This opinion will be unpublished and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

A05-1216

 

State of Minnesota,
Appellant,

vs.

David Michael Simrell,
Respondent.

 

Filed January 31, 2006

Affirmed

Peterson, Judge

 

Sibley County District Court

File No. 72-CR-05-20

 

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

 

David E. Schauer, Sibley County Attorney, Aaron Jones, Assistant County Attorney, 307 North Pleasant Avenue, Box H, Winthrop, MN  55396 (for appellant)

 

Mark D. Nyvold, Special Assistant, State Public Defender, 332 Minnesota Street, Suite W-1610, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a pretrial order suppressing evidence and dismissing charges of fourth-degree driving while intoxicated and possession of an open bottle, appellant State of Minnesota argues that the district court erred in ruling that the state did not meet its burden of proving sufficient cause for the investigative stop.  We affirm.

FACTS

            Respondent David Michael Simrell was at the High Island Hide Away (The Hide Away) in New Auburn at approximately 2:00 a.m.  Deputy Shaun Pomplun drove into the parking lot and spoke briefly with three groups of people in the lot.  Pomplun left the parking lot and headed north on State Highway 22 toward the McLeod County line. 

According to Pomplun’s testimony, after he reached the county line, approximately three miles away from The Hide Away, he turned around and headed south on State Highway 22; when he passed The Hide Away, the parking lot was empty.  Pomplun saw taillights of a vehicle heading southbound approximately halfway through town.  Pomplun testified that he sped up to catch the vehicle then paced behind at a distance of 50 to 75 yards.  He followed the vehicle for approximately one and a half to two miles on State Highway 22 and saw it cross the fog line two times and the center line two times.  The vehicle turned left onto County Road 12, traveled .4 miles, and then turned left onto 216th Street; the deputy did not see any further violations.  Pomplun testified that based on his experience and training as a deputy, he believed that he had observed a traffic violation, and he stopped the vehicle as it turned onto 216th Street.  Pomplun’s in-car video camera did not capture the vehicle’s alleged traffic violation.  The camera is automatically activated when the squad car’s overhead red lights come on or can be turned on manually.

Simrell was driving the car.  During the stop, Pomplun noted that Simrell’s eyes were bloodshot and watery, and he detected a strong odor of alcohol.  After an implied consent advisory, Simrell submitted to a breath test, which indicated an alcohol concentration of .14.  Simrell was cited for fourth-degree driving while impaired and allowing an open container.

At an omnibus hearing, Simrell testified that he left The Hide Away shortly after Pomplun left.  He specifically noted which direction Pomplun went, and then he drove in the opposite direction.  Simrell testified that Pomplun’s vehicle was approximately a quarter mile north before he pulled onto the highway going southbound.  When Simrell’s vehicle was on a hill approximately a quarter mile before the intersection of County Road 12, Simrell and a passenger saw the police car and estimated that it was about one to one and a half miles behind Simrell’s vehicle.

Simrell stated that he “drove fine” because he knew the officer was behind him and that he probably should not have been driving.  Simrell stated that he did not cross the center or fog lines, but then testified that he was watching the headlights in his rearview mirror and may have crossed the center line because he was distracted from his driving. 

The district court dismissed the charges against Simrell, finding “that the State has not met its burden of proving that there was sufficient cause to stop the vehicle, the evidence discovered as a result of that stop must be suppressed.  There is, therefore, insufficient probable cause to continue the prosecution.”  This appeal followed.

D E C I S I O N

When the state appeals a pretrial order that suppresses evidence, it must clearly and unequivocally show that the district court’s order will have a critical impact on the state’s ability to successfully prosecute the defendant and that the order constituted error.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998); see also Minn. R. Crim. P. 28.04 (governing appeals by prosecuting attorney).  “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.”  Id. There is no dispute that the critical-impact requirement is met here because suppression of the evidence obtained as a result of the stop resulted in dismissal of the charges.  See State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987) (stating that critical impact has been shown in cases where the lack of the suppressed evidence completely destroys the state’s case). 

            “In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.”  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  We review the district court’s findings of fact for clear error and “give due weight to inferences drawn from those facts by [district court] judges.”  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996)); see also Minn. R. Civ. P. 52.01 (stating that district court’s findings will not be set aside unless clearly erroneous).  A district court’s finding is clearly erroneous when this court, after reviewing the record, reaches the firm conviction that a mistake was made.  State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).  If the facts relating to admissibility of evidence are disputed, the district court “acts as finder of facts, deciding for purposes of admissibility which evidence to believe and whether the state has met its burden of proof.”  State v. LaFrance, 302 Minn. 245, 246, 223 N.W.2d 813, 814 (1974).

“A brief investigatory stop requires only reasonable suspicion of criminal activity, rather than probable cause.”  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).  Police need not observe an actual violation of the traffic laws to stop a vehicle.  Id.  “The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’”  Id. at 921-22 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).

