State of Minnesota v. Christopher Gary Zurek

• Court: Court of Appeals of Minnesota
• Decided: February 1, 2016
• Docket: A15-816
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0816

State of Minnesota, Respondent,

vs.

Christopher Gary Zurek, Appellant.

Filed February 1, 2016 Affirmed Peterson, Judge

Sherburne County District Court File No. 71-CR-14-461

Lori Swanson, Attorney General, General, St. Paul, Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, David T. Anderson, Assistant County Attorney, Elk River, Minnesota (for respondent)

Paul P. Sarratori, Mesenbourg & Sarratori Law Offices, P.A., Coon Rapids, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Chutich,

Judge.

UNPUBLISHED OPINION

PETERSON, Judge

In this appeal from a conviction of refusal to submit to a chemical test, appellant

argues that (1) the stop of his vehicle was not supported by a reasonable suspicion of criminal activity; and (2) there was not a reasonable suspicion that appellant was operating

a motor vehicle in violation of the driving-while-impaired statute to justify requiring him

to submit to a preliminary breath test. We affirm.

FACTS

During the evening on April 3, 2014, Sherburne County Dispatch received a call

from an identified tow-truck driver who worked for Collins Brothers. The tow-truck driver

said that he was assisting the driver of a silver pickup truck that had gone into the ditch on

Highway 169 near 283rd Street during a snowstorm, and he believed that the driver of the

pickup truck was intoxicated.

Sherburne County Dispatch relayed the tow-truck driver’s statements to law

enforcement. Soon after, a sheriff’s deputy arrived at the scene and saw a silver pickup

truck parked on the shoulder of the road and a tow truck parked directly in front of the

pickup. The deputy parked his squad car approximately 20 feet behind the pickup and

turned on his overhead lights. When the deputy got out of his squad car and approached

the pickup truck, the driver began driving the truck away from the left shoulder of the road.

In response, the deputy “banged” on the side of the pickup to make the driver stop.

After the driver stopped the pickup, the deputy approached the driver’s side window

and identified the driver as appellant Christopher Zurek. As he spoke with appellant, the

deputy observed that appellant “exhibited slowed reactions, smelled of alcohol, avoided

eye contact, and had bloodshot, watery eyes.”

A state trooper arrived on the scene about two or three minutes after the deputy.

The trooper independently observed that appellant smelled of alcohol, talked softly and

2 slowly, avoided eye contact, and had bloodshot, watery eyes. The trooper administered the

Horizontal Gaze Nystagmus (HGN) test while appellant was seated in the pickup, and

appellant exhibited six possible signs of impairment. The weather prevented the trooper

from administering additional field sobriety tests, but appellant submitted to a preliminary

breath test (PBT) that showed an alcohol concentration of .341. Appellant was arrested

and transported to the police station where he refused to submit to a chemical test.

Appellant was charged with refusal to submit to a chemical test in violation of Minn.

Stat. § 169A.20, subd. 2 (2012). Appellant filed a motion to suppress all evidence on the

basis that (a) there was not a reasonable suspicion of criminal activity to support the stop

of his vehicle; and (b) there was not a reasonable suspicion that he was operating a motor

vehicle in violation of the driving-while-impaired statute to support a request that he submit

to a preliminary breath test. The district court denied appellant’s motion. The parties

stipulated to the prosecution’s evidence in a trial to the court under Minn. R. Crim. P. 26.01,

subd. 4, and the district court found appellant guilty of the charged offense. This appeal

followed.

DECISION

“When reviewing pretrial orders on motions to suppress evidence, we may

independently review the facts and determine, as a matter of law, whether the district court

erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90,

98 (Minn. 1999) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992)). We review

the district court’s findings of fact for clear error and determine de novo whether a search

3 or seizure was justified by reasonable suspicion or probable cause. State v. Burbach, 706

N.W.2d 484, 487 (Minn. 2005).

I.

