This opinion will be unpublished and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

A05-23

 

State of Minnesota,

Respondent,

 

vs.

 

David Gerald Adelmann,

Appellant.

 

Filed January 31, 2006

Affirmed; motion granted

Lansing, Judge

 

Isanti County District Court

File No. K3-04-64

 

Mike Hatch, Attorney General, Suite 1400, 445 Minnesota Street, St. Paul, MN  55101; and

 

Jeffrey Edblad, Isanti County Attorney, Thad N. Tudor, Assistant County Attorney, Scott E. Haldeman, Certified Student Attorney, 555 – 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

 

Michael J. Brandt, Jonathan N. Jasper, Jasper & Brandt, P.L.L.C., 303 Anoka Professional Building, 403 Jackson Street, Anoka, MN 55303 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

David Adelmann appeals from his conviction of second-degree test refusal, arguing that the district court erred by admitting evidence obtained when a deputy sheriff stopped his vehicle.  Based on the totality of the circumstances and because the officer observed Adelmann’s car in the course of two driving violations, the district court properly denied the suppression motion based on its conclusion that the officer had a reasonable, articulable suspicion to stop Adelmann’s car.  We affirm.

F A C T S

            An Isanti County deputy sheriff who was on patrol in the Lake Francis area at about one o’clock in the morning on January 16, 2004, saw a parked car near the intersection of 269th Avenue and Highway 47.  The car was facing west on 269th Avenue, a road that is paved east of Highway 47 but unpaved west of Highway 47.  The officer, who had been driving north on Highway 47, turned west onto 269th Avenue to investigate because he thought the circumstances of a car parked in an isolated area at that hour were unusual.  He also wanted to ascertain whether this car might have any connection to an “attempt-to-locate” dispatch that he had received earlier, during the same patrol shift.  The dispatch reported that two suspects in a murder investigation who intended to kill a witness were traveling from Minneapolis to the Lake Francis area for that purpose.

            As the officer’s patrol car neared the parked car, the car moved forward.  The driver executed a three-point turn and began traveling east.  The officer stopped his patrol car to allow the other car’s driver to execute the three-point turn.  After the driver completed the turn, the car went onto the grassy shoulder of the roadway, returned to the roadway, stopped at the stop sign where the road intersects with Highway 47, and continued east.  The officer also made a three-point turn and followed the car.  After the car cleared the intersection, the officer stopped the car.

The officer requested the driver’s license, which identified the driver as David Adelmann.  Based on the smell of alcohol, the presence of a partially consumed bottle of liquor, Adelmann’s slurred speech, and the results of field sobriety tests, the officer arrested Adelmann for driving while impaired.  Adelmann refused to submit to a breath test at the police station, and the state charged him with second-degree test refusal.

Following a contested omnibus hearing, the district court concluded that the officer had a reasonable, articulable basis to stop Adelmann’s car and denied Adelmann’s motion to suppress evidence obtained from the stop.  The district court based its determination on the totality of the circumstances, including the attempt-to-locate dispatch.  But the court stated that Adelmann’s driving violations, a three-point u-turn that impeded traffic and driving on the grassy area adjacent to the roadway, provided a sufficient independent basis for the stop.  Adelmann was convicted of second-degree test refusal.  In this single-issue appeal, Adelmann challenges the district court’s decision to admit evidence obtained as a result of the investigatory stop of his car.  

D E C I S I O N

The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution provide protection against unlawful searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  An investigatory stop of a vehicle is a permissible seizure if it is based on a reasonable, articulable suspicion of criminal activity.  Marben v. State Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).  A district court’s determination of reasonable suspicion is a legal conclusion subject to de novo review.  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).  We review the findings of fact that support the legal conclusion “for clear error, giving due weight to the inferences drawn from those facts by the district court.”  State v. Britton,604 N.W.2d 84, 87 (Minn. 2000) (quotation omitted). 

