This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1694
State of Minnesota, Respondent,
vs.
Steven Duane Smith, Appellant.
Filed October 24, 2016 Affirmed Rodenberg, Judge
Ramsey County District Court File No. 62-CR-14-6224
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and Liz Kramer, Brittany S. Mitchell, Special Assistant Public Defenders, Stinson Leonard Street LLP, Minneapolis, Minnesota (for appellant)
Considered and decided by Smith, Tracy M., Presiding Judge; Ross, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Steven Smith appeals from his convictions of driving while intoxicated
and refusing to submit to a chemical test, arguing that the arresting officer’s visual estimation of his speed was insufficient to support a reasonable articulable suspicion
justifying a traffic stop, that there was insufficient evidence to support his conviction, and
that the test-refusal statute is unconstitutional. We affirm.
FACTS
On August 17, 2014, St. Paul Police Sergeant Robert Weier was on traffic patrol.
He had just completed an unrelated traffic stop when he observed appellant’s car. Sergeant
Weier visually estimated that appellant’s car was travelling at 45 miles per hour in a 30-
miles-per-hour zone. Sergeant Weier turned his squad car around to follow appellant, and
observed that, when his squad car reached a speed of 40 miles per hour, it was not gaining
on appellant’s car. Sergeant Weier then initiated a traffic stop. When speaking to
appellant, Sergeant Weier observed appellant’s slurred speech and red eyes. He smelled a
faint odor of alcohol on appellant, but appellant denied that he had been drinking. Sergeant
Weier then went through some field sobriety tests with appellant, none of which appellant
performed successfully. Appellant refused to take a preliminary breath test at the scene.
Sergeant Weier then transported appellant to the Ramsey County Law Enforcement
Center and read appellant the standard implied-consent advisory. Appellant stated several
times that he would not take a test, and when asked to explain his refusal of chemical
testing, appellant stated that the police had no right to pull him over.
The state charged appellant with first-degree driving while intoxicated and first-
degree test refusal. Appellant moved to suppress and dismiss the charges, arguing that
Sergeant Weier did not have reasonable suspicion sufficient to make the initial stop or to
expand the stop, and there was no probable cause to arrest him. At the suppression hearing,
2 Sergeant Weier testified that he had been trained in visual estimation of vehicle speeds and
could visually estimate speed to within five miles per hour. Appellant testified that he had
been driving under the speed limit and argued that the squad video, coupled with
mathematical computations concerning time and distance, proves that he was not speeding
before the stop. The district court denied appellant’s motion to suppress, relying on
Sergeant Weier’s testimony to conclude that the stop was supported by reasonable and
articulable suspicion.
Appellant stipulated to the state’s case pursuant to Minn. R. Crim. P. 26.01, subd.
4, to obtain appellate review of the denial of his suppression motion. As a part of this
agreement, appellant acknowledged that appellate review would be limited to those issues
raised at the contested suppression hearing. The district court found appellant guilty of
both counts. This appeal followed.
DECISION
Appellant appeals on three bases. He argues that Sergeant Weier’s visual estimation
of appellant’s speed did not adequately support the traffic stop, that there was insufficient
evidence of intoxication to find appellant guilty of driving while intoxicated, and that the
test-refusal statute is unconstitutional.
Appellant’s decision to stipulate to the state’s case under Minn. R. Crim. P. 26.01,
subd. 4, limits the scope of our review. When using this procedure, both the state and the
defendant agree that “appellate review will be of the pretrial issue, but not of the
defendant’s guilt, or of other issues that could arise at a contested trial.” Minn. R. Crim.
P. 26.01, subd. 4(f). Accordingly, when an appellant has stipulated to the state’s case, our
3 review is limited to the specified pretrial order. State v. Ortega, 770 N.W.2d 145, 149
(Minn. 2009). An appellant who utilizes Minn. R. Crim. P. 26.01, subd. 4, to obtain
appellate review of a pretrial decision is “precluded from raising a sufficiency of the
evidence argument on appeal,” because he has waived his opportunity to argue the
sufficiency of the evidence at trial. State v. Riley, 667 N.W.2d 153, 158 (Minn. App. 2003),
review denied (Minn. Oct. 21, 2003); accord State v. Busse, 644 N.W.2d 79, 88 (Minn.
