Mitchell Frank Mack v. Commissioner of Public Safety

This opinion will be unpublished and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
A14-1595
Mitchell Frank Mack, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed May 26, 2015
Affirmed
Chutich, Judge
Dissenting, Cleary, Chief Judge
Polk County District Court
File No. 60-CV-13-1824
Lee M. Orwig, Douglas V. Hazelton, Halberg Criminal Defense, Bloomington,
Minnesota (for appellant)
Lori Swanson, Attorney General, Elizabeth Oji, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Cleary, Chief Judge; Chutich, Judge; and Toussaint,
Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Mitchell Mack challenges a district court order sustaining his license
revocation under the implied-consent law, arguing that no reasonable, articulable
suspicion supported the initial stop of his truck. He further claims that any reasonable,
articulable suspicion that he was driving while impaired was dispelled before the officer
expanded the scope of the stop by requesting a preliminary breath test. Because
reasonable, articulable suspicion existed throughout the officer’s investigation, we affirm.
FACTS
At 2:00 a.m. on August 25, 2013, Sergeant Mike Anderson observed a pickup
truck turn off a seldom-used gravel road in front of his patrol car. The truck kicked up
dust behind it, which caused Sergeant Anderson to believe that it had turned at a high rate
of speed. Sergeant Anderson pulled the truck over after he saw it swerve once and then
cross the fog line three times.
Sergeant Anderson identified the driver as appellant Mitchell Mack. Two
passengers were also in the truck. Sergeant Anderson could smell a strong odor of
alcohol coming from the truck and asked Mack if he had been drinking. Mack said that
he had not. Mack also said that he did not know of any open alcohol containers in the
truck.
Sergeant Anderson noticed a whiskey bottle and several beer cans in the truck cab.
The three eventually told Sergeant Anderson that they had gone to Grand Forks to watch
races, but the races were rained out so instead they drank in the truck. Mack then
conceded that he had been drinking earlier in the evening. Sergeant Anderson did not
notice any slurred speech from Mack but told Mack that he would get a ticket for
allowing open containers in the truck. Sergeant Anderson directed the passengers to put
the bottle and cans in a bag and then place the bag in the truck bed. He took IDs from all
three persons to check for warrants. As he approached his squad car, Sergeant Anderson
privately told another officer who had arrived that he was not going to ticket any of the
three but that he was just going to scare them and “kick them loose.”
When Sergeant Anderson ran Mack’s license through his computer, he learned
that Mack, who was then 21 years old, had previously been arrested for driving while
impaired. Sergeant Anderson returned to the truck to give Mack a preliminary breath
test, but Mack blocked the straw with his tongue, forcing Sergeant Anderson to capture a
manual sample. This sample registered an alcohol concentration of .10.
Sergeant Anderson then had Mack perform field sobriety tests. Mack showed five
clues of impairment in the horizontal gaze nystagmus test. Sergeant Anderson gave
Mack another preliminary breath test, and this properly captured sample registered an
alcohol concentration of .139. Sergeant Anderson arrested Mack for driving while
impaired, and Mack’s driving privileges were revoked under the implied-consent law.
In September 2013, Mack filed a petition for judicial review of the license
revocation. The district court held a hearing in April 2014 and sustained the revocation.
Mack appealed.
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DECISION
I. Stop of the Truck
Mack first argues that the district court clearly erred in finding that Sergeant
Anderson had a valid reason for stopping Mack, claiming that the squad car video shows
that he did not cross the fog line. The commissioner counters, and we agree, that the
district court’s findings are not clearly erroneous.
This court reviews a district court’s determination regarding the legality of an
investigatory traffic stop and reasonable suspicion de novo. Wilkes v. Comm’r of Pub.
Safety, 777 N.W.2d 239, 242-43 (Minn. App. 2010). Findings of fact are reviewed for
clear error, and due weight is given to the inferences drawn from those facts by the
district court. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). A finding of fact is
clearly erroneous only when the court is left with the “definite and firm conviction that a
mistake has been committed.” Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440
(Minn. 2002) (quotation omitted).
A traffic stop is permissible if “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). Generally, the observation of any
traffic violation—no matter how insignificant—sufficiently supports a particularized and
objective basis for the stop. Id. at 823. Minnesota law requires a car to be driven within
a single lane of traffic. Minn. Stat. § 169.18, subd. 7(a) (2014). Crossing a traffic line, or
even swerving within a driver’s own lane, provides reasonable, articulable suspicion to
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justify a traffic stop. See State v. Wagner, 637 N.W.2d 330, 336 (Minn. App. 2001);
State v. Dalos, 635 N.W.2d 94, 96 (Minn. App. 2001).
The district court heard testimony from Sergeant Anderson in which he testified
that Mack crossed over the fog line “on a few different occasions.” The district court
also viewed the squad car footage and stated that the “quality and clarity of the recording
made it difficult to determine whether [Mack] crossed the fog line.” The district court
credited Sergeant Anderson’s testimony and found that the truck crossed the fog line on
more than one occasion.
