Gerald John Westman v. Commissioner of Public Safety

• Court: Court of Appeals of Minnesota
• Decided: August 25, 2014
• Docket: A13-1703
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA IN COURT OF APPEALS A13-1703

Gerald John Westman, petitioner, Appellant,

vs.

Commissioner of Public Safety, Respondent.

Filed August 25, 2014 Affirmed Stauber, Judge

Blue Earth County District Court File No. 07CV102187

Shane C. Perry, Perry & Perry, P.L.L.P., Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Stauber, Presiding Judge; Worke, Judge; and

Larkin, Judge.

UNPUBLISHED OPINION

STAUBER, Judge

In an appeal from the district court’s order sustaining the revocation of his driver’s

license under the implied-consent law for failing a breath test, appellant argues that (1) in

upholding the stop, the district court relied only on the tip from a citizen-informant and

ignored the testimony of the police officer as to his unimpaired driving conduct; (2) there was no evidence of intoxication supporting the officer’s expansion to administer field

sobriety tests; (3) the officer lacked probable cause to arrest appellant for driving while

intoxicated (DWI); (4) the breath-test evidence should not have been admitted because

the police did not obtain a warrant and the state failed to prove that appellant validly

consented to the search; and (5) the implied-consent law is unconstitutional. We affirm.

FACTS

On June 19, 2010, at approximately 11:22 p.m., Mankato Police Officer Steven

Hoppe received a complaint from dispatch regarding a vehicle that was “swerving, [and]

weaving on the road in front of the complaining party.” The complaint was from an

identified citizen informant who provided the police with his name, contact information,

the location of the vehicle, and a description of the vehicle that included the vehicle’s

license-plate number. Officer Hoppe located the vehicle and followed it for about a mile

until the vehicle exited the highway at a location where a vehicle stop would not

endanger anyone. The driver of the vehicle was identified as appellant Gerald Westman.

Upon speaking with appellant, Officer Hoppe detected a faint odor of alcohol

emanating from the vehicle and from appellant’s person. Officer Hoppe also observed

that appellant’s eyes were watery and glassy and that his pupils were dilated. Because

these observations indicated that appellant could be intoxicated, Officer Hoppe

performed a “mini version of the [horizontal gaze nystagmus (HGN) test] with

[appellant] seated in the vehicle.” Officer Hoppe observed three to four clues while

conducting this test indicating that appellant was likely intoxicated. Officer Hoppe asked

appellant to exit the vehicle and conducted a full HGN test and observed “all six clues”

2 indicating alcohol impairment. Officer Hoppe also observed that appellant had good

speech, normal reactions to instructions, and a polite attitude. Appellant consented to

take a preliminary breath test (PBT). The test results showed an alcohol concentration of

.127. Appellant was arrested for DWI and read the implied-consent advisory. Appellant

consented to a breath test, which revealed an alcohol concentration of .10. Based on the

result of the breath test, respondent Minnesota Commissioner of Public Safety revoked

appellant’s driver’s license.

Appellant petitioned the district court to rescind the driver’s-license-revocation

order, arguing (1) that the stop of his vehicle was not based on reasonable suspicion;

(2) he was arrested without probable cause; (3) the implied-consent law is

unconstitutional on its face; and (4) his consent to alcohol-concentration testing was not

voluntary because he was warned that failure to submit to testing was a crime. Following

a hearing and after considering the parties’ written memoranda, the district court denied

appellant’s petition, concluding that the stop and arrest were both lawful, appellant’s

consent to testing was valid, and the implied-consent law does not violate the

constitution. This appeal followed.

DECISION

I. Lawfulness of the initial stop

Appellant argues that Officer Hoppe’s initial stop of appellant’s vehicle was

unlawful because the district court failed to consider that Officer Hoppe never observed

3 appellant’s vehicle weave or violate any traffic laws.1 “We review a district court’s

determination regarding the legality of an investigatory 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). But “[w]e review the district court’s findings of fact for clear

error.” State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011). “In accordance with the

Fourth Amendment, a police officer may not stop a vehicle without a specific and

articulable suspicion of a violation.” Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326,

328 (Minn. App. 2001), review denied (Minn. Mar. 19, 2002). Only a minimal factual

basis is required to maintain the lawfulness of a routine traffic stop. Id. Reasonable

suspicion is based upon an examination of the totality of the circumstances. O’Neill v.

Comm’r of Pub. Safety, 361 N.W.2d 471, 473 (Minn. App. 1985). “[T]rained law-

enforcement officers may make inferences and deductions that might well elude an

untrained person.” Id. (quotation omitted).

Appellant asserts that Officer Hoppe lacked reasonable suspicion to stop

appellant’s vehicle, or that the suspicion based upon the informant’s tip had dissipated,

because Officer Hoppe followed appellant for one mile and did not personally observe

anything suspicious about the vehicle or appellant’s driving. But an officer need not

personally observe a traffic violation in order to justify a traffic stop. Marben v. State,

1 The state asserts that appellant waived this argument. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that matters not argued to and considered by the district court are not reviewable). Although there is some confusion in the transcript, appellant did raise this issue to the district court in his written memorandum following the close of testimony. And the district court addressed the argument thoroughly in its opinion. Therefore, we conclude that the argument was not waived.