2002). Challenges based on sufficiency of the evidence or any other argument not raised
at the pretrial hearing are therefore waived.
As a part of his stipulation under rule 26.01, subdivision 4, appellant acknowledged
that he would be able to seek appellate review of only the issues raised during the
suppression hearing concerning his traffic stop and subsequent arrest. Appellant’s
sufficiency-of-the-evidence challenge and his constitutional argument are waived. Minn.
R. Crim. P. 26.01, subd. 4(f) (limiting the scope of appellate review to the pretrial issue).
We therefore consider only appellant’s reasonable-suspicion argument.
Appellant argues that the district court erred in determining that Sergeant Weier had
reasonable articulable suspicion to stop appellant’s car. Presented with conflicting
testimony on whether or not appellant was speeding just prior to the stop, the district court
credited Sergeant Weier’s testimony and found that he was reasonably suspicious when he
stopped appellant, and articulated the basis of his suspicion by estimating that appellant
was driving too fast.
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
‘we review the district court’s factual findings under a clearly erroneous standard and the
4 district court’s legal determinations de novo.’” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quoting State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)). We review
determinations of reasonable suspicion de novo. State v. Britton, 604 N.W.2d 84, 87
(Minn. 2000); In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997). We consider
the totality of the circumstances to determine whether a reasonable basis justified a stop.
Britton, 604 N.W.2d at 87.
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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 A15-1694
State of Minnesota, Respondent,
vs.
Steven Duane Smith, Appellant.
Filed October 24, 2016 Affirmed Rodenberg, Judge
Ramsey County District Court File No. 62-CR-14-6224
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and Liz Kramer, Brittany S. Mitchell, Special Assistant Public Defenders, Stinson Leonard Street LLP, Minneapolis, Minnesota (for appellant)
Considered and decided by Smith, Tracy M., Presiding Judge; Ross, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Steven Smith appeals from his convictions of driving while intoxicated
and refusing to submit to a chemical test, arguing that the arresting officer’s visual estimation of his speed was insufficient to support a reasonable articulable suspicion
justifying a traffic stop, that there was insufficient evidence to support his conviction, and
that the test-refusal statute is unconstitutional. We affirm.
FACTS
On August 17, 2014, St. Paul Police Sergeant Robert Weier was on traffic patrol.
He had just completed an unrelated traffic stop when he observed appellant’s car. Sergeant
Weier visually estimated that appellant’s car was travelling at 45 miles per hour in a 30-
miles-per-hour zone. Sergeant Weier turned his squad car around to follow appellant, and
observed that, when his squad car reached a speed of 40 miles per hour, it was not gaining
on appellant’s car. Sergeant Weier then initiated a traffic stop. When speaking to
appellant, Sergeant Weier observed appellant’s slurred speech and red eyes. He smelled a
faint odor of alcohol on appellant, but appellant denied that he had been drinking. Sergeant
Weier then went through some field sobriety tests with appellant, none of which appellant
performed successfully. Appellant refused to take a preliminary breath test at the scene.
Sergeant Weier then transported appellant to the Ramsey County Law Enforcement
Center and read appellant the standard implied-consent advisory. Appellant stated several
times that he would not take a test, and when asked to explain his refusal of chemical
testing, appellant stated that the police had no right to pull him over.
The state charged appellant with first-degree driving while intoxicated and first-
degree test refusal. Appellant moved to suppress and dismiss the charges, arguing that
Sergeant Weier did not have reasonable suspicion sufficient to make the initial stop or to
expand the stop, and there was no probable cause to arrest him. At the suppression hearing,
2 Sergeant Weier testified that he had been trained in visual estimation of vehicle speeds and
could visually estimate speed to within five miles per hour. Appellant testified that he had
been driving under the speed limit and argued that the squad video, coupled with
mathematical computations concerning time and distance, proves that he was not speeding
before the stop. The district court denied appellant’s motion to suppress, relying on
Sergeant Weier’s testimony to conclude that the stop was supported by reasonable and
articulable suspicion.
