This opinion will be unpublished and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
A13-1703
Gerald John Westman, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed August 25, 2014
Affirmed
Stauber, Judge
Blue Earth County District Court
File No. 07CV102187
Shane C. Perry, Perry & Perry, P.L.L.P., Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Jacob Fischmann, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Stauber, Presiding Judge; Worke, Judge; and
Larkin, Judge.
UNPUBLISHED OPINION
STAUBER, Judge
In an appeal from the district court’s order sustaining the revocation of his driver’s
license under the implied-consent law for failing a breath test, appellant argues that (1) in
upholding the stop, the district court relied only on the tip from a citizen-informant and
ignored the testimony of the police officer as to his unimpaired driving conduct; (2) there
was no evidence of intoxication supporting the officer’s expansion to administer field
sobriety tests; (3) the officer lacked probable cause to arrest appellant for driving while
intoxicated (DWI); (4) the breath-test evidence should not have been admitted because
the police did not obtain a warrant and the state failed to prove that appellant validly
consented to the search; and (5) the implied-consent law is unconstitutional. We affirm.
FACTS
On June 19, 2010, at approximately 11:22 p.m., Mankato Police Officer Steven
Hoppe received a complaint from dispatch regarding a vehicle that was “swerving, [and]
weaving on the road in front of the complaining party.” The complaint was from an
identified citizen informant who provided the police with his name, contact information,
the location of the vehicle, and a description of the vehicle that included the vehicle’s
license-plate number. Officer Hoppe located the vehicle and followed it for about a mile
until the vehicle exited the highway at a location where a vehicle stop would not
endanger anyone. The driver of the vehicle was identified as appellant Gerald Westman.
Upon speaking with appellant, Officer Hoppe detected a faint odor of alcohol
emanating from the vehicle and from appellant’s person. Officer Hoppe also observed
that appellant’s eyes were watery and glassy and that his pupils were dilated. Because
these observations indicated that appellant could be intoxicated, Officer Hoppe
performed a “mini version of the [horizontal gaze nystagmus (HGN) test] with
[appellant] seated in the vehicle.” Officer Hoppe observed three to four clues while
conducting this test indicating that appellant was likely intoxicated. Officer Hoppe asked
appellant to exit the vehicle and conducted a full HGN test and observed “all six clues”
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indicating alcohol impairment. Officer Hoppe also observed that appellant had good
speech, normal reactions to instructions, and a polite attitude. Appellant consented to
take a preliminary breath test (PBT). The test results showed an alcohol concentration of
.127. Appellant was arrested for DWI and read the implied-consent advisory. Appellant
consented to a breath test, which revealed an alcohol concentration of .10. Based on the
result of the breath test, respondent Minnesota Commissioner of Public Safety revoked
appellant’s driver’s license.
Appellant petitioned the district court to rescind the driver’s-license-revocation
order, arguing (1) that the stop of his vehicle was not based on reasonable suspicion;
(2) he was arrested without probable cause; (3) the implied-consent law is
unconstitutional on its face; and (4) his consent to alcohol-concentration testing was not
voluntary because he was warned that failure to submit to testing was a crime. Following
a hearing and after considering the parties’ written memoranda, the district court denied
appellant’s petition, concluding that the stop and arrest were both lawful, appellant’s
consent to testing was valid, and the implied-consent law does not violate the
constitution. This appeal followed.
DECISION
I. Lawfulness of the initial stop
Appellant argues that Officer Hoppe’s initial stop of appellant’s vehicle was
unlawful because the district court failed to consider that Officer Hoppe never observed
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appellant’s vehicle weave or violate any traffic laws.1 “We review a district court’s
determination regarding the legality of an investigatory traffic stop and questions of
reasonable suspicion de novo.” Wilkes v. Comm’r of Pub. Safety, 777 N.W.2d 239, 242-
43 (Minn. App. 2010). But “[w]e review the district court’s findings of fact for clear
error.” State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011). “In accordance with the
Fourth Amendment, a police officer may not stop a vehicle without a specific and
articulable suspicion of a violation.” Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326,
328 (Minn. App. 2001), review denied (Minn. Mar. 19, 2002). Only a minimal factual
basis is required to maintain the lawfulness of a routine traffic stop. Id. Reasonable
suspicion is based upon an examination of the totality of the circumstances. O’Neill v.
Comm’r of Pub. Safety, 361 N.W.2d 471, 473 (Minn. App. 1985). “[T]rained law-
enforcement officers may make inferences and deductions that might well elude an
untrained person.” Id. (quotation omitted).
Appellant asserts that Officer Hoppe lacked reasonable suspicion to stop
appellant’s vehicle, or that the suspicion based upon the informant’s tip had dissipated,
because Officer Hoppe followed appellant for one mile and did not personally observe
anything suspicious about the vehicle or appellant’s driving. But an officer need not
personally observe a traffic violation in order to justify a traffic stop. Marben v. State,
1
The state asserts that appellant waived this argument. See Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988) (holding that matters not argued to and considered by the district
court are not reviewable). Although there is some confusion in the transcript, appellant
did raise this issue to the district court in his written memorandum following the close of
testimony. And the district court addressed the argument thoroughly in its opinion.
