This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1947

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jevrett David Carlson,

Appellant.

 

 

Filed July 26, 2005

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 04046904

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jay M. Heffern, Minneapolis City Attorney, Heidi L. Johnston, Raymond Oris Cantu, Assistant City Attorneys, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

 

Phillip S. Resnick, Phillip S. Resnick & Associates, 1925 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Jevrett David Carlson challenges his conviction of driving while under the influence of alcohol, arguing that the district court erred by denying his pretrial motion to suppress evidence.  We affirm. 

FACTS

            On July 21, 2004, at approximately 2:15 a.m., two Minneapolis police officers in their squad car observed a vehicle traveling the wrong way on a one-way street.  The officers activated their car's emergency lights, followed the vehicle, and initiated a stop, at which point a video camera inside the squad car and directed forward automatically began recording. 

Once both cars were stopped, Officer Derek M. Chauvin of the Minneapolis Police Department approached the other vehicle and asked the driver, Carlson, for his driver's license and proof of automobile insurance.  At the contested Rasmussen hearing, Chauvin testified that Carlson "looked through his wallet for several moments attempting to find his driver's license" before producing the license and "an insurance card that was for another vehicle that was not the one he was driving."  Chauvin testified that after taking Carlson's license, he told him to remain seated in his vehicle while Chauvin returned to the squad car to check Carlson's license.

When Chauvin approached the vehicle a second time, Carlson, who was still looking through his wallet, stated that he was having difficulty finding his driver's license.  The other officer, who observed this interaction, later testified that Carlson first apologized to Chauvin for not being able to find his license, and then, when Chauvin asked if he (Chauvin) had the license, Carlson stated, "I don't know.  Do you?"  Chauvin testified that at this point, "the fact that [Carlson] had previously given me his driver's license and now he's stating to me that he isn't sure where it is seemed to indicate there's some problems going on with him."  Chauvin then asked Carlson to step out of his vehicle "[d]ue to [Chauvin's] belief that [Carlson might] be under the influence of alcohol."  The reason for this belief, Chauvin testified, was:

Initially from contacting [Carlson], I noticed he had a fixed stare straight ahead which, in and of itself, may indicate some measure of nervousness, and I've seen that on several occasions with individuals.  And then I also noticed that the speech was slightly slurred.  But then, there again, giving him the benefit of the doubt, due to [a] certain person's speech patterns, it may or may not have been just the way he speaks normally.  But then after contacting him the second time and him having no recollection of giving me his driver's license, I felt there was more evidence than not that he was possibly under the influence of alcohol.

 

The other officer testified that it appeared Carlson may have been drinking based upon his traffic violation, the time of night, and his initial confusion about whether he had his license and subsequent confusion about whether he had already given it to Chauvin.  When Carlson stepped out of his vehicle, Chauvin frisked him and administered a field sobriety test.   Chauvin then arrested him and placed him in the squad car. 

An Intoxilyzer test administered less than two hours later indicated Carlson's blood-alcohol level was .17.  Carlson was charged with two counts of third-degree driving while under the influence of alcohol, in violation of Minn. Stat. §§ 169A.20, subds. 1(1), 1(5), .26, subds. 1, 2 (2004).  The police did not issue a traffic citation for the alleged violation that led to the initial stop of Carlson's vehicle.   

            At a contested Rasmussen hearing, Carlson moved to suppress all evidence against him, arguing the police lacked reasonable suspicion to stop his vehicle and expand the scope of the initial stop and probable cause to arrest him.  The district court denied the motion based upon the testimony of the arresting officers and the court's own viewing of the video taken from inside the squad car.  The court found the arresting officers had probable cause to suspect Carlson was driving while impaired because they observed him driving the wrong way on a one-way street near the time bars close.  Carlson "seemed confused about the whereabouts of his driver's license and unable to remember already having given it to the officer."