Appellant stipulated to the state’s case pursuant to Minn. R. Crim. P. 26.01, subd.
4, to obtain appellate review of the denial of his suppression motion. As a part of this
agreement, appellant acknowledged that appellate review would be limited to those issues
raised at the contested suppression hearing. The district court found appellant guilty of
both counts. This appeal followed.
DECISION
Appellant appeals on three bases. He argues that Sergeant Weier’s visual estimation
of appellant’s speed did not adequately support the traffic stop, that there was insufficient
evidence of intoxication to find appellant guilty of driving while intoxicated, and that the
test-refusal statute is unconstitutional.
Appellant’s decision to stipulate to the state’s case under Minn. R. Crim. P. 26.01,
subd. 4, limits the scope of our review. When using this procedure, both the state and the
defendant agree that “appellate review will be of the pretrial issue, but not of the
defendant’s guilt, or of other issues that could arise at a contested trial.” Minn. R. Crim.
P. 26.01, subd. 4(f). Accordingly, when an appellant has stipulated to the state’s case, our
3 review is limited to the specified pretrial order. State v. Ortega, 770 N.W.2d 145, 149
(Minn. 2009). An appellant who utilizes Minn. R. Crim. P. 26.01, subd. 4, to obtain
appellate review of a pretrial decision is “precluded from raising a sufficiency of the
evidence argument on appeal,” because he has waived his opportunity to argue the
sufficiency of the evidence at trial. State v. Riley, 667 N.W.2d 153, 158 (Minn. App. 2003),
review denied (Minn. Oct. 21, 2003); accord State v. Busse, 644 N.W.2d 79, 88 (Minn.
2002). Challenges based on sufficiency of the evidence or any other argument not raised
at the pretrial hearing are therefore waived.
As a part of his stipulation under rule 26.01, subdivision 4, appellant acknowledged
that he would be able to seek appellate review of only the issues raised during the
suppression hearing concerning his traffic stop and subsequent arrest. Appellant’s
sufficiency-of-the-evidence challenge and his constitutional argument are waived. Minn.
R. Crim. P. 26.01, subd. 4(f) (limiting the scope of appellate review to the pretrial issue).
We therefore consider only appellant’s reasonable-suspicion argument.
Appellant argues that the district court erred in determining that Sergeant Weier had
reasonable articulable suspicion to stop appellant’s car. Presented with conflicting
testimony on whether or not appellant was speeding just prior to the stop, the district court
credited Sergeant Weier’s testimony and found that he was reasonably suspicious when he
stopped appellant, and articulated the basis of his suspicion by estimating that appellant
was driving too fast.
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
‘we review the district court’s factual findings under a clearly erroneous standard and the
4 district court’s legal determinations de novo.’” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quoting State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)). We review
determinations of reasonable suspicion de novo. State v. Britton, 604 N.W.2d 84, 87
(Minn. 2000); In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997). We consider
the totality of the circumstances to determine whether a reasonable basis justified a stop.
Britton, 604 N.W.2d at 87.
The Fourth Amendment to the United States Constitution and Article I of the
Minnesota Constitution protect citizens from unreasonable searches and seizures. U.S.
Const. amend. IV; Minn. Const. art. I, § 10. However, a law enforcement officer may
temporarily detain a person that he suspects has engaged in criminal activity 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)
(quotation omitted). Traffic violations, “however insignificant,” provide a legal basis for
stopping a vehicle. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Where an officer
has reasonable suspicion that a driver has committed a traffic violation, he may initiate a
stop. Sazenski v. Comm’r of Pub. Safety, 368 N.W.2d 408, 409 (Minn. App. 1985).
An actual violation of the vehicle and traffic laws need not be detectable. The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quotation omitted).