4 Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980); Rose, 637 N.W.2d at 328. “An

informant’s tip may be adequate to support an investigative stop if the tip has sufficient

indicia of reliability.” Magnuson v. Comm’r of Pub. Safety, 703 N.W.2d 557, 560 (Minn.

App. 2005). There are two factors in determining the reliability of an informant’s tip:

“(1) identifying information given by the informant, and (2) the facts that support the

informant’s assertion that a driver is under the influence.” Id. (quotation omitted).

“Identified citizen informants are presumed to be reliable.” Id. And an officer is entitled

to rely upon information from an informant who provides his contact information so that

“he may be located and held accountable for providing false information.” Id. (quotation

omitted).

In this case, the informant supplied police dispatch with his name and contact

information and stated that he observed a black Ford F-150 swerving on the road and

provided the vehicle’s license-plate number as well as the vehicle’s precise location and

direction of travel.2 Because the informant was an identified private citizen, the

information is presumed reliable. See Marben, 294 N.W.2d at 699. Moreover, the

informant supplied sufficient facts from which a reasonable officer could conclude that

the driver of the suspected vehicle was impaired and that the informant personally saw

the impaired driving conduct. See Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921-

22 (Minn. App. 2000) (informant’s tip reliable where the informant provided his name

and gave the location and direction of travel of the suspect vehicle). These facts are

2 The only indication of what the informant said to the police is Officer Hoppe’s testimony regarding what dispatch told him the informant said. The informant did not testify, and the informant’s phone call to dispatch was never admitted as evidence.

5 sufficient to meet the minimal requirement of reasonable, articulable suspicion for a

traffic stop. See Marben, 294 N.W.2d at 699 (discussing the “minimal” factual basis

required for a traffic stop).

II. Lawfulness of the field sobriety testing and PBT

Appellant also argues that Officer Hoppe lacked reasonable suspicion to require

appellant to submit to field sobriety testing and a PBT because the officer’s observations

of appellant were not inconsistent with characteristics of a sober person. Appellant

asserts that he exhibited clear speech, that his pupils were dilated because it was dark

outside, and that his eyes were watery because it was late, and he was tired. Appellant

also asserts that Officer Hoppe’s suspicion should have been dispelled when appellant

stated that he had not been drinking.

“An initially valid stop may become invalid if it becomes intolerable in its

intensity or scope.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (quotation

omitted). “[E]ach incremental intrusion during a stop must be strictly tied to and justified

by the circumstances which rendered [the initiation of the stop] permissible.” Id.

(quotation omitted). Further intrusions must be justified by “(1) the original legitimate

purpose of the stop, (2) independent probable cause, or (3) reasonableness.” Id. at 365.

During a traffic stop, an officer may not “disregard known facts dispelling the suspicion”

that a crime is afoot. State v. Fiebke, 554 N.W.2d 755, 757 (Minn. App. 1996).

But Officer Hoppe testified that his observations of appellant confirmed his

suspicions that appellant was driving while intoxicated. Officer Hoppe detected an odor

of alcohol emanating from the vehicle and from appellant’s person. He also observed

6 that appellant’s eyes were watery and glassy and that his pupils were dilated, which are

symptoms of a “central nervous system depressant” such as alcohol. Officer Hoppe

asked appellant if he had been drinking, and appellant denied drinking, whereupon

Officer Hoppe performed a quick HGN test and observed additional signs of intoxication.

These observations taken together with the informant’s observations of appellant’s

driving conduct support the officer’s reasonable suspicion that appellant was driving

while intoxicated. Moreover, Officer Hoppe testified that, in his professional experience,

intoxicated drivers sometimes have clear speech and adequate balance, and that these

factors do not necessarily dispel an officer’s suspicion of intoxication. Therefore,

because Officer Hoppe’s observations were consistent with the original legitimate

purpose of the stop, the continuation of the stop to require appellant to submit to field

sobriety testing and a PBT was lawful.

III. Lawfulness of the arrest for DWI

Appellant also argues that Officer Hoppe lacked probable cause to arrest appellant

for DWI because (1) evidence obtained as a result of the traffic stop cannot be considered

because the officer lacked reasonable suspicion for the stop and (2) evidence obtained

from the field sobriety tests and the PBT cannot be considered because the officer lacked

reasonable suspicion to justify those tests. But as previously explained, Officer Hoppe’s

reasonable suspicion was justified by the informant’s tip and by his observations of

appellant, namely the odor of alcohol, the appearance of appellant’s eyes, and the “mini”

HGN test; therefore, evidence obtained from the field sobriety tests and the PBT may be

considered.