To establish a reasonable suspicion justifying a stop, the state must show that the officer “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).  We evaluate the particularized and objective basis by reviewing the events surrounding the stop and the totality of the circumstances.  Britton,604 N.W.2d at 87.  A violation of a traffic law, however insignificant, objectively justifies a limited investigatory stop.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997); see also State v. Battleson, 567 N.W.2d 69, 71 (Minn. App. 1997) (concluding that officer had reasonable, articulable basis for stop after observing that driver drove partly on road and partly on shoulder).

The district court concluded that the officer’s observation of Adelmann’s traffic violations justified the stop of his car.  The evidence supports this conclusion.  The first traffic violation occurred when Adelmann made a three-point turn on the roadway to proceed in the opposite direction.  Minnesota law provides that a driver shall not “turn the vehicle so as to proceed in the opposite direction unless the movement can be made safely and without interfering with other traffic.”  Minn. Stat. § 169.19, subd. 2 (2002).  The district court accepted the officer’s testimony on the events surrounding the stop.  The officer testified that, as he was driving on 269th Avenue toward Adelmann’s car, he had to stop and wait for Adelmann to complete his turn before he could proceed.  The officer explained that Adelmann “had to go forward and reverse a couple of times in order to make the turn on the roadway.”  After the officer approached Adelmann’s car, he told Adelmann that he was stopping him because of the turn on the roadway.  The evidence supported a finding that Adelmann violated Minn. Stat. § 169.19, subd. 2, because his turn interfered with the regular flow of traffic.   

The second violation occurred when Adelmann drove on the shoulder rather than the traveled portion of the roadway.  The district court found that “[a]fter completing the  u-turn the vehicle drove off the roadway, onto the shoulder, and then back onto the roadway.”  A driver is required to drive on the roadway.  Id. § 169.18, subd. 1 (2002) (stating that driver must drive on right half of roadway unless enumerated exception applies).  A roadway “means that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder.”  Id. § 169.01, subd. 31 (2002).  And a shoulder is defined as “that part of a highway which is contiguous to the regularly traveled portion of the highway and is on the same level as the highway.  The shoulder may be pavement, gravel, or earth.”  Id. § 169.01, subd. 73 (2002).

Adelmann argues that the district court erred by finding that his car left the roadway.  But the officer provided uncontradicted testimony that he saw Adelmann, after completing his turn, leave the roadway and drive onto the grassy area adjacent to the roadway.  This testimony is sufficient to establish that Adelmann violated Minn. Stat. § 169.18, subd. 1.  Nothing in the statutory definitions requires that a shoulder be clearly marked to qualify as a shoulder.  In these circumstances, the driving maneuver was more a technical infraction than a dangerous diversion.  But the driving conduct, like the three-point turn impeding the officer’s forward movement, is nonetheless a traffic violation.  

These observed traffic violations are independently sufficient to justify an investigatory stop.  In addition, the district court relied on the officer’s articulated suspicion that the atypical circumstances of a stopped car on a relatively untraveled roadway in the early hours of a January morning might relate to the earlier attempt-to-locate dispatch.  This suspicion of a possible connection deepened when Adelmann attempted to drive away as the officer’s car approached his car on 269th Avenue.  Because we have concluded that the driving violations justified the stop, we need not consider whether these suspicions alone would be an adequate basis for the stop or whether the presence of one person rather than two in the car would dispel a suspicion that the car might be connected to the attempt-to-locate report.  See State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989) (observing that innocent activity, especially activity indicating an effort to evade an officer, may justify suspicion of criminal activity). 

While this case was pending on review, Adelmann moved to strike a two-page letter from the appendix of the state’s appellate brief.  The letter, issued by the Minnesota Department of Public Safety, was neither filed in the district court nor admitted as an exhibit.  Appellate courts may not consider matters outside the record on appeal, and we grant the motion to strike.  See Minn. R. Civ. App. P. 110.01 (limiting the record on appeal to papers filed in district court, exhibits, and transcript). 

Affirmed; motion granted.