Therefore, we conclude that the argument was not waived.
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Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980); Rose, 637 N.W.2d at 328. “An
informant’s tip may be adequate to support an investigative stop if the tip has sufficient
indicia of reliability.” Magnuson v. Comm’r of Pub. Safety, 703 N.W.2d 557, 560 (Minn.
App. 2005). There are two factors in determining the reliability of an informant’s tip:
“(1) identifying information given by the informant, and (2) the facts that support the
informant’s assertion that a driver is under the influence.” Id. (quotation omitted).
“Identified citizen informants are presumed to be reliable.” Id. And an officer is entitled
to rely upon information from an informant who provides his contact information so that
“he may be located and held accountable for providing false information.” Id. (quotation
omitted).
In this case, the informant supplied police dispatch with his name and contact
information and stated that he observed a black Ford F-150 swerving on the road and
provided the vehicle’s license-plate number as well as the vehicle’s precise location and
direction of travel.2 Because the informant was an identified private citizen, the
information is presumed reliable. See Marben, 294 N.W.2d at 699. Moreover, the
informant supplied sufficient facts from which a reasonable officer could conclude that
the driver of the suspected vehicle was impaired and that the informant personally saw
the impaired driving conduct. See Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921-
22 (Minn. App. 2000) (informant’s tip reliable where the informant provided his name
and gave the location and direction of travel of the suspect vehicle). These facts are
2
The only indication of what the informant said to the police is Officer Hoppe’s
testimony regarding what dispatch told him the informant said. The informant did not
testify, and the informant’s phone call to dispatch was never admitted as evidence.
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sufficient to meet the minimal requirement of reasonable, articulable suspicion for a
traffic stop. See Marben, 294 N.W.2d at 699 (discussing the “minimal” factual basis
required for a traffic stop).
II. Lawfulness of the field sobriety testing and PBT
Appellant also argues that Officer Hoppe lacked reasonable suspicion to require
appellant to submit to field sobriety testing and a PBT because the officer’s observations
of appellant were not inconsistent with characteristics of a sober person. Appellant
asserts that he exhibited clear speech, that his pupils were dilated because it was dark
outside, and that his eyes were watery because it was late, and he was tired. Appellant
also asserts that Officer Hoppe’s suspicion should have been dispelled when appellant
stated that he had not been drinking.
“An initially valid stop may become invalid if it becomes intolerable in its
intensity or scope.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (quotation
omitted). “[E]ach incremental intrusion during a stop must be strictly tied to and justified
by the circumstances which rendered [the initiation of the stop] permissible.” Id.
(quotation omitted). Further intrusions must be justified by “(1) the original legitimate
purpose of the stop, (2) independent probable cause, or (3) reasonableness.” Id. at 365.
During a traffic stop, an officer may not “disregard known facts dispelling the suspicion”
that a crime is afoot. State v. Fiebke, 554 N.W.2d 755, 757 (Minn. App. 1996).
But Officer Hoppe testified that his observations of appellant confirmed his
suspicions that appellant was driving while intoxicated. Officer Hoppe detected an odor
of alcohol emanating from the vehicle and from appellant’s person. He also observed
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that appellant’s eyes were watery and glassy and that his pupils were dilated, which are
symptoms of a “central nervous system depressant” such as alcohol. Officer Hoppe
asked appellant if he had been drinking, and appellant denied drinking, whereupon
Officer Hoppe performed a quick HGN test and observed additional signs of intoxication.
These observations taken together with the informant’s observations of appellant’s
driving conduct support the officer’s reasonable suspicion that appellant was driving
while intoxicated. Moreover, Officer Hoppe testified that, in his professional experience,
intoxicated drivers sometimes have clear speech and adequate balance, and that these
factors do not necessarily dispel an officer’s suspicion of intoxication. Therefore,
because Officer Hoppe’s observations were consistent with the original legitimate
purpose of the stop, the continuation of the stop to require appellant to submit to field
sobriety testing and a PBT was lawful.
III. Lawfulness of the arrest for DWI
Appellant also argues that Officer Hoppe lacked probable cause to arrest appellant
for DWI because (1) evidence obtained as a result of the traffic stop cannot be considered
because the officer lacked reasonable suspicion for the stop and (2) evidence obtained
from the field sobriety tests and the PBT cannot be considered because the officer lacked
reasonable suspicion to justify those tests. But as previously explained, Officer Hoppe’s
reasonable suspicion was justified by the informant’s tip and by his observations of
appellant, namely the odor of alcohol, the appearance of appellant’s eyes, and the “mini”
HGN test; therefore, evidence obtained from the field sobriety tests and the PBT may be
considered.
