relying on our decision in State v. Fort, 660 N.W.2d 415 (
This case presents two questions. First, Burbach asks us to revisit the court of appeals’ determination that a request to search a vehicle is justified under the Minnesota Constitution when an officer detects the odor of alcohol coming from an adult passenger. Second, we consider the state’s contention that, under the totality of circumstances in this case, the officer’s request to search Burbach’s vehicle was justified by a reasonable, articulable suspicion of drug possession.
We undertake a
de novo review to determine whether a search or seizure is justified by
reasonable suspicion or by probable cause.
State v. Lee, 585 N.W.2d 378, 382-83 (
In Atwater v. City of Lago Vista, the United States Supreme Court
determined that “[i]f an officer has probable cause to believe that an individual
has committed even a very minor criminal offense in his presence, he may,
without violating the Fourth Amendment, arrest the offender.” 532
But we have rejected the
When an officer expands a
traffic stop by requesting to search a vehicle, and when this request is not
justified by the original purpose of the stop, the officer must have a
“reasonable articulable suspicion of other criminal activity” going beyond the
initial reason for the stop. Fort, 660 N.W.2d at 419. Here, since the officer’s request to search
Burbach’s vehicle was not justified by Burbach’s speeding, to be valid under
the Minnesota Constitution, the request must have been supported by a reasonable,
articulable suspicion of additional criminal activity. And to be reasonable, any intrusion in a
routine traffic stop must be supported by an “objective” and fair “balancing of
the government’s need to search or seize ‘and the individual’s right to
personal security free from arbitrary interference by law officers.’” Askerooth,
681 N.W.2d at 364-65 (quoting United
States v. Brignoni-Ponce, 422
Since reasonable, articulable suspicion must be “particularized,” we must evaluate the state’s two proffered justifications for the search separately. Fort, 660 N.W.2d at 418. We first consider whether the odor of alcohol coming from an adult passenger provides a reasonable, articulable suspicion of an open-container violation. Second, we consider whether, under the totality of the circumstances, there was a reasonable, articulable suspicion of drug possession.
The state urges that the odor of alcohol coming from a vehicle should always justify a search for open containers of alcohol. It supports this claim with our decision in Schinzing, in which we held that a vehicle search was permissible when an officer pulled a vehicle over for suspicious driving, was told by the passengers that they were 17 years old, smelled alcohol coming from the vehicle, and was told by the passengers that they had been drinking. 342 N.W.2d 105. In this context, we stated:
[The officer’s] detection of the odor of alcohol coming from the car gave him probable cause to believe that a search of the passenger compartment would reveal open bottles or cans of alcohol.
The state argues that this language articulates a bright-line rule that the odor of alcohol always justifies a vehicle search. We disagree. Since analysis under Article I, Section 10 of the Minnesota Constitution must be “individualized” and viewed under “the totality of the circumstances” of each case, the odor of alcohol in Schinzing must be examined in light of its particular context. Most significantly, in Schinzing the officer’s knowledge that the vehicle’s passengers were 17 made his detection of the odor of alcohol clear evidence of underage drinking. Having established this first alcohol-related crime, it was reasonable to suspect an open-container violation as well. Since people who are underage cannot legally drink alcohol, such people are more likely to drink in vehicles, out of the public view. Therefore, when the officer in Schinzing smelled the odor of alcohol, he had a reasonable, articulable suspicion of additional criminal activity beyond the original purpose of the stop, and he was justified searching the vehicle.
But the circumstances in
this case are very different. Burbach’s adult
passenger volunteered that he had been drinking earlier, and the officer knew,
after getting Burbach out of the vehicle and performing sobriety tests, that
she had not been drinking. At best,
these facts provide only an attenuated inference of an open container. To allow a vehicle search solely because an
adult passenger smelled of alcohol would be to permit highly speculative searches
against a large group of entirely law-abiding motorists, including designated
drivers. Such a rule would not comport
with the substantial privacy interest in motor vehicles that the Minnesota
Constitution ensures. State v. Wiegand, 645 N.W.2d 125, 131 (
Since the request to search was not justified by a reasonable, articulable suspicion of an open container, we consider the state’s contention it was justified as a search for illegal drugs. The state points to three factors suggesting that Burbach was on drugs or in possession of them: (1) Burbach’s demeanor, which was nervous, fidgety, and talkative in a way that the officer found more extreme than usual; (2) the tip the officer had received from his sergeant one to two weeks earlier; and (3) Burbach’s driving behavior.