7 A police officer may arrest a person for DWI without a warrant upon probable

cause. Minn. Stat. § 169A.40, subd. 1 (2010). “Probable cause exists when all the facts

and circumstances would warrant a cautious person to believe the suspect was driving or

operating a vehicle while under the influence.” Andersen v. Comm’r of Pub. Safety, 410

N.W.2d 17, 19 (Minn. App. 1987) (quotation omitted). Results of a PBT may be used to

“assist . . . officers in making a probable cause determination.” Steele v. Comm’r of Pub.

Safety, 439 N.W.2d 427, 430 (Minn. App. 1989). Here, appellant’s PBT result showed

an alcohol concentration well over the legal limit. In addition, Officer Hoppe observed

that appellant’s eyes were watery and glassy, he exhibited signs of intoxication during the

HGN tests, and an odor of alcohol emanated from his person. Taken together, these facts

support a finding of probable cause to arrest for DWI. See Mell v. Comm’r of Pub.

Safety, 757 N.W.2d 702, 712 (Minn. App. 2008) (odor of alcohol combined with PBT

test results formed sufficient probable cause for DWI arrest); Hager v. Comm’r of Pub.

Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (officer’s observation that defendant had

bloodshot and watery eyes, smelled of alcohol, and failed a preliminary breath test

supported probable cause to arrest for DWI).

IV. Admissibility of the breath test

Appellant also argues that breath-test evidence obtained after he was read the

implied-consent advisory was not admissible because it was the product of unlawful

coercion and because the police lacked a warrant for the search. Searches conducted

without a warrant are presumed unreasonable, subject to only a few well-delineated and

established exceptions. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). But

8 consent, where freely and voluntarily given, is a recognized exception to the warrant

requirement. Diede, 795 N.W.2d at 846. “Whether consent was voluntary is determined

by examining the totality of the circumstances, including the nature of the encounter, the

kind of person the defendant is, and what was said and how it was said.” Id. (quotation

omitted). “Consent is not involuntary merely because the circumstances of the encounter

are uncomfortable for the person being questioned.” Id. (quotation omitted). The

voluntariness of consent to a search is a question of fact, which this court reviews for

clear error. Id. The state bears the burden of showing that appellant’s consent to the

breath test for alcohol content was voluntary. See State v. Dezso, 512 N.W.2d 877, 880

(Minn. 1994) (stating that “the burden of proof is on the prosecutor to show that the

search and seizure was within the individual’s voluntary consent”).

Appellant argues that the state failed to present sufficient evidence to show that

appellant voluntarily consented to the breath test, and that the evidence shows that

appellant did not consent but rather submitted to the officer’s claim of lawful authority.

See State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (“Mere acquiescence on a claim

of police authority or submission in the face of a show of force is, of course, not

enough.”). Appellant testified that, had he not been advised that refusing to submit to a

test was a crime, he would not have consented to take a test. But the implied-consent

advisory, without more, does not amount to coercion so as to render a suspect’s consent

invalid. State v. Brooks, 838 N.W.2d 563, 570 (Minn. 2013). That is because the law

gives individuals the choice to refuse to take an alcohol-concentration test, even though

test refusal comes with penalties. Id. at 571. Being asked to take an alcohol-

9 concentration test after being arrested and told that test refusal is a crime does not mean

that a suspect is “coerced in the sense that his will had been overborne and his capacity

for self-determination critically impaired.” Id. (quotation omitted).

In this case, the record shows that appellant was read the implied-consent advisory

and stated that he understood its meaning. Appellant was asked whether he wanted to

consult an attorney before making a decision, and appellant declined. Appellant then

consented to a breath test. Appellant was stopped around 11:30pm and the breath test

occurred at the police station shortly after midnight. On these facts, we conclude that

appellant’s consent was voluntary. See Brooks, 838 N.W.2d at 571-72 (suspect who was

read the implied consent advisory and was not detained for a long period of time

voluntarily consented to alcohol-concentration testing). Accordingly, we do not consider

the state’s alternative argument that appellant’s consent was implied by law.

V. Constitutionality of the implied-consent law

Appellant argues that the implied-consent statute is unconstitutional because it

“impl[ies] consent where none is actually given” and because it “criminaliz[es] a

motorist’s refusal to consent to a test that . . . requires a search warrant.” But in this case

appellant’s consent was not implied, nor was he convicted of test refusal. We have

concluded, based upon the totality of the circumstances, that appellant voluntarily

consented to an alcohol-concentration test, and that his consent was not coerced even

though refusal to comply with testing may be penalized. Therefore, we do not conclude

that appellant’s consent is derived solely by law. Because appellant is required to

demonstrate a direct injury when challenging the constitutionality of a statute, and

10 because we do not adjudicate “abstract questions” or “generalized grievances,” we

decline to consider appellant’s constitutional arguments. See Hanson v. Woolston, 701

N.W.2d 257, 262 (Minn. App. 2005), review denied (Minn. Oct. 18, 2005); see also

League of Women Voters Minn. v. Ritchie, 819 N.W.2d 636, 645 n.7 (Minn. 2012)

(stating that appellate courts may raise standing sua sponte because it is a jurisdictional

question).

Affirmed.