This opinion will be unpublished and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

A06-1261

 

 

Justin Henry Akkerman, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed May 1, 2007

Affirmed

Lansing, Judge

 

 

Carlton County District Court

File Nos. 09-CV-05-3185, 09-CR-05-3100

 

 

Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

 

Lori Swanson, Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101  (for respondent)

 

 

            Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Justin Akkerman challenges the district court’s decision sustaining the revocation of his driver’s license.  Akkerman argues that he was illegally seized when a police officer handcuffed him after stopping his all-terrain vehicle and, therefore, any evidence obtained after the handcuffing must be suppressed.  Because the evidence of Akkerman’s intoxication was properly admitted, we affirm.

F A C T S

            At 3:15 a.m. on a Sunday morning, a Moose Lake police officer observed two all-terrain vehicles (“ATVs”) driving on a public road without illuminated headlights.  Based on these observations, the officer thought that “perhaps they were stolen vehicles.”  The officer then learned from dispatch that a woman who lived near a local ATV dealer had reported hearing “four-wheelers and thought it sounded suspicious at that hour of the morning.”  Relying on the report and his own suspicions, this officer believed that there was “a good possibility these are stolen and they’re coming from the dealership.”

            The officer activated his emergency lights and pulled over next to the ATVs.  The order of events during the stop is unclear.  At some point during the stop, the officer placed Akkerman in handcuffs because he “strongly suspected” that the ATVs were stolen.  After Akkerman was in handcuffs, the officer determined that the ATVs were not stolen.  Also, at some point during the stop, the officer observed signs that Akkerman was intoxicated.

            Akkerman failed a preliminary breath test and he was arrested.  At the police station, Akkerman took an Intoxilyzer test that indicated he had an alcohol concentration of about 0.17.  Akkerman’s driver’s license was revoked under the provisions of Minn. Stat. § 169A.52, subd. 4(a) (2004), and Akkerman petitioned for judicial review.  Following a hearing, the district court sustained the license revocation.  In this appeal, Akkerman argues that the evidence obtained after the handcuffing should have been suppressed.

D E C I S I O N

            The state and federal constitutions protect against unreasonable searches and seizures.  U.S. Const. amends. IV, XIV; Minn. Const. art. I, § 10.  A brief, investigatory stop is reasonable if a police officer knows of specific and articulable facts that objectively support a suspicion of criminal activity.  State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004).  We review a district court’s findings of facts for clear error.  State v. Blom, 682 N.W.2d 578, 616 (Minn. 2004).  As applied to specific facts, the reasonableness of a seizure presents a question of law, which we review de novo.  State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).

            Akkerman has not challenged the district court’s determination that the police officer observed Akkerman driving an ATV without its headlights illuminated along a public road in violation of Minn. Stat. § 84.928, subds. 1(a), 2(3) (Supp. 2005).  Thus, it is undisputed on appeal that the officer properly stopped Akkerman’s ATV.  The issue is whether the officer’s subsequent handcuffing of Akkerman was an unreasonable seizure that makes the intoxication evidence inadmissible because it is the product of an illegal arrest.  See Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963) (holding that evidence discovered as result of exploiting previous illegality is inadmissible).

            The ATV violations alone were insufficient to justify a custodial arrest.  See State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004) (holding that some crimes, such as traffic violations, are so minor that custodial arrest cannot be justified); see also Minn. R. Crim. P. 6.01, subd. 1(1)(a) (limiting warrantless arrests for misdemeanors).  Therefore, the ATV violations, viewed in isolation, did not permit the officer to handcuff Akkerman as part of an arrest. 

Handcuffing a suspect, however, does not by itself transform an investigatory stop into an arrest.  See State v. Walsh, 495 N.W.2d 602, 605 (Minn. 1993) (holding that handcuffed suspect was not under arrest).  Handcuffing qualifies as an intrusion that exceeds the scope of an ordinary investigatory stop.  Typically, forced movements are not justified during an investigative stop unless necessary for “reasons of safety and security.”  Florida v. Royer, 460 U.S. 491, 504, 103 S. Ct. 1319, 1328 (1983) (plurality opinion).  Minnesota courts have approved handcuffing and similar intrusions during investigatory stops only when additional reasons existed to support an officer’s belief that the suspect presented a threat.  See Walsh, 495 N.W.2d at 605 (permitting handcuffing of suspect found at murder scene); State v. Moffatt, 450 N.W.2d 116, 119-20 (Minn. 1990) (permitting sixty-one-minute detention of suspects driving from scene of burglary); State v. Nading, 320 N.W.2d 82, 84 (Minn. 1982) (permitting burglary suspects, who were believed to possess handguns, to be ordered to lie on ground).   

            Regardless of whether a custodial arrest was justified, we conclude that the officer was justified in handcuffing Akkerman.  The officer testified that he was working alone, that it was late at night, and that he did not know Akkerman.  Under Askerooth, these factors by themselves are insufficient to support additional detention during an investigatory stop.  681 N.W.2d at 368-69.  But other factors, substantiated in the record, objectively support the officer’s action.  First, the officer had stopped two ATV drivers and was outnumbered.  Second, because Akkerman and his companion were both driving ATVs, neither could be safely confined within his own vehicle.  Third, the police had received a phone call complaining about the ATV drivers.  The phone call did not provide evidence that the ATVs had been stolen, but it did give the officer an additional reason for heightened awareness about his safety.  Fourth, the record indicates that the officer observed signs of intoxication before handcuffing Akkerman.  We therefore conclude that under the circumstances the handcuffing was justified by reasons of safety and security.  Thus, the officer did not conduct an illegal search.

            In addition, we note that regardless of whether Akkerman was properly handcuffed, the evidence of Akkerman’s intoxication was admissible.  In general, evidence is inadmissible if it is found as a result of an illegal search or seizure.  State v. Harris, 590 N.W.2d 90, 97 (Minn. 1999).  But if the evidence would have been inevitably discovered, the evidence need not be excluded.  In re Welfare of J.W.K., 583 N.W.2d 752, 756 (Minn. 1998).  Under the circumstances, the officer undoubtedly would have checked for intoxication at some point during the stop.  The officer would have observed in the course of a reasonable investigatory detention that Akkerman was heavily intoxicated and had bloodshot eyes.  Because Akkerman’s intoxication would have been inevitably discovered, it was properly admitted as evidence of Akkerman’s impaired driving.

            Affirmed.