This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-646

A06-696

 

 

Nicholas Lee Staples, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent (A06-646);

 

State of Minnesota,

Respondent,

 

vs.

 

Nicholas L. Staples, Appellant (A06-696).

 

 

Filed ­­­April 17, 2007

Affirmed

Dietzen, Judge

 

Nobles County District Court

File Nos. 53-CV-05-850; CR-05-858

 

Lynne A. Torgerson, 80 South Eighth Street, Suite 900 IDS Center, Minneapolis, MN 55402 (for appellant)

 

Lori Swanson, Attorney General, Jeffrey F. Lebowski, Joan M. Eichhorst, Assistants Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent A06-646)

 

Gordon L. Moore, III, Nobles County Attorney, William A. Lemons, Assistant County Attorney, 1530 Airport Road, Suite 400, Worthington, MN 56187 (for respondent A06-696)

 

            Considered and decided by Hudson, Presiding Judge; Dietzen, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

In this consolidated appeal, appellant Nicholas L. Staples challenges his conviction of driving while impaired (DWI) and the district court’s order sustaining the revocation of his driver’s license.  Appellant argues that the district court (1) erred in finding that the police had a reasonable, articulable suspicion of criminal activity to support an investigatory stop, and (2) abused its discretion in making various evidentiary rulings.  We affirm.

FACTS

            In September 2005, the City of Worthington was having its annual “Turkey Days” celebration in the downtown area.  A Worthington police officer was on patrol and observed appellant backing his car out of a diagonal parking space on Sixth Avenue.  Appellant then continued to back up in the right lane for a distance the officer later measured at approximately 37 feet.  The officer testified that this distance was “beyond a normal backup.”  Because the downtown area was very busy at this time, the officer believed that appellant’s driving was unsafe.  When appellant pulled his car into a different parking space, the officer parked behind appellant’s car to talk to him.  Appellant then got out of his car, approached the officer, and appellant admitted to having too much to drink. 

The officer observed that appellant had bloodshot, watery eyes and smelled of alcohol, so he administered field sobriety testing and asked appellant to submit to a Preliminary Breath Test (PBT).  The first PBT test was unsuccessful because the officer’s PBT device had a faulty battery and was not functioning properly.  The officer then obtained a different PBT machine and administered the test, which indicated that appellant’s alcohol concentration was .093.  The officer placed appellant under arrest and transported him to the Nobles County Jail where appellant submitted to an Intoxilyzer test.  That test showed that appellant’s alcohol concentration was .08.  Appellant’s driver’s license was then revoked under the Implied Consent Law, Minn. Stat. §§ 169A.50 to .53 (2004), and appellant was later charged with third-degree gross-misdemeanor DWI because of a previous DWI conviction. 

            At a consolidated implied consent and criminal omnibus hearing, appellant sought to overturn the revocation of his driver’s license and to dismiss the criminal case, alleging, inter alia, that the police lacked a reasonable, articulable suspicion of criminal activity to support an investigatory stop.  The officer testified at the hearing regarding the basis for the stop and the details of the events that followed.  During the hearing, the district court received, over appellant’s hearsay objection, the police report, the Intoxilyzer test results, and the notice and order of revocation. 

Appellant also testified.  He stated that he attended the Turkey Days celebration and after dinner, “had three glasses of beer or so,” followed by “three more beers” at the beer garden.  While at the beer garden, appellant learned that he parked his car in a tow-away zone and went to move it.  When he began backing out of the diagonal parking space, he observed a police car across the street and “knew that [the officer] was coming to talk to me,” so he continued backing two or three spaces and then pulled the car forward into a different diagonal space.   

Following the hearing, the district court filed findings of fact, conclusions of law, and an order sustaining the commissioner’s order revoking appellant’s driver’s license and filed an order denying appellant’s motion to dismiss the criminal charge.  At trial, appellant entered a Lothenbach plea and stipulated to the elements of the offense to preserve his right to challenge the district court’s order denying his motion to dismiss.  The district court found appellant guilty, and this appeal follows.

D E C I S I O N

I.

Appellant argues that the police lacked a reasonable, articulable suspicion to stop him, and, therefore, the district court erred in denying his motion to dismiss.  “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); Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

The United States and Minnesota constitutions protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Warrantless searches are presumptively unreasonable subject to specific, well-delineated exceptions.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1976).  An investigatory stop does not violate the prohibition against unreasonable search and seizure if the officer has a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, (1968).  The Minnesota Supreme Court has held that the principles in Terry apply to traffic stops because routine traffic stops are more analogous to investigatory stops than to arrests.  State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004).