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A police officer may arrest a person for DWI without a warrant upon probable
cause. Minn. Stat. § 169A.40, subd. 1 (2010). “Probable cause exists when all the facts
and circumstances would warrant a cautious person to believe the suspect was driving or
operating a vehicle while under the influence.” Andersen v. Comm’r of Pub. Safety, 410
N.W.2d 17, 19 (Minn. App. 1987) (quotation omitted). Results of a PBT may be used to
“assist . . . officers in making a probable cause determination.” Steele v. Comm’r of Pub.
Safety, 439 N.W.2d 427, 430 (Minn. App. 1989). Here, appellant’s PBT result showed
an alcohol concentration well over the legal limit. In addition, Officer Hoppe observed
that appellant’s eyes were watery and glassy, he exhibited signs of intoxication during the
HGN tests, and an odor of alcohol emanated from his person. Taken together, these facts
support a finding of probable cause to arrest for DWI. See Mell v. Comm’r of Pub.
Safety, 757 N.W.2d 702, 712 (Minn. App. 2008) (odor of alcohol combined with PBT
test results formed sufficient probable cause for DWI arrest); Hager v. Comm’r of Pub.
Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (officer’s observation that defendant had
bloodshot and watery eyes, smelled of alcohol, and failed a preliminary breath test
supported probable cause to arrest for DWI).
IV. Admissibility of the breath test
Appellant also argues that breath-test evidence obtained after he was read the
implied-consent advisory was not admissible because it was the product of unlawful
coercion and because the police lacked a warrant for the search. Searches conducted
without a warrant are presumed unreasonable, subject to only a few well-delineated and
established exceptions. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). But
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consent, where freely and voluntarily given, is a recognized exception to the warrant
requirement. Diede, 795 N.W.2d at 846. “Whether consent was voluntary is determined
by examining the totality of the circumstances, including the nature of the encounter, the
kind of person the defendant is, and what was said and how it was said.” Id. (quotation
omitted). “Consent is not involuntary merely because the circumstances of the encounter
are uncomfortable for the person being questioned.” Id. (quotation omitted). The
voluntariness of consent to a search is a question of fact, which this court reviews for
clear error. Id. The state bears the burden of showing that appellant’s consent to the
breath test for alcohol content was voluntary. See State v. Dezso, 512 N.W.2d 877, 880
(Minn. 1994) (stating that “the burden of proof is on the prosecutor to show that the
search and seizure was within the individual’s voluntary consent”).
Appellant argues that the state failed to present sufficient evidence to show that
appellant voluntarily consented to the breath test, and that the evidence shows that
appellant did not consent but rather submitted to the officer’s claim of lawful authority.
See State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (“Mere acquiescence on a claim
of police authority or submission in the face of a show of force is, of course, not
enough.”). Appellant testified that, had he not been advised that refusing to submit to a
test was a crime, he would not have consented to take a test. But the implied-consent
advisory, without more, does not amount to coercion so as to render a suspect’s consent
invalid. State v. Brooks, 838 N.W.2d 563, 570 (Minn. 2013). That is because the law
gives individuals the choice to refuse to take an alcohol-concentration test, even though
test refusal comes with penalties. Id. at 571. Being asked to take an alcohol-
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concentration test after being arrested and told that test refusal is a crime does not mean
that a suspect is “coerced in the sense that his will had been overborne and his capacity
for self-determination critically impaired.” Id. (quotation omitted).
In this case, the record shows that appellant was read the implied-consent advisory
and stated that he understood its meaning. Appellant was asked whether he wanted to
consult an attorney before making a decision, and appellant declined. Appellant then
consented to a breath test. Appellant was stopped around 11:30pm and the breath test
occurred at the police station shortly after midnight. On these facts, we conclude that
appellant’s consent was voluntary. See Brooks, 838 N.W.2d at 571-72 (suspect who was
read the implied consent advisory and was not detained for a long period of time
voluntarily consented to alcohol-concentration testing). Accordingly, we do not consider
the state’s alternative argument that appellant’s consent was implied by law.
V. Constitutionality of the implied-consent law
Appellant argues that the implied-consent statute is unconstitutional because it
“impl[ies] consent where none is actually given” and because it “criminaliz[es] a
motorist’s refusal to consent to a test that . . . requires a search warrant.” But in this case
appellant’s consent was not implied, nor was he convicted of test refusal. We have
concluded, based upon the totality of the circumstances, that appellant voluntarily
consented to an alcohol-concentration test, and that his consent was not coerced even
though refusal to comply with testing may be penalized. Therefore, we do not conclude
that appellant’s consent is derived solely by law. Because appellant is required to
demonstrate a direct injury when challenging the constitutionality of a statute, and
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because we do not adjudicate “abstract questions” or “generalized grievances,” we
decline to consider appellant’s constitutional arguments. See Hanson v. Woolston, 701
N.W.2d 257, 262 (Minn. App. 2005), review denied (Minn. Oct. 18, 2005); see also
League of Women Voters Minn. v. Ritchie, 819 N.W.2d 636, 645 n.7 (Minn. 2012)
(stating that appellate courts may raise standing sua sponte because it is a jurisdictional
question).
Affirmed.
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