This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0710
Alexander Nathan Davis, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent.
Filed December 7, 2015 Affirmed Bjorkman, Judge
Hennepin County District Court File No. 27-CV-13-20151
Rick E. Mattox, Prior Lake, Minnesota (for appellant)
Lori Swanson, Attorney General, William Young, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Minge,
Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the district court’s order sustaining the revocation of his
driver’s license, arguing that (1) law enforcement was not justified in expanding the
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. scope of the traffic stop, (2) the warrantless search of his breath was unlawful, and (3) the
implied-consent law is unconstitutional. We affirm.
FACTS
On November 3, 2013, at 12:50 a.m., Trooper Francis Tutell of the Minnesota
State Patrol stopped appellant Alexander Nathan Davis’s vehicle for speeding. The
trooper approached the vehicle on the front passenger side, identified Davis, and
observed three passengers. He noticed an odor of alcohol coming from the vehicle, and
observed that Davis’s eyes were bloodshot and watery. The trooper asked Davis if he
had been drinking, and Davis responded that he had consumed two beers earlier in the
night.
The trooper asked Davis to perform field sobriety tests because he suspected Davis
was under the influence of alcohol. When Davis stepped out of the vehicle, the trooper
immediately smelled an odor of alcohol coming directly from Davis. Davis performed
several field sobriety tests, exhibiting multiple indicia of intoxication. A preliminary
breath test indicated that Davis had a 0.153 alcohol concentration. The trooper then
placed Davis under arrest and transported him to the Hennepin County Jail.
At the jail, the trooper read the implied-consent advisory to Davis and asked him if
he wanted to contact an attorney. Davis stated that he did, and the trooper provided a
phone and multiple directories. Davis called his father and spoke to him for
approximately one minute. After this conversation, the trooper asked Davis if he
contacted an attorney, and whether he wanted to continue to use the phone. The record
does not reflect whether Davis answered this question. The trooper then asked Davis if
2 he would take a breath test. Davis agreed to do so and the test results indicated an
alcohol concentration of 0.13.
Respondent Commissioner of Public Safety subsequently revoked Davis’s driver’s
license. Davis filed a petition for judicial review of the revocation. Following an
evidentiary hearing, the district court sustained the revocation, determining that the
trooper reasonably expanded the scope of the traffic stop, that a valid exception to the
warrant requirement existed for the search of Davis’s breath, and that Minnesota’s
implied-consent statute is constitutional. Davis appeals.
DECISION
I. Expansion of the traffic stop was supported by reasonable, articulable suspicion of criminal activity.
Expansion of a traffic stop is unlawful unless there is a reasonable, articulable
suspicion of criminal activity beyond the observed traffic violation. State v. Fort, 660
N.W.2d 415, 418-19 (Minn. 2003). Each additional intrusion must be justified by the
original purpose of the stop, probable cause, or reasonableness as defined in Terry. State
v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004). Reasonableness is an objective test,
based on the totality of the circumstances. State v. Smith, 814 N.W.2d 346, 351 (Minn.
2012). We review a district court’s ruling regarding the legality of a traffic stop and
questions of reasonable suspicion de novo. Wilkes v. Comm’r of Pub. Safety, 777
N.W.2d 239, 242-43 (Minn. App. 2010).
Davis first argues that the trooper did not have reasonable, articulable suspicion to
expand the traffic stop because there was no evidence that the odor of alcohol in the car
3 came from Davis and there was no foundation for the trooper’s testimony that Davis’s
eyes were bloodshot and watery. Davis also contends the district court’s aggregate
findings do not support expansion of the stop. We disagree.
This court has consistently concluded that expansion of a traffic stop is valid on
facts similar to those in this case. In State v. Klamar, we held that an odor of alcohol and
bloodshot and watery eyes justified the expansion of a traffic stop to investigate
suspicions of impaired driving. 823 N.W.2d 687, 696 (Minn. App. 2012). And in State
v. Lopez, we concluded that the odor of alcohol alone provided an officer with reasonable
suspicion of criminal activity to expand a traffic investigation. 631 N.W.2d 810, 814
(Minn. App. 2001), review denied (Minn. Sept. 25, 2001). Here, the trooper observed
that Davis had bloodshot and watery eyes, noticed an odor of alcohol, and Davis admitted
to consuming alcohol earlier in the evening. These indicia of intoxication were more
than sufficient to justify expansion of the traffic stop.