Minnesota cases require very little justification for an investigatory stop.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997); State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996).  The proper inquiry is whether an officer, under the totality of the circumstances at the time of the stop, had a reasonable suspicion of criminal activity.  Berge, 374 N.W.2d at 732.  Minnesota courts are deferential to police officers, whose training and experience allow them to recognize and act upon suspicions that would elude the untrained eye.  Id. 

The district court found that appellant’s action of driving in reverse “for an unusual distance” was “potentially dangerous because of the large amount of traffic in Worthington that night” and was a valid basis for stopping appellant.  We agree.  The officer saw appellant back out of a tow-away zone and continue backing for 37 feet in a direction that was opposite the legal direction of traffic in that lane.  When the stop occurred, the downtown area was busy, and it was dark.  The record supports the district court’s conclusion that appellant’s driving was potentially dangerous and constituted a reasonable, articulable suspicion of criminal activity.

Appellant argues that the stop was legally flawed because the officer had the mistaken belief that there was an “unsafe backing” law that prohibited backing up for an unreasonable distance on the roadway.   Appellant relies on George, 557 N.W.2d 575, to argue that a mistaken belief by an officer that conduct is illegal is not a valid basis for a stop.  But George is factually distinguishable because it involved a state trooper’s mistaken belief that a motorcycle had an illegal lighting configuration.  Here, the officer was correct about the objective facts, but was mistaken that there was a statute that specifically addressed unsafe backing. 

But even if the officer was mistaken about the “unsafe backing” law, his traffic stop of appellant is valid if the objective facts provide a legal basis for the stop.  Erratic or unusual driving can be an objective basis for an investigatory traffic stop.  Britton, 604 N.W.2d at 89 (even “wholly lawful conduct might justify the suspicion that criminal activity is afoot”); Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 923 (Minn. App. 2000) (holding that a traffic stop was justified even though the driver was merely swerving within his own lane, which is not a traffic violation).

On this record, the district court did not abuse its discretion in concluding that the officer had a reasonable, articulable suspicion to support a traffic stop of appellant.  The objective facts establish that appellant was driving backwards, against traffic, for an unusually long distance, on a night when the downtown area was busy.

II.

 

Appellant argues that the district court erred in making three evidentiary rulings at the consolidated implied consent and omnibus hearing.  Evidentiary rulings will not be reversed absent a clear abuse of that discretion.  State v. Bobadilla, 709 N.W.2d 243, 256 (Minn. 2006).  Evidentiary errors warrant reversal if “there is any reasonable doubt the result would have been different had the evidence not been admitted.”  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996). 

Appellant first argues that the district court erred by admitting, over his hearsay objections, police documents including the police report, the Intoxilyzer test results, and the notice of revocation.  But even if the police documents were hearsay, appellant bears the burden of showing that he was prejudiced because the outcome would have been different without the admission of that evidence.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003);  Grayson, 546 N.W.2d at 736.  Here, the officer testified at the hearing and was subject to cross examination.  On this record, we see no prejudice.

Appellant next argues that the district court abused its discretion by (1) sustaining foundation and relevance objections to photographs of the scene of the stop, and (2) concluding that appellant failed to make a sufficient offer of proof regarding their relevance.  Appellate courts review a district court’s rulings on the sufficiency of offers of proof under an abuse of discretion standard.  Santiago v. State, 644 N.W.2d 425, 442 (Minn. 2002).  Appellant contends that the photographs showed the scene of the stop and the distances involved.  But appellant admitted that the photographs contain no scale or means of measuring distance and that the conditions they depicted were different from the conditions that existed during Turkey Days.  On this record, we see no abuse of discretion.

Appellant next argues that the district court abused its discretion by sustaining relevancy objections to the proposed testimony of Teresa Peterson, appellant’s aunt, who observed “approximately four police stops in about a half an hour for seemingly no reason” in the downtown area that evening; and David Fenske, appellant’s uncle, who would testify that the police stopped him in the downtown area that night, asked him if he had been drinking, and then released him without a ticket.  The district court sustained relevancy objections to the proposed testimony.

Appellant argues that the testimony “is relevant, shows bias, and would be evidence of motive and a pattern.”  But appellant fails to articulate either the legal or factual basis for his argument.  “An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). 

But even if we were to consider appellant’s argument, we conclude that it lacks merit.  Neither witness was present when the officer stopped appellant, and neither witness had any interactions with the officer.  In short, appellant has failed to establish how the proposed testimony is relevant to whether the officer had reasonable suspicion to
stop appellant under the circumstances.  On this record, we conclude that the district court did not abuse its discretion by excluding the testimony.

            Affirmed.