Mack claims that review of the squad car video shows that the truck did not cross
the fog line, thereby discrediting Sergeant Anderson’s testimony and showing that the
district court’s finding was clearly erroneous. But as the district court noted, the quality
of the video makes it difficult to determine if Mack crossed the fog line. Because the
video lacks clarity, Mack cannot establish that the district court’s finding is clearly
erroneous. A district court has discretion to make factual findings based on testimony
and review of a video. State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999).
Where the two conflict, a district court must make factual findings, and we defer to the
district court’s credibility determinations. Id. The district court credited the testimony of
Sergeant Anderson, and our review of the video does not give rise to a definite and firm
conviction that a mistake was made.
II. Expansion of the Scope of Search
Mack next asserts that the district court erred by ruling that Sergeant Anderson
validly expanded the scope and duration of the stop. The commissioner contends that the
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totality of the circumstances supports an objective finding of reasonable, articulable
suspicion that Mack was driving while impaired. We agree.
The scope and duration of an investigatory traffic stop must be limited to the
justification for the stop. State v. Fort, 660 N.W.2d 416, 418 (Minn. 2003). But an
officer may expand the scope of a stop beyond the initial justification if the officer has
independent, reasonable, and articulable suspicion of other criminal activity. State v.
Burbach, 706 N.W.2d 484, 488 (Minn. 2005). Similarly, a police officer may request a
preliminary breath test if the officer possesses “specific and articulable facts” that lead
the officer to believe that a person has been driving while intoxicated. State, Dept. of
Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981); see also Minn. Stat.
§ 169A.41, subd. 1 (2014) (stating that a preliminary screening test may be given when
an “officer has reason to believe” that a person is driving while impaired); State v.
Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (noting that administering a
preliminary breath test does not require probable cause), review denied (Minn. May 16,
1986). Reasonable, articulable suspicion is an objective standard determined by the
totality of the circumstances. Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246
(Minn. App. 1986). We review whether reasonable, articulable suspicion existed de
novo. Burbach, 706 N.W.2d at 487.
Mack argues that Sergeant Anderson improperly expanded the scope of the stop
by giving him a preliminary breath test after he no longer suspected that Mack was
driving while impaired. Mack claims that the video demonstrates that Sergeant Anderson
no longer believed that Mack was driving while impaired, including Sergeant Anderson’s
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statements to Mack that he could not smell alcohol on Mack and, “No one’s drunk and
I’m happy about that.” Mack additionally points to several statements that Sergeant
Anderson made to another officer, including that “the driver hasn’t been drinking at all,”
“I’m just going to run them and kick them loose,” and “I’m just going to scare . . . them
and send them down the road.” Mack asserts that these statements show that Sergeant
Anderson’s initial suspicion was dispelled, and he only decided to give Mack a
preliminary breath test once he learned that Mack had a previous driving while impaired
conviction.
The video does not conclusively show that Sergeant Anderson’s suspicion was
dispelled, however. His statements, questions, and actions show that he was continuing
to investigate the initial reason for which he pulled Mack over until he ultimately
administered the preliminary breath test. And even if Sergeant Anderson subjectively
believed that Mack was not intoxicated, an officer’s subjective beliefs are generally
irrelevant when analyzing the validity of a search. See, e.g., State v. Everett, 472 N.W.2d
864, 867 (Minn. 1991). Reviewing the totality of the circumstances under the proper
objective standard, reasonable, articulable suspicion that Mack was driving while
impaired existed, and therefore Sergeant Anderson could request a preliminary breath
test.
Sergeant Anderson initially stopped Mack for swerving and crossing the fog line
three times. This reason, coupled with the late hour, would support reasonable,
articulable suspicion of impaired driving. See Dalos, 635 N.W.2d at 95-96. Once
Sergeant Anderson made contact with Mack, he smelled a strong odor of alcohol in the
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truck and saw that Mack’s eyes were watery. Mack admitted, after first denying it, that
he drank earlier in the night. And Sergeant Anderson found open alcohol containers in
the truck, including a bottle of whiskey. These circumstances provided an objective basis
to conclude that reasonable, articulable suspicion existed for a preliminary breath test to
be given. See, e.g., State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (stating
that two indicia of intoxication provided reasonable, articulable suspicion for a
preliminary breath test); State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001)
(holding that an odor of alcohol provides a lawful basis to continue a detention), review
denied (Minn. Sept. 25, 2001).
To be sure, the video shows that Sergeant Anderson did not say out loud that he
was going to give Mack a preliminary breath test until after he learned of Mack’s earlier
charge.2 But a preliminary breath test may be given even when an officer is unsure
whether a driver is under the influence of alcohol. Marben v. State, Dept. of Pub. Safety,
294 N.W.2d 697, 700 (Minn. 1980). Indeed, Sergeant Anderson testified that he planned
on giving Mack a preliminary breath test before he learned of Mack’s previous driving-
while-impaired charge, and the district court found this testimony to be credible.
In addition to these circumstances, Sergeant Anderson also learned that Mack,
who was only 21 years old at that time, was previously arrested for driving while
impaired. We agree with Mack that this fact, standing alone, would not support
reasonable, articulable suspicion. See State v. Henning, 666 N.W.2d 379, 385-86 (Minn.