Appellant challenges the district court’s conclusion that the stop of his vehicle was

supported by a reasonable suspicion of criminal activity. “The factual basis required to

support a stop is minimal.” State v. Haataja, 611 N.W.2d 353, 354 (Minn. App.

2000) (quotation omitted), review denied (Minn. July 25, 2000). “In general, the state

and federal constitutions allow an officer to conduct a limited investigatory stop of a

motorist if the state can show that the officer had a particularized and objective basis for

suspecting the particular person stopped of criminal activity.” State v. Anderson, 683

N.W.2d 818, 822-23 (Minn. 2004) (quotation omitted). This court considers the totality of

the circumstances to determine if reasonable suspicion exists. State v. Davis, 732 N.W.2d

173, 182 (Minn. 2007).

“The information necessary to support an investigative stop need not be based on

the officer’s personal observations, rather, the police can base an investigative stop on an

informant’s tip if it has sufficient indicia of reliability.” In re Welfare of G.M., 560 N.W.2d

687, 691 (Minn. 1997). “The Minnesota cases dealing with traffic stops based on informant

tips have focused mainly on two factors: (1) identifying information given by the

informant, and (2) the facts that support the informant’s assertion that a driver is under the

influence.” Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000).

Neither factor is determinative, and the overall determination of reasonable suspicion is

based on the totality of the circumstances. Id.

4 Appellant argues that for a stop based solely on an informant’s tip to be valid, the

informant must provide specific information as to why the informant believed that the

driver was intoxicated. Minnesota caselaw, however, does not require that an identified

informant state why the informant believes that a driver is intoxicated. The supreme court

has held that when a stop is based on a tip alone, an “anonymous caller must provide at

least some specific and articulable facts to support the bare allegation of criminal activity.”

Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985) (emphasis added).

As long as the informant can be identified, and the record supports an inference that

the informant’s tip was based on personal observation, courts have upheld investigatory

stops based on general tips of drunk driving. See, e.g., City of Minnetonka v. Shepherd,

420 N.W.2d 887, 891 (Minn. 1988) (stating that a gas station attendant’s tip that a driver

was intoxicated was sufficient to justify investigatory stop); Magnuson v. Comm’r of Pub.

Safety, 703 N.W.2d 557, 560-61 (Minn. App. 2005) (stating that identified citizen’s tip that

a driver was drunk was sufficient to establish reasonable suspicion because it was based on

the informant’s personal observation); State v. Pealer, 488 N.W.2d 3, 5 (Minn. App.

1992) (concluding that police had reasonable suspicion for investigatory stop based on

known, confidential informant’s tip that a driver was intoxicated).

What has been required to find that a stop based upon an identified informant’s tip

was valid is “a showing that there was a basis for the informant’s knowledge.” Playle v.

Comm’r of Pub. Safety, 439 N.W.2d 747, 748-49 (Minn. App. 1989). The informant in

Playle did not state why he believed that the driver was drunk, but this court upheld the

stop because the informant provided sufficient information so that he could be located and

5 held accountable for providing false information and the police had “reason to believe the

informant based his conclusion on personal observations.” Id. at 748-49.

In this case, the informant called dispatch, identified himself, and provided his

location. The informant also told dispatch that he was assisting a driver who had driven

into a ditch and he believed that the driver was intoxicated. Although the informant did

not specifically state why he believed that the driver was intoxicated, the informant’s

statements demonstrated that he was in direct contact with the driver and that his statements

were based on his personal observations of appellant. See id. at 749 (stating that police

had reason to believe the informant based on his personal observations). Furthermore,

when the deputy arrived at the reported location, he saw a silver pickup truck and a tow

truck, which corroborated much of the information that the informant gave to the

dispatcher.1 The stop of appellant’s vehicle was justified by a reasonable suspicion of

impaired driving.

II.

