This opinion will be unpublished and may not be cited except as provided by Minn.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 A13-0286
Jon Earl Miller, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent.
Filed August 4, 2014 Affirmed Peterson, Judge
Otter Tail County District Court File No. 56-CV-12-2262
Robert M. Christensen, Steven J. Wright, Robert M. Christensen, P.L.C., Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, James E. Haase, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Peterson, Judge; and
Connolly, Judge.
UNPUBLISHED OPINION
PETERSON, Judge
Appellant challenges the district court’s order sustaining his license revocation
under the implied-consent law, arguing that the vehicle stop was unlawful and that breath-test results should have been suppressed because he did not voluntarily consent to
the test. We affirm.
FACTS
Otter Tail County sheriff’s deputy Zachary Eifert saw a red pickup truck on
County Highway 41 in Otter Tail County that he believed was traveling in excess of the
speed limit. As he followed the truck at a distance of approximately 200 to 250 yards, he
saw the truck cross over the fog line five times and over the center line twice. After
stopping the truck and identifying the driver as appellant Jon Earl Miller, Eifert arrested
him for driving while impaired (DWI) and transported him to the Otter Tail County
Detention Center.
At the detention center, Eifert read Miller the standard implied-consent advisory
form, which stated that Minnesota law required him to take a test to determine whether he
was under the influence of alcohol; test refusal is a crime; he had the right to consult an
attorney; and any unreasonable delay would be considered a refusal. Miller said that he
understood, declined to contact an attorney, and agreed to take a breath test, which
showed an alcohol concentration of 0.14. Eifert testified that Miller was cooperative
throughout the stop and the testing procedure. The operator who administered the breath
test, A. Mueller, also noted that Miller was “very cooperative.”
Miller contested the license revocation, asserting that Eifert did not have a
reasonable articulable suspicion of criminal behavior to support the stop and that Miller
did not voluntarily consent to the breath test because the implied-consent advisory was
coercive. The district court sustained the license revocation.
2 Miller filed a notice of appeal on February 4, 2013. On April 17, 2013, the United
States Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013), was
issued. Miller’s appeal was stayed pending the Minnesota Supreme Court’s decision in
State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).
After the Brooks decision was released on October 23, 2013, this court lifted the stay in
Miller’s appeal.
DECISION
I.
Miller argues that the stop of his truck was “constitutionally unlawful,” because
Eifert did not have a reasonable articulable suspicion that Miller was engaged in criminal
activity to support an investigative stop. The United States and Minnesota Constitutions
prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. But a peace officer may make an investigative stop if “the stop was justified at its
inception by reasonable articulable suspicion, and . . . the actions of the police during the
stop were reasonably related to and justified by the circumstances that gave rise to the
stop in the first place.” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quotations
omitted). “Reasonable suspicion must be based on specific, articulable facts that allow
the officer to . . . articulate . . . that he or she had a particularized and objective basis for
suspecting the seized person of criminal activity.” Id. at 842-43 (quotation omitted).
Reasonable suspicion requires more than a hunch or a whim, but it is a lesser standard
than probable cause. Id. at 843. Reasonable suspicion may be based on the officer’s
3 observation of even an insignificant traffic violation. State v. Doebel, 790 N.W.2d 707,
709 (Minn. App. 2010), review denied (Minn. Jan. 26, 2011).
We review the district court’s factual findings regarding an investigative stop for
clear error and its legal conclusions de novo. Sarber v. Comm’r of Pub. Safety, 819
N.W.2d 465, 468 (Minn. App. 2012). This court defers to the district court’s assessment
of witness credibility. Wilkes v. Comm’r of Pub. Safety, 777 N.W.2d 239, 245 (Minn.
App. 2010).
Eifert testified that he saw Miller’s truck cross the fog line five times and the
center line twice. Eifert noted that he saw the truck at 2:30 a.m., a time when it was
common to observe impaired driving because of bar closing time. The district court
concluded that this was sufficient to provide Eifert with a reasonable articulable suspicion
of impaired driving. Miller argues that Eifert was “foggy” in his testimony and that a
squad video showed Miller driving in a “smooth and unexceptional” manner. But the
district court found Eifert credible and accepted his testimony. The district court also
noted that the squad video was initiated after Miller’s erratic driving conduct and rejected
Miller’s contention that the video undermined Eifert’s testimony.
Based on the totality of the circumstances, Eifert had a reasonable articulable
suspicion that Miller was driving while impaired that supported his decision to make an
investigatory stop. See id. at 244-45.