Davis next asserts that the expansion of the traffic stop was improper because the
trooper initiated the stop to conduct a driving-while-impaired (DWI) investigation. We
are not persuaded. First, Davis does not challenge the validity of the stop. Second, the
record supports the district court’s findings that the trooper stopped Davis’s vehicle for
speeding, observed numerous indicia of intoxication after making contact with Davis, and
learned that Davis had consumed alcohol that evening. Only after making these
observations did the trooper expand the stop into a DWI investigation. Third, the
trooper’s subjective reasons for stopping Davis in the first place are irrelevant. Courts
determine reasonable suspicion based on the objective circumstances. See State v. Koppi,
4 798 N.W.2d 358, 363 (Minn. 2011) (noting that the subjective beliefs of an officer are
not the focus in evaluating reasonableness); Paulson v. Comm’r of Pub. Safety, 384
N.W.2d 244, 246 (Minn. App. 1986) (stating that “articulable suspicion is an objective
standard” (quotation omitted)). On this record, we conclude that the totality of the
circumstances support the expansion of the traffic stop into a DWI investigation.
II. The search of Davis’s breath was a constitutional search incident to arrest.
The United States and Minnesota Constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A
breath test is considered a search for Fourth Amendment purposes. Mell v. Comm’r of
Pub. Safety, 757 N.W.2d 702, 709 (Minn. App. 2008). “A search conducted without a
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-0710
Alexander Nathan Davis, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent.
Filed December 7, 2015 Affirmed Bjorkman, Judge
Hennepin County District Court File No. 27-CV-13-20151
Rick E. Mattox, Prior Lake, Minnesota (for appellant)
Lori Swanson, Attorney General, William Young, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Minge,
Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the district court’s order sustaining the revocation of his
driver’s license, arguing that (1) law enforcement was not justified in expanding the
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. scope of the traffic stop, (2) the warrantless search of his breath was unlawful, and (3) the
implied-consent law is unconstitutional. We affirm.
FACTS
On November 3, 2013, at 12:50 a.m., Trooper Francis Tutell of the Minnesota
State Patrol stopped appellant Alexander Nathan Davis’s vehicle for speeding. The
trooper approached the vehicle on the front passenger side, identified Davis, and
observed three passengers. He noticed an odor of alcohol coming from the vehicle, and
observed that Davis’s eyes were bloodshot and watery. The trooper asked Davis if he
had been drinking, and Davis responded that he had consumed two beers earlier in the
night.
The trooper asked Davis to perform field sobriety tests because he suspected Davis
was under the influence of alcohol. When Davis stepped out of the vehicle, the trooper
immediately smelled an odor of alcohol coming directly from Davis. Davis performed
several field sobriety tests, exhibiting multiple indicia of intoxication. A preliminary
breath test indicated that Davis had a 0.153 alcohol concentration. The trooper then
placed Davis under arrest and transported him to the Hennepin County Jail.
At the jail, the trooper read the implied-consent advisory to Davis and asked him if
he wanted to contact an attorney. Davis stated that he did, and the trooper provided a
phone and multiple directories. Davis called his father and spoke to him for
approximately one minute. After this conversation, the trooper asked Davis if he
contacted an attorney, and whether he wanted to continue to use the phone. The record
does not reflect whether Davis answered this question. The trooper then asked Davis if
2 he would take a breath test. Davis agreed to do so and the test results indicated an
alcohol concentration of 0.13.
Respondent Commissioner of Public Safety subsequently revoked Davis’s driver’s
license. Davis filed a petition for judicial review of the revocation. Following an
evidentiary hearing, the district court sustained the revocation, determining that the
trooper reasonably expanded the scope of the traffic stop, that a valid exception to the
warrant requirement existed for the search of Davis’s breath, and that Minnesota’s
implied-consent statute is constitutional. Davis appeals.
DECISION
I. Expansion of the traffic stop was supported by reasonable, articulable suspicion of criminal activity.
Expansion of a traffic stop is unlawful unless there is a reasonable, articulable
suspicion of criminal activity beyond the observed traffic violation. State v. Fort, 660
N.W.2d 415, 418-19 (Minn. 2003). Each additional intrusion must be justified by the
original purpose of the stop, probable cause, or reasonableness as defined in Terry. State
v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004). Reasonableness is an objective test,
based on the totality of the circumstances. State v. Smith, 814 N.W.2d 346, 351 (Minn.
2012). We review a district court’s ruling regarding the legality of a traffic stop and
questions of reasonable suspicion de novo. Wilkes v. Comm’r of Pub. Safety, 777
N.W.2d 239, 242-43 (Minn. App. 2010).
Davis first argues that the trooper did not have reasonable, articulable suspicion to
expand the traffic stop because there was no evidence that the odor of alcohol in the car
3 came from Davis and there was no foundation for the trooper’s testimony that Davis’s
eyes were bloodshot and watery. Davis also contends the district court’s aggregate
findings do not support expansion of the stop. We disagree.