Carlson waived his right to a jury trial and submitted the case to the district court on stipulated facts pursuant to the procedure set out in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).   The district court found Carlson guilty as charged.

D E C I S I O N

Carlson argues that the district court erred by denying his pretrial motion after concluding the police had reasonable suspicion to conduct the initial stop of his vehicle, reasonable suspicion to expand the scope of the stop, and probable cause to arrest him.  "When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).     

We evaluate the reasonableness of seizures during traffic stops following minor traffic violations under the principles and framework of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  We first conclude the initial stop of Carlson was justified.  "A limited investigative stop is lawful if the state can show the officer to have had a particularized and objective basis for suspecting the particular person stopped of criminal activity."  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quotation omitted).  When an officer witnesses a traffic violation, however insignificant, an objective basis for stopping the vehicle ordinarily exists.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  Here, the police observed Carlson driving the wrong way on a one-way street.  There was therefore a sufficient objective basis for the initial investigative stop of Carlson's vehicle.

  An investigatory stop is generally limited in scope and duration "to the justification for the stop."  State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003).  Thus, even if a stop is initially justified, the police must have reasonable, articulable suspicion of other illegal activity to expand the scope of the stop to include investigation of such activity, in this case Carlson's impaired operation of his vehicle.  Terry, 392 U.S. at 20-21, 88 S. Ct. at 1879-80.  To be reasonable, the suspicion must be objectively appropriate in light of the facts available at the moment of the search or seizure.  State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004).  In arriving at a reasonable suspicion, an officer may make inferences and deductions that might elude an untrained person.  Applegate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). 

Here, once the police completed the investigation related to the original stop, they ordered Carlson from his car in order to administer a field sobriety test.  Such a test is an intrusion that must be justified by a reasonable, articulable suspicion that the driver is under the influence.  State Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 320-21 (Minn. 1981).  Because these actions were not justified by the original purpose of the stop, we must determine whether they were based upon the officers' reasonable, articulable suspicion of Carlson's intoxication. 

Articulable suspicion includes the observation of sufficient indicia of intoxication.  State v. Driscoll, 427 N.W.2d 263, 265-66 (Minn. App. 1988).  In State v. Lee, 585 N.W.2d 378 (Minn. 1998), the supreme court stated that an officer need not observe any "commonly-known physical indicia of intoxication" to believe an individual is intoxicated.  585 N.W.2d at 382.  Chauvin testified that the indicia of intoxication upon which he based his decision to perform a field sobriety test were Carlson's initial traffic violation, his fixed stare, his slurred speech, his confusion concerning his wallet, and the time of the stop. 

We conclude these indicia, taken together, were sufficient to warrant administration of the field sobriety test.  Chauvin testified that Carlson was nervous, which, although it may contribute to an officer's reasonable suspicion of intoxication, is not sufficient by itself but must be coupled with other particularized and objective facts.    See State v. Syhavong, 661 N.W.2d 278, 281-82 (Minn. App. 2003) (concluding that after being pulled over for broken taillight, driver's nervousness was not enough to justify further questioning concerning contraband in car).  A traffic violation must similarly be combined with objective indicia in order to justify a reasonable suspicion of intoxication.  See State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (holding officer had sufficient reason to request a breath test where he observed speeding violation and other objective indicia were present), review denied (Minn. May 16, 1986).  The objective indicia here included Carlson's slurring, his repeated confusion concerning his wallet, and the fact that these events took place near the time bars close.   

The officers on the scene are in the best position to evaluate the circumstances as a whole at the time of the stop.  Here, given the totality of the circumstances contained in the record, we believe the officers had specific, articulable facts that provided a particularized and objective basis for suspecting Carlson was intoxicated.  And because the field sobriety test was lawfully administered, we conclude the officers had probable cause to arrest Carlson after the test.  See Davis v. Comm'r of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993) (stating "[p]robable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver was under the influence").  The district court properly denied Carlson's motion to suppress the evidence against him.

Affirmed.