State of Minnesota v. Christopher Gary Zurek ( 2016 )

This opinion will be unpublished and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UNPUBLISHED OPINION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
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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
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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
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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”).
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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
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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
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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.
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