5 At the suppression hearing, Sergeant Weier testified that he had two reasons to
suspect appellant was travelling faster than the 30-miles-per-hour speed limit. First,
Sergeant Weier, relying on his training and years of police experience, visually estimated
the speed of appellant’s car at 45 miles per hour. Second, while following appellant,
Sergeant Weier’s squad reached a speed of 40 miles per hour without gaining on
appellant’s car. The district court determined that Sergeant Weier reasonably believed
appellant was speeding.
Citing State v. George, appellant argues that he was not speeding, and that therefore
Sergeant Weier could not have had reasonable suspicion to stop his car. However, State v.
George addresses mistakes of law, not mistakes of fact. 557 N.W.2d at 579 (holding that
a stop of a motorcycle with three headlights, premised on the mistaken belief that the law
prohibited such a configuration, was unconstitutional because there was no objective basis
in the law for the officer to reasonably suspect a crime had occurred).1 Here, appellant
argues that Sergeant Weier mistakenly determined appellant to have been driving 45 miles
per hour: a mistake of fact. A mistake of fact does not invalidate a traffic stop so long as
that mistake is reasonable. See State v. Johnson, 392 N.W.2d 685, 687 (Minn. App. 1986)
(holding that mistaken identity did not render a stop invalid). An officer who visually
estimates the excessive speed of a car, and is able to corroborate his estimate by following
1 In Heien v. North Carolina, 135 S. Ct. 530 (2015), the United States Supreme Court held that, in some circumstances, a reasonable mistake of law may not invalidate a traffic stop. We have no occasion to consider whether George survives Heien by affording greater constitutional protection of personal liberty under Article I, § 10 of the Minnesota Constitution than is afforded under the Fourth Amendment of the United States Constitution. George is not relevant to this case.
6 that car, has a reasonable and articulable suspicion of a traffic violation. Even if appellant
can now demonstrate that he was not speeding (which we need not determine for
reasonable-suspicion purposes), Sergeant Weier’s suspicion that appellant was speeding
was reasonable and sufficient to support a stop.
Appellant also argues that an officer’s testimony concerning visual estimation
cannot, on its own, support a finding of reasonable suspicion. However, we have held that
a law enforcement officer’s visual estimation of a driver’s excessive speed is sufficient to
support a traffic stop. Sazenski, 368 N.W.2d at 409. A finding of reasonable suspicion on
the basis of excessive speed does not depend upon whether a defendant is charged with
speeding or whether the officer “clock[s] the vehicle’s exact speed.” Frank v. Comm’r of
Pub. Safety, 384 N.W.2d 574, 576 (Minn. App. 1986). Additionally, the district court
found as a fact that Sergeant Weier’s “visual estimates of speeds are accurate within five
miles per hour or less.” Appellant does not challenge this finding as clearly erroneous, and
the record supports it. The district court did not err in determining that an experienced
officer’s visual estimate and subsequent attempt at pacing were sufficient to support this
traffic stop.
Finally, appellant attacks the quality of Sergeant Weier’s visual estimate of
appellant’s speed, arguing that Sergeant Weier was distracted when he first spotted
appellant’s car. The record does not support this assertion. The district court found that
Sergeant Weier “had just cleared a traffic stop” and “was traveling north on Lexington”
when he noticed appellant’s vehicle. Appellant does not challenge this finding of fact as
clearly erroneous, but would have us infer distraction from the fact that Sergeant Weier
7 had just concluded a traffic stop. No such inference is warranted. The district court found
that the officer was able to see the car and estimate its speed. Whether it might have made
other findings or inferences is not a proper consideration on appeal. State v. Halverson,
373 N.W.2d 618, 621 (Minn. App. 1985) (“It is not the function of the reviewing court to
second guess and substitute its judgment for that of the trial court.”). We review the
findings and legal conclusions that the district court did make, and the record supports
them.
The district court did not err in finding Sergeant Weier had reasonable suspicion to
stop appellant’s vehicle. We therefore affirm its denial of appellant’s motion to suppress.
Affirmed.