4 II.
In the district court, Miller argued that evidence of the breath-test results should be
suppressed because Eifert forced him to submit to a warrantless search that was not
subject to a warrant exception. The district court rejected this argument, stating that
it is clear from the record that when requested by Deputy Eifert to submit to a breath test, [Miller] consented. The breath sample was taken upon [Miller’s] clear consent. Therefore, there is no reasonable basis to believe that [McNeely] will render [Miller’s] consent involuntary or the seizure of his breath sample unlawful.
Miller now argues that the state has failed to show that, under the totality of the
circumstances, he was not coerced into giving his consent to the breath test. Miller
distinguishes Brooks because (1) Brooks had a lengthy history of DWI arrests, whereas
Miller had no prior arrests and would feel the normal stress of an individual placed under
arrest for the first time in his life; (2) Brooks consulted with an attorney, while Miller did
not; (3) Eifert advised Miller of the consequences of refusing, but he did not advise
Miller that he had a right to refuse the test; and (4) Brooks’s obstreperous behavior
indicated that he was not intimidated, while Miller’s compliance suggests that he felt he
could not refuse the test.
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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 A13-0286
Jon Earl Miller, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent.
Filed August 4, 2014 Affirmed Peterson, Judge
Otter Tail County District Court File No. 56-CV-12-2262
Robert M. Christensen, Steven J. Wright, Robert M. Christensen, P.L.C., Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, James E. Haase, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Peterson, Judge; and
Connolly, Judge.
UNPUBLISHED OPINION
PETERSON, Judge
Appellant challenges the district court’s order sustaining his license revocation
under the implied-consent law, arguing that the vehicle stop was unlawful and that breath-test results should have been suppressed because he did not voluntarily consent to
the test. We affirm.
FACTS
Otter Tail County sheriff’s deputy Zachary Eifert saw a red pickup truck on
County Highway 41 in Otter Tail County that he believed was traveling in excess of the
speed limit. As he followed the truck at a distance of approximately 200 to 250 yards, he
saw the truck cross over the fog line five times and over the center line twice. After
stopping the truck and identifying the driver as appellant Jon Earl Miller, Eifert arrested
him for driving while impaired (DWI) and transported him to the Otter Tail County
Detention Center.
At the detention center, Eifert read Miller the standard implied-consent advisory
form, which stated that Minnesota law required him to take a test to determine whether he
was under the influence of alcohol; test refusal is a crime; he had the right to consult an
attorney; and any unreasonable delay would be considered a refusal. Miller said that he
understood, declined to contact an attorney, and agreed to take a breath test, which
showed an alcohol concentration of 0.14. Eifert testified that Miller was cooperative
throughout the stop and the testing procedure. The operator who administered the breath
test, A. Mueller, also noted that Miller was “very cooperative.”
Miller contested the license revocation, asserting that Eifert did not have a
reasonable articulable suspicion of criminal behavior to support the stop and that Miller
did not voluntarily consent to the breath test because the implied-consent advisory was
coercive. The district court sustained the license revocation.
2 Miller filed a notice of appeal on February 4, 2013. On April 17, 2013, the United
States Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013), was
issued. Miller’s appeal was stayed pending the Minnesota Supreme Court’s decision in
State v. Brooks, 838 N.W.2d 563, 567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).
After the Brooks decision was released on October 23, 2013, this court lifted the stay in
Miller’s appeal.
DECISION
I.
Miller argues that the stop of his truck was “constitutionally unlawful,” because
Eifert did not have a reasonable articulable suspicion that Miller was engaged in criminal
activity to support an investigative stop. The United States and Minnesota Constitutions
prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. But a peace officer may make an investigative stop if “the stop was justified at its
inception by reasonable articulable suspicion, and . . . the actions of the police during the
stop were reasonably related to and justified by the circumstances that gave rise to the
stop in the first place.” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quotations
omitted). “Reasonable suspicion must be based on specific, articulable facts that allow
the officer to . . . articulate . . . that he or she had a particularized and objective basis for
suspecting the seized person of criminal activity.” Id. at 842-43 (quotation omitted).
Reasonable suspicion requires more than a hunch or a whim, but it is a lesser standard
than probable cause. Id. at 843. Reasonable suspicion may be based on the officer’s
3 observation of even an insignificant traffic violation. State v. Doebel, 790 N.W.2d 707,
709 (Minn. App. 2010), review denied (Minn. Jan. 26, 2011).
We review the district court’s factual findings regarding an investigative stop for
clear error and its legal conclusions de novo. Sarber v. Comm’r of Pub. Safety, 819
N.W.2d 465, 468 (Minn. App. 2012). This court defers to the district court’s assessment
of witness credibility. Wilkes v. Comm’r of Pub. Safety, 777 N.W.2d 239, 245 (Minn.
App. 2010).