When a peace officer has reason to believe from the manner in which a person is driving, operating, controlling, or acting upon departure from a motor vehicle, or has driven, operated, or controlled a motor vehicle, that the driver may be violating or has violated section 169A.20 (driving while impaired), . . . the officer may require the driver to provide a sample of the driver’s breath for a preliminary screening test

1 The fact that the informant stated that he “believed” that appellant was drunk, rather than stating that he was “definitely drunk” is inconsequential. See State v. Hjelmstad, 535 N.W.2d 663, 666 (Minn. App. 1995) (concluding that the difference between the informant’s equivocal statement that the driver was “possibly drunk” versus a more definite statement of “drunk” was a distinction of “little significance”).

6 using a device approved by the commissioner [of public safety] for this purpose.

Minn. Stat. § 169A.41 (2012).

To require the test, an officer must have a specific and articulable suspicion of a

violation of section 169A.20. Knapp v. Comm’r of Pub. Safety, 594 N.W.2d 239, 241.

(Minn. App. 1999), rev’d on other grounds, 610 N.W.2d 625 (Minn. 2000). “Articulable

suspicion includes evidence of sufficient indicia of intoxication.” Id. Articulable suspicion

is an objective standard and is determined from the totality of the circumstances. Paulson

v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986).

Appellant argues that there was no reasonable suspicion that he was operating a

motor vehicle while impaired that would permit an officer to require that he submit to a

PBT. Appellant contends that because the deputy’s statements and his testimony were

inconsistent, the deputy’s testimony that he “immediately smelled alcohol” was not

credible and anything else that he testified to has to be questioned. “The credibility of

witnesses is for the trial court in a court trial.” Reis v. Comm’r of Pub. Safety, 358 N.W.2d

740, 741 (Minn. App. 1984). We defer to the district court’s credibility determinations.

This court has held that the odor of alcohol, when combined with bloodshot and

watery eyes, established a reasonable articulable suspicion to administer a preliminary

screening test. Hagar v. Comm’r of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986);

see also LaBeau v. Comm’r of Pub. Safety, 412 N.W.2d 777, 779-80 (Minn. App.

1987) (holding that a driver’s red and bloodshot eyes, odor of alcohol, and slurred speech

provided police with reasonable, articulable suspicion to ask the driver to take a breath

7 test). And this court has held that a traffic violation or a serious accident coupled with an

objective indication of impairment established a reasonable, articulable suspicion

justifying a PBT. See State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review

denied (Minn. May 16, 1986); see also Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361,

363 (Minn. App. 1995) (concluding that smell of alcohol on breath and involvement in

serious accident established reasonable suspicion that driver was under influence).

The record indicates that the odor of alcohol emanating from appellant was faint at

best. But both officers testified that they observed other indicia of intoxication. The deputy

testified that appellant exhibited slowed reactions, avoided eye contact, and had bloodshot

and watery eyes. The trooper testified that appellant talked softly and slowly, avoided eye

contact, and had bloodshot, watery eyes. Also, both officers were aware of the informant’s

belief that appellant was intoxicated. Finally, although the record indicates that the road

conditions were poor due to the snow, appellant drove his truck into the ditch, which

provided law enforcement with a further reasonable basis to conduct a PBT. See Heuton,

541 N.W.2d at 363. Accordingly, based on the totality of the circumstances, the officer

had a reasonable, articulable suspicion that appellant was driving while impaired that

permitted him to require appellant to submit to a PBT.

Appellant also argues that the trooper did not conduct any valid field sobriety tests.

Appellant contends that the HGN test, which was the only test conducted, was not

conducted in accordance with the National Highway Traffic Safety Administration

protocol; the standard method is to conduct the test while a person is standing, and appellant

was sitting in his truck when he took the test. Because we have concluded that evidence

8 other than the results of the HGN test established that the trooper had a reasonable,

articulable suspicion that appellant was driving while impaired, we need not determine

whether the HGN test also indicated that appellant was driving while impaired.

Affirmed.