This opinion will be unpublished and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
A14-0229
Teric Alan Carlson, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed September 2, 2014
Affirmed
Peterson, Judge
Brown County District Court
File No. 08-CV-12-574
Philip Jay Elbert, Fairmont, Minnesota (for appellant)
Lori Swanson, Attorney General, Rory Christopher Mattson, Assistant Attorney General,
St. Paul, Minnesota (for respondent)
Considered and decided by Peterson, Presiding Judge; Reyes, Judge; and
Klaphake, Judge.*
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from a district court order sustaining the revocation of appellant’s
driver’s license under the implied-consent law, appellant argues that the odor of alcohol
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
emanating from the passenger compartment of the car he was driving did not provide a
basis for the deputy sheriff to expand the traffic stop by asking him to perform field
sobriety tests. We affirm.
FACTS
At approximately 1:30 a.m., Deputy Matthew Ibberson of the Brown County
Sheriff’s Department stopped a car because the tint on its windows was “extremely dark.”
See Minn. Stat. § 169.71, subd. 4(a)(3) (2012) (“No person shall drive or operate any
motor vehicle required to be registered in the state of Minnesota upon any street or
highway . . . when any side window or rear window . . . has a light transmittance of less
than 50 percent plus or minus three percent in the visible light range . . . .”). Ibberson
walked to the passenger side of the vehicle and, as soon as the passenger-side window
was rolled down, he “smelled a strong odor of alcoholic beverage coming out of the
vehicle.”
Appellant Teric Carlson was driving the vehicle, and a female passenger sat in the
passenger’s seat. Ibberson explained why he had stopped the car, and he asked appellant
whether he had been drinking. Appellant said that he had not been drinking and stated
that he was giving someone a ride home from the bar where he was working that night.
After going to his squad car to run appellant’s driver’s license through police
records, Ibberson returned and asked appellant if he would perform field sobriety tests.
Appellant got out of his car, and Ibberson noticed that his eyes were glassy and his breath
smelled of alcohol. Appellant refused to perform field sobriety tests, but he asked to take
a breath test. Ibberson administered a preliminary breath test, and the result was .138.
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Ibberson arrested appellant for driving while impaired and took him to the Sleepy
Eye Police Department, where he read appellant the implied-consent advisory. Ibberson
then brought appellant to Sleepy Eye Medical Center for a blood draw; appellant’s
alcohol concentration was .13.
Respondent Commissioner of Public Safety revoked appellant’s driving privileges,
and appellant moved to rescind the revocation, arguing that Ibberson improperly
expanded the scope of the stop. The district court sustained the revocation.
Appellant’s counsel wrote to the district court, asking it “to correct a legal finding”
in the order. Counsel wrote: “In the Order, the Court stated that the odor of alcohol
emanating from Petitioner’s vehicle ‘…provided a basis for some further investigation
into the possibility that Petitioner was driving while impaired.’ I submit that this is an
incorrect statement of the law.” The district court reaffirmed its order and explained that
it likely wrote the statement appellant’s counsel quoted “because this is an impaired
driving case and those were the facts of this case. A better phrasing might have been that
the odor of alcohol from Petitioner’s vehicle ‘provided a basis for further investigation
into other possible illegal activity,’ which it certainly did.”
Almost 11 months later, appellant brought a motion to reopen the matter under
Minn. R. Civ. P. 60.02, which the district court denied. This appeal followed.1
1
Because the record does not show that any party served written notice of the filing of
any of the district court’s orders, the 60-day period for filing an appeal from the orders
did not begin to run, and the appeal from the order sustaining the revocation of
appellant’s driver’s license is properly before us. See Minn. R. Civ. App. P.104.01, subd.
1 (appeal may be taken from appealable order within 60 days after service by any party of
written notice of its filing).
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DECISION
Appellant argues that the district court erred when it found that the odor of
alcoholic beverage coming from inside appellant’s car provided a basis for further
investigation into other possible illegal activity. “We undertake a de novo review to
determine whether a search or seizure is justified by reasonable suspicion or by probable
cause.” State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005). “The district court’s
findings of fact are reviewed for clear error.” Id.
In interpreting article I, section 10, of the Minnesota constitution, the supreme
court has explicitly adopted the principles and framework of Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868, 20 L.Ed.2d 889 (1968), for evaluating the reasonableness of seizures
during traffic stops even when a minor law has been violated. State v. Askerooth, 681
N.W.2d 353, 363 (Minn. 2004). Under these principles and framework:
The basis for intrusion must be reasonable so as to comply
with article I, section 10’s general proscription against
unreasonable searches and seizures. To be reasonable, the
basis must satisfy an objective test: would the facts available
to the officer at the moment of the seizure . . . warrant a man
of reasonable caution in the belief that the action taken was
appropriate. The test for appropriateness, in turn, is based on
a balancing of the government’s need to search or seize and
the individual’s right to personal security free from arbitrary
interference by law officers. Finally, it is the state’s burden to
show that a seizure was sufficiently limited to satisfy these
conditions.
Id. at 364-65 (Minn. 2004) (citations and quotations omitted).
Article I, Section 10 of the Minnesota Constitution requires
that each incremental intrusion during a traffic stop be tied to
and justified by one of the following: (1) the original
legitimate purpose of the stop, (2) independent probable
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cause, or (3) reasonableness, as defined in Terry.
Furthermore, the basis for the intrusion must be
individualized to the person toward whom the intrusion is
directed.
Id. at 365.
Ibberson’s request that appellant submit to field sobriety testing was not tied to
and justified by the original purpose of the stop, which was to investigate the tint of
appellant’s car windows. Ibberson made the request only after he detected the odor of
alcohol. But because an odor of alcohol may be present even when a driver is not
impaired, Ibberson’s detection of an alcohol odor did not establish probable cause that
appellant was driving while impaired. See State v. Johnson, 314 N.W.2d 229, 230 (Minn.
1982) (stating that “[t]he test of probable cause to arrest is whether the objective facts are
such that under the circumstances ‘a person of ordinary care and prudence (would)
entertain an honest and strong suspicion’ that a crime has been committed.” (quoting
State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)).
Thus, the issue before us is whether the incremental intrusion of asking appellant
to submit to field sobriety testing was reasonable. That is, would the facts available to
Ibberson at the moment he asked appellant to perform field sobriety tests warrant a
person of reasonable caution in the belief that the request was appropriate? Whether the
request was appropriate is based on a balancing of the government’s need to prevent
impaired driving and appellant’s right to be free from arbitrary interference by Ibberson.
“[I]n justifying the particular intrusion the police officer must be able to point to specific
and articulable facts which, taken together with rational inferences from those facts,
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reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880. All that is
required is that the intrusion is not the product of mere whim, caprice, or idle curiosity.
Marben v. Comm’r of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).
Ibberson testified that at the moment he asked appellant to perform field sobriety
tests he knew that appellant was driving a car with one passenger at 1:30 a.m. after
leaving the bar where he had been working that night, and there was a strong odor of
alcohol emanating from the car. Ibberson did not know whether the source of the odor
was appellant, his passenger, or both of them. These facts would warrant a person of
reasonable caution in the belief that asking appellant to perform field sobriety tests to
determine whether he was under the influence of alcohol was appropriate. The expansion
of the stop was limited to this purpose.
Affirmed.
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