2
Sergeant Anderson testified that he made the statement about giving Mack a
preliminary breath test to a ride-along student in his patrol car to inform the student what
he was thinking.
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2003) (holding that mere presence of special license plates issued under Minnesota
Statutes section 169A.60 does not support reasonable, articulable suspicion); cf. State v.
Carter, 697 N.W.2d 199, 205 (Minn. 2005) (stating that a criminal record cannot form
the sole basis for probable cause). But we do not agree that this fact, once known to
Sergeant Anderson, cannot be considered with the many other facts giving rise to
reasonable, articulable suspicion that Mack was driving under the influence of alcohol.
After stopping Mack for crossing the fog line at 2:00 a.m., smelling alcohol, noticing a
whiskey bottle and beer cans, and being lied to by Mack about whether he had been
drinking, Mack’s earlier conviction for driving while impaired was but one more fact for
Sergeant Anderson to consider in deciding to test Mack. And given these circumstances,
Sergeant Anderson would have been remiss had he not ensured that Mack could safely
drive before he allowed him to continue on his way. In sum, the totality of the
circumstances demonstrates that Sergeant Anderson had objective, reasonable, and
articulable suspicion to request that Mack take a preliminary breath test.
Mack also argued in his brief that the warrantless search of his breath was
unconstitutional and that the implied consent advisory violated his due-process rights. At
oral argument, however, he conceded that these issues are without merit following State
v. Bernard, 859 N.W.2d 762 (Minn. 2015).
Affirmed.
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CLEARY, Chief Judge (dissenting)
I agree with the majority that the district court was not clearly erroneous in ruling
that the stop of appellant’s truck was valid. I respectfully dissent only as it regards the
remaining issue: whether the officer illegally expanded the scope of the stop. I believe
that the officer’s reasonable suspicion for stopping appellant was dispelled after his
conversation with appellant, as the officer’s own statements confirm. The only reason
the officer had for requiring appellant to provide a breath sample for a preliminary
screening test was his belated discovery of a prior conviction for driving while impaired.
This is an insufficient basis under the applicable statute.
The statute regarding preliminary breath tests (PBT) provides:
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
[169A.20, 169A.31, or 169A.33], the officer may require the
driver to provide a sample of the driver’s breath for a
preliminary screening test . . .
Minn. Stat. § 169A.41, subd. 1 (2014) (emphasis added).
Here, the “reason to believe” appellant might be impaired was not “the manner” in
which appellant had been driving but the fact that he had been convicted before for
driving while impaired. This basis for requiring a breath sample is not authorized under
the statute.
As the majority notes, a police officer can request a preliminary breath test if the
officer has a “specific and articulable suspicion” that a suspect was driving while
D-1
impaired. State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981);
see also Minn. Stat. § 169A.41, subd. 1 (describing when police can give a PBT). We
determine the existence of a reasonable, articulable suspicion objectively under the
totality of the circumstances. Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246
(Minn. App. 1986). However, the constitutionality of the initial stop does not establish
the constitutionality of a later intrusion. State v. Hickman, 491 N.W.2d 673, 675 (Minn.
App. 1992), review denied (Minn. Dec. 15, 1992). An officer’s reasonable, articulable
suspicion can be dispelled by subsequent information. Id. When the suspicion is
dispelled, “[t]he legal test for continuing detention is the same as that for the initial stop.”
State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001), review denied (Minn. Sept. 25,
2001).
In this case, even assuming that the officer had a reasonable suspicion justifying
the stop, those suspicions were dispelled after his interaction with appellant.
Consider: (1) the officer stated that he did not smell any alcohol on appellant;
(2) appellant did not have slurred speech; (3) the officer told appellant that no one was
drunk and he was happy about that; (4) the officer told appellant that he was getting a
ticket for open container; (5) the officer told another officer that he was going to “scare”
them and then “send them down the road” and let appellant and his passengers go without
a ticket after running them for warrants; and (6) the officer stated that he did not believe
that appellant had been drinking at all. An objective examination of the totality of the
circumstances, as described by the officer who stopped the vehicle, demonstrates that
D-2
there was no reasonable, articulable suspicion to believe that appellant was driving while
impaired.
Once the officer dispelled any reasonable suspicion, he was required to reestablish
reasonable suspicion that appellant was driving while impaired to make a subsequent
search. See Hickman, 491 N.W.2d at 675. The officer ran appellant’s information to
check for warrants, revealing that appellant had a prior driving while impaired
conviction. After discovering this information, the officer stated that he was going to
give appellant a PBT. A prior violation does not give the police a reasonable, articulable
suspicion that a driver was driving while impaired. See State v. Henning, 666 N.W.2d
379, 385-86 (Minn. 2003) (holding that police could not pull over a vehicle based solely
on special plates indicating that one of the vehicle’s owners had driven while impaired).
In requesting that appellant provide a breath sample pursuant to Minn. Stat.
§ 169A.41, subd. 1, the officer illegally expanded the scope and duration of the initial
stop. Consequently, the district court order should be reversed and the revocation of
appellant’s driver’s license should be rescinded.
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