Eifert testified that he saw Miller’s truck cross the fog line five times and the
center line twice. Eifert noted that he saw the truck at 2:30 a.m., a time when it was
common to observe impaired driving because of bar closing time. The district court
concluded that this was sufficient to provide Eifert with a reasonable articulable suspicion
of impaired driving. Miller argues that Eifert was “foggy” in his testimony and that a
squad video showed Miller driving in a “smooth and unexceptional” manner. But the
district court found Eifert credible and accepted his testimony. The district court also
noted that the squad video was initiated after Miller’s erratic driving conduct and rejected
Miller’s contention that the video undermined Eifert’s testimony.
Based on the totality of the circumstances, Eifert had a reasonable articulable
suspicion that Miller was driving while impaired that supported his decision to make an
investigatory stop. See id. at 244-45.
4 II.
In the district court, Miller argued that evidence of the breath-test results should be
suppressed because Eifert forced him to submit to a warrantless search that was not
subject to a warrant exception. The district court rejected this argument, stating that
it is clear from the record that when requested by Deputy Eifert to submit to a breath test, [Miller] consented. The breath sample was taken upon [Miller’s] clear consent. Therefore, there is no reasonable basis to believe that [McNeely] will render [Miller’s] consent involuntary or the seizure of his breath sample unlawful.
Miller now argues that the state has failed to show that, under the totality of the
circumstances, he was not coerced into giving his consent to the breath test. Miller
distinguishes Brooks because (1) Brooks had a lengthy history of DWI arrests, whereas
Miller had no prior arrests and would feel the normal stress of an individual placed under
arrest for the first time in his life; (2) Brooks consulted with an attorney, while Miller did
not; (3) Eifert advised Miller of the consequences of refusing, but he did not advise
Miller that he had a right to refuse the test; and (4) Brooks’s obstreperous behavior
indicated that he was not intimidated, while Miller’s compliance suggests that he felt he
could not refuse the test.
In Brooks, the supreme court acknowledged that chemical testing under the DWI
and implied-consent laws is a search subject to Fourth Amendment protections; as such, a
warrant is required unless the search falls under an exception to the warrant requirement.
838 N.W.2d at 568. No warrant is necessary if the subject of the search consents to the
warrantless search. Id. Whether a person freely and voluntarily consented is determined
5 by examining the totality of the circumstances. Id. “Consent to search may be implied
by action, rather than words. And consent can be voluntary even if the circumstances of
the encounter are uncomfortable for the person being questioned. An individual does not
consent, however, simply by acquiescing to a claim of lawful authority.” Id. at 568-69.
“‘Voluntariness’ is a question of fact and it varies with the facts of each case.” State v.
Dezso, 512 N.W.2d 877, 880 (Minn. 1994).
The supreme court stated that an analysis of the totality of the circumstances
begins with the statutory requirements of the implied-consent law: (1) anyone who drives
a motor vehicle in Minnesota consents to chemical testing to determine the presence of
alcohol; (2) before requiring testing, a peace officer must have probable cause to believe
a person has been driving while impaired by alcohol; and (3) an advisory must be given
explaining that the law requires that a driver suspected of driving while impaired must
take a test, the person may consult with an attorney, and that there are consequences for
refusing. Id. at 569. If these statutory requirements are met, the court will consider other
relevant circumstances to determine whether a person consented to testing. Id. Among
these are “‘the nature of the encounter, the kind of person the defendant is, and what was
said and how it was said.’” Id. (quoting Dezso, 512 N.W.2d at 880).
Next, the supreme court stated that the sole fact that there is a penalty for refusal
does not coerce a driver to take a test. Id. at 570. Under Minnesota law, a driver may
refuse the test and may not be forced to submit to testing, although he may suffer a
penalty for making that choice. Id. The supreme court recognized that someone in
custody may be more susceptible to coercion, but the fact of arrest alone is not sufficient
6 to negate consent, particularly if the person is not confronted by repeated questioning or a
long period in custody. Id. at 571. The right to consult with counsel mitigates coercion.
Id. at 571-72. Finally, the supreme court concluded that the implied-consent advisory
makes clear to an individual “that he had a choice of whether to submit to testing.” Id. at
572.
Here, all of the statutory requirements were met; the stop and arrest were routine;
nothing in the record indicates that Eifert or anyone else intimidated or sought to
intimidate Miller; and Miller was advised of his right to counsel but declined the
opportunity to consult with counsel. Miller’s testimony at the implied-consent hearing
was limited to the circumstances of the stop, and he did not indicate in any way that he
did not consent to the breath test. After listening to the testimony, the district court found
that Miller consented to the breath test and Miller gave a “clear consent.”
We agree that the state met its burden to show that, under the totality of the
circumstances, Miller voluntarily consented to the breath test and, therefore, no search
warrant was necessary.
Affirmed.