            The state argues that the district court erred as a matter of law in finding that the state had not met its burden of showing that there was sufficient cause to conduct an investigative stop of Simrell’s vehicle.  The state contends that Pomplun’s testimony establishes that he saw Simrell’s vehicle cross the center line and the fog line twice, and the district court specifically found in its order that “[o]n its face, the officer’s testimony is credible and believable.”  Therefore, the state argues, the district court erred in concluding that the state did not meet its burden of proof because “[w]hen there is credible testimony that the driver actually crossed the center line, this court and the supreme court have uniformly found investigatory stops valid.”  State v. Wagner, 637 N.W.2d 330, 335 (Minn. App. 2001).

            But by selectively quoting only part of the district court’s statement about the officer’s credibility, the state misrepresents the district court’s credibility determination.   The complete statement in the district court’s memorandum is, “On its face, the officer’s testimony is credible and believable, and so is the consistent testimony offered by each of the three defense witnesses — one of whom had a .000 BAC.”  The district court also stated in its memorandum:

            There was a dramatic divergence in the testimony the Court received.  It is apparent that the officer could not have patrolled to the county line and returned in time to observe [Simrell’s] vehicle heading south out of New Auburn if [Simrell] left the parking lot when he and his passengers testified that they did.

 

            This presents a real dilemma for the Court.  All the witnesses appear credible, including [Simrell].  While someone’s version of the events as they occurred is obviously in error, the Court, based on the testimony alone, cannot determine which it is. 

 

            Deputy Pomplun, however, had the ability to remove the doubt from this Court’s decision by simply turning on the video recorder and documenting the events as they happened.  The Court is most willing to concede that this was an inadvertent, and not intentional, omission.  Nonetheless, it becomes the tipping point for this Court’s determination in finding [Simrell] and his witnesses’ version of the events more credible.

 

These statements indicate that the district court found Pomplun’s and the defense witnesses’ stories equally credible but also recognized that because the stories were inconsistent, one of the stories had to be incorrect.  This is not the same thing as the district court finding that Pomplun was more credible than the defense witnesses; in fact, the district court ultimately stated that Simrell and his witnesses were more credible than Pomplun.

It is not clear what the district court meant when it stated that Pomplun’s inadvertent failure to turn on the video recorder was the tipping point for the court’s finding that the defense witnesses’ version of events was more credible.  The state contends that the district court created a legal requirement that officers must videotape conduct in order to establish facts.  But it appears that the district court may simply have meant that a videotape could have bolstered Pomplun’s credibility and prevented the prosecution and the defense versions of events from being equally credible.

We need not determine exactly what the district court’s comment meant, however, because it is apparent that the district court did not find Pomplun more credible than the defense witnesses.  The district court’s memorandum indicates that the court found either that the defense witnesses were more credible than Pomplun, or that the defense witnesses and Pomplun were equally credible.  If the district court found that the defense witnesses were more credible than Pomplun, we defer to that determination and affirm the district court.  See State v. Miller, 659 N.W.2d 275, 279 (Minn. App. 2003) (stating that weight and believability of witness testimony is issue for district court, and appellate court defers to district court’s credibility determinations).  And if the district court found that Pomplun and the defense witnesses were equally credible, we affirm the district court because the state had the burden of proving that the stop was based upon specific and articulable facts which, together with rational inferences from those facts, warranted the stop, and the state failed to meet this burden.  See State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 554, 141 N.W.2d 3, 13-14 (1965) (stating that if defendant elects to contest admissibility of evidence upon federal constitutional grounds, pretrial fact hearing will be held at which it will be state’s obligation to show that circumstances under which evidence was obtained were consistent with constitutional requirements).

 The state has not cited any authority that indicates that the standard for proving a fact at a pretrial hearing is anything other than a preponderance of the evidence.  See State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995) (stating that in pretrial suppression hearing at which defendant seeks suppression of confession on ground that confession was involuntary, state has burden of proving voluntariness by fair preponderance of evidence); State v. Wajda, 296 Minn. 29, 32, 206 N.W.2d 1, 3 (1973) (holding “that the trial court should follow the preponderance-of-the-evidence, not the reasonable-doubt, standard in determining the admissibility of confessions”).

The preponderance of the evidence standard requires that to establish a fact, it must be more probable that the fact exists than that the contrary exists.  If evidence of a fact or issue is equally balanced, then that fact or issue has not been established by a preponderance of the evidence.

 

City of Lake Elmo v. Metro. Council, 685 N.W.2d 1, 4 (Minn. 2004) (citation omitted).

If the district court found the prosecution and the defense accounts of the events that preceded the stop equally credible, the fact that Pomplun believed that he had observed a traffic violation was not established by a preponderance of the evidence, and the state did not meet its burden of showing that the circumstances of the stop were consistent with constitutional requirements.

The state argues that inconsistencies in the testimony of the defense witnesses demonstrate that the district court’s finding that the defendant and his witnesses were more credible than Pomplun is clearly erroneous.  The inconsistencies do raise credibility

issues, which the district court obviously recognized, but, after reviewing the record, we do not reach the firm conviction that a mistake was made.

            Affirmed.