First, we consider Burbach’s demeanor. We have been reluctant to rely on nervous behavior as evidence to support a reasonable, articulable suspicion of criminal activity. See Wiegand, 645 N.W.2d at 138 (determining that a drug dog sniff of a vehicle was not justified where the driver was evasive, nervous, and shaking, and noting that “acting suspiciously is not an articulable basis to suspect criminal activity”); see also Fort, 660 N.W.2d at 417, 419 (determining that officers were not justified asking for consent to search a vehicle when the vehicle’s occupants had committed a traffic violation, were driving in a “high drug area,” and were acting nervous and avoiding eye contact). While the officer testified that Burbach’s nervousness was significantly more than normal nervousness during a traffic stop, the district court observed that her nervousness was reasonable in the context of intense police questioning. Therefore, the district court concluded that the state’s argument that Burbach’s nervousness contributed to a finding of reasonable suspicion was “without merit.” We agree with the district court’s evaluation.
Second, we turn to the tip, which
must be evaluated in the context of the totality of the circumstances. State
v. McCloskey, 453 N.W.2d 700, 702-03 (
Third, we believe that Burbach’s driving behavior—speeding 55 miles per hour in a 30-miles-per-hour zone, and perhaps pulling over and stopping somewhat slowly—provides little reason to suspect drug possession.
Each of these factors is weak evidence of drug possession, and they are also weak in the aggregate. In addition, Burbach showed no other signs of impairment. Her eyes were neither watery nor bloodshot and showed no signs of nystagmus, and she had no problems related to balance, coordination, vision, following directions, answering questions, or with slurred or ungrammatical speech. Therefore, we hold that under Article I, Section 10 of the Minnesota Constitution, when an officer’s suspicion of drug possession during a traffic stop is supported only by a driver’s nervous behavior, an unsubstantiated tip of unknown origin, and speeding, and when the driver does not exhibit other signs of impairment, the officer does not have a reasonable, articulable suspicion of drug possession sufficient to permit the officer to expand the traffic stop by requesting to search the vehicle.
We conclude that because there was not a reasonable, articulable suspicion of any additional criminal activity aside from the initial reason for the stop, the officer was not justified requesting to search Burbach’s vehicle. We therefore reverse the decision of the court of appeals. Accordingly, we reinstate the decision of the district court suppressing both the evidence seized during the search of Burbach’s vehicle and all evidence seized subsequently as a result of her arrest, and also dismissing the charges of fourth-degree driving while impaired, fifth-degree possession of a controlled substance, and possession of drug paraphernalia. We remand to the district court for further proceedings on the remaining charges of speeding and failure to provide proof of insurance.
Reversed and remanded.
 Under Minnesota Rule of Criminal Procedure 28.04, subds. 1(1) and 2(1), the state can appeal a pretrial order in a criminal prosecution if the order will “have a critical impact on the outcome of the trial.” Here, since the suppression of the evidence led directly to the dismissal of all the state’s drug-related charges, it is clear that the order had the requisite critical impact.
 Two of the state’s other arguments
deserve brief mention here. First, the
state also argues that the search was justified as a search incident to
probable cause to arrest for driving under the influence of drugs. Since the relevant evidence supporting this
theory is the same evidence that supports a suspicion of drug possession, and
since the reasonable-suspicion standard is no higher than the
probable-cause-to-arrest standard, Wiegand, 645 N.W.2d at 133, we need only address the question of
reasonable suspicion of drug possession.
Second, the state argues that the search was justified as a search
incident to probable cause to arrest for speeding and failure to provide proof
of insurance. However, we have held that
minor violations such as these, which call for citation only under Minn. R.
Crim. P. § 6.01, may not be the basis for a search incident to probable cause
to arrest. State v. Varnado, 582 N.W.2d 886, 892-93 (