This court has consistently concluded that expansion of a traffic stop is valid on
facts similar to those in this case. In State v. Klamar, we held that an odor of alcohol and
bloodshot and watery eyes justified the expansion of a traffic stop to investigate
suspicions of impaired driving. 823 N.W.2d 687, 696 (Minn. App. 2012). And in State
v. Lopez, we concluded that the odor of alcohol alone provided an officer with reasonable
suspicion of criminal activity to expand a traffic investigation. 631 N.W.2d 810, 814
(Minn. App. 2001), review denied (Minn. Sept. 25, 2001). Here, the trooper observed
that Davis had bloodshot and watery eyes, noticed an odor of alcohol, and Davis admitted
to consuming alcohol earlier in the evening. These indicia of intoxication were more
than sufficient to justify expansion of the traffic stop.
Davis next asserts that the expansion of the traffic stop was improper because the
trooper initiated the stop to conduct a driving-while-impaired (DWI) investigation. We
are not persuaded. First, Davis does not challenge the validity of the stop. Second, the
record supports the district court’s findings that the trooper stopped Davis’s vehicle for
speeding, observed numerous indicia of intoxication after making contact with Davis, and
learned that Davis had consumed alcohol that evening. Only after making these
observations did the trooper expand the stop into a DWI investigation. Third, the
trooper’s subjective reasons for stopping Davis in the first place are irrelevant. Courts
determine reasonable suspicion based on the objective circumstances. See State v. Koppi,
4 798 N.W.2d 358, 363 (Minn. 2011) (noting that the subjective beliefs of an officer are
not the focus in evaluating reasonableness); Paulson v. Comm’r of Pub. Safety, 384
N.W.2d 244, 246 (Minn. App. 1986) (stating that “articulable suspicion is an objective
standard” (quotation omitted)). On this record, we conclude that the totality of the
circumstances support the expansion of the traffic stop into a DWI investigation.
II. The search of Davis’s breath was a constitutional search incident to arrest.
The United States and Minnesota Constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A
breath test is considered a search for Fourth Amendment purposes. Mell v. Comm’r of
Pub. Safety, 757 N.W.2d 702, 709 (Minn. App. 2008). “A search conducted without a
warrant is per se unreasonable unless an exception applies.” Ellingson v. Comm’r of Pub.
Safety, 800 N.W.2d 805, 807 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011).
A warrantless breath test does not violate the Fourth Amendment because it satisfies the
search-incident-to-arrest exception to the warrant requirement. State v. Bernard, 859
N.W.2d 762, 767 (Minn. 2015).
Probable cause to arrest an individual for DWI exists if the circumstances at the
time of arrest reasonably warrant a prudent and cautious officer to believe the person was
driving under the influence. Reeves v. Comm’r of Pub. Safety, 751 N.W.2d 117, 120
(Minn. App. 2008). An officer’s observation of objective indications of intoxication
establishes probable cause to believe a person is under the influence of alcohol. State v.
Kier, 678 N.W.2d 672, 678 (Minn. App. 2004), review denied (Minn. June 15, 2004).
Common indicia of intoxication include the odor of alcohol, bloodshot and watery eyes,
5 slurred speech, and uncooperative behavior. Id.; see also Mell, 757 N.W.2d at 712
(holding that a failed preliminary breath test, in combination with other indicia of
intoxication, provided sufficient probable cause for DWI arrest). An admission of
consuming alcohol and difficulty performing field sobriety tests also indicate
intoxication. Reeves, 751 N.W.2d at 120.
Davis asserts that the search-incident-to-arrest exception does not apply because
the trooper did not have probable cause to arrest him. We disagree. The trooper
observed several recognized indicia of intoxication. Davis emitted an odor of alcohol,
had bloodshot and watery eyes, and admitted consuming alcohol prior to driving. He
performed poorly on multiple field sobriety tests, and his preliminary breath test
registered an alcohol concentration of 0.153. Because the trooper had probable cause to
arrest Davis for DWI, the breath test was a valid search incident to arrest under Bernard.
Finally, Davis argues that the implied-consent advisory statute is unconstitutional
because it violates his due-process rights and the doctrine of unconstitutional conditions.
These arguments are unavailing. Our supreme court rejected the due-process argument in
Bernard, holding that rational-basis review applies and that this standard is met because
the statute criminalizing the refusal of chemical testing is a reasonable means to fulfilling
the government’s interest in keeping impaired drivers off the road.1 859 N.W.2d at 774.
And this court held in Stevens v. Comm’r of Pub. Safety that the unconstitutional-
conditions doctrine does not apply in the context of the Fourth Amendment, and even if it
1 We note that this argument is most appropriately addressed in a criminal proceeding rather than in the civil implied-consent context, but the argument fails in both settings.
6 did, the statute does not authorize a search that violates the Fourth Amendment. 850
N.W.2d 717, 725 (Minn. App. 2014).
Affirmed.