This opinion will be unpublished and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
A13-2364
State of Minnesota,
Respondent,
vs.
Amanda Sue Thorne,
Appellant.
Filed September 22, 2014
Affirmed
Reilly, Judge
Hennepin County District Court
File No. 27-CR-13-12553
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Jamie L. Kreuser, Assistant St. Louis Park City Attorney, Minneapolis, Minnesota (for
respondent)
William J. Mauzy, Casey T. Rundquist, Law Offices of William J. Mauzy, Minneapolis,
Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant challenges her impaired-driving conviction on the ground that there was
insufficient evidence supporting the vehicle stop and further challenges the
constitutionality of the chemical test. Because there was reasonable, articulable suspicion
to stop appellant’s vehicle and she freely and voluntarily consented to chemical testing,
we affirm.
FACTS
On April 20, 2013, around 3:45 a.m. a Minnesota State Patrol trooper saw a red
sport utility vehicle weaving over the lane lines and veering onto the right shoulder of the
highway. The trooper continued to follow the vehicle and noticed that it “regularly”
crossed over the lane lines and drove down the middle of the lane line without signaling
lane changes. Based on the time of day and the driving conduct, the trooper concluded
that the vehicle was potentially being driven by an impaired driver and initiated a traffic
stop. The trooper identified appellant as the driver. The trooper noticed a strong smell of
alcohol coming from the vehicle and saw that appellant’s eyes were bloodshot and
watery. The trooper led appellant through a series of field sobriety tests and concluded
that she failed those tests. A preliminary breath test revealed an alcohol concentration of
.16.
The trooper placed appellant under arrest and read her the motor vehicle implied-
consent advisory in the squad car at the stop location. The trooper asked appellant if she
wished to consult with an attorney, and she indicated that she did. The trooper provided
appellant with her cell phone and telephone directories and left her alone in the squad car
to make telephone calls. The trooper transported appellant to the Hennepin County jail,
and appellant continued to make phone calls in the squad car. Appellant contacted her
mother but did not contact an attorney. After appellant stopped making phone calls, the
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trooper asked if she was finished, and she stated that she was. The trooper asked
appellant if she would submit to a breath test, and she agreed. The breath test recorded
an alcohol concentration of .15, and the state charged appellant with one count of fourth-
degree DWI, alcohol concentration .08 within two hours, pursuant to Minn. Stat.
§ 169A.20, subd. 1(5) (2012), and one count of fourth-degree DWI, driving while
impaired, pursuant to Minn. Stat. § 169A.20, subd. 1(1) (2012).
The district court held an evidentiary hearing to consider whether there was a legal
basis to stop appellant’s vehicle and whether appellant validly consented to submit to
chemical testing. The district court admitted testimony from the state trooper and
received the squad car video into evidence. The parties reappeared for a plea hearing and
sentencing, and the district court judge denied appellant’s motion to suppress from the
bench. With respect to the stop issue, the district court concluded that there was a legal
basis to stop the vehicle. The district court reviewed the squad video and determined that
there were “numerous times” when the vehicle did not stay in its lane, including one
instance where the vehicle was “very substantially into the fog or shoulder lane,” with the
wheel “well over that line.” The district court concluded that the trooper had reasonable,
articulable suspicion to stop appellant’s vehicle based upon appellant’s driving conduct,
and the stop was therefore lawful.
With respect to the consent issue, the district court found that the trooper read
appellant the implied-consent advisory and that appellant understood the advisory. The
district court further found that the trooper gave appellant the opportunity to speak with
an attorney. The district court recognized that, although appellant did not speak with an
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attorney, that was not a “necessary element” under Brooks. The district court concluded
that appellant consented to submit to testing.
Appellant stipulated to the state’s evidence pursuant to Minnesota Rule of
Criminal Procedure 26.01, subdivision 4, to preserve the pretrial issues for appeal. The
parties agreed to amend the charges to one count of fourth-degree DWI, alcohol
concentration .08 within two hours, pursuant to Minn. Stat. § 169A.20, subd. 1(5), and
one count of careless driving. The district court convicted appellant on both counts and
sentenced her. This appeal followed.
DECISION
I.
Appellant argues that the district court erred in determining that the trooper had
reasonable, articulable suspicion to stop appellant’s vehicle and denying her motion to
suppress. 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 district court’s legal determinations de novo.” State v. Gauster, 752
N.W.2d 496, 502 (Minn. 2008). The United States Constitution and the Minnesota
Constitution prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn.
Const. art. I, § 10. A traffic stop constitutes a seizure implicating the Fourth Amendment.
State v. Thiel, 846 N.W.2d 605, 610 (Minn. App. 2014), review denied (Minn. Aug. 5,
2014).
However, limited investigatory stops are permissible if a law-enforcement officer
has “reasonable articulable suspicion of a motor vehicle violation or of criminal activity.”
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State v. Johnson, 645 N.W.2d 505, 508 (Minn. App. 2002). A reasonable, articulable
suspicion exists if the police officer can present “a particularized and objective basis for
suspecting the seized person of criminal activity.” State v. Cripps, 533 N.W.2d 388, 391
(Minn. 1995). The standard for such a stop is minimal, but must be based on more than
“mere whim, caprice, or idle curiosity.” Marben v. State Dep’t of Pub. Safety, 294
N.W.2d 697, 699 (Minn. 1980). Thus, “[a] hunch, without additional objectively
articulable facts, cannot provide the basis for an investigatory stop.” State v. Harris, 590
N.W.2d 90, 101 (Minn. 1999).
The trooper testified that he observed appellant’s vehicle weaving over the lane
lines “way up” onto the right shoulder, that the vehicle’s tires crossed over the fog line,
and that the vehicle “regularly” crossed over the lane lines without signaling lane
changes. Minnesota law is clear that “[i]f an officer observes a violation of a traffic law,
however insignificant, the officer has an objective basis for stopping the vehicle.” State
v. George, 557 N.W.2d 575, 578 (Minn. 1997). On laned highways, “[a] vehicle shall be
driven as nearly as practicable entirely within a single lane.” Minn. Stat. § 169.18, subd.
7(a) (2012). Numerous appellate court cases have likewise determined that crossing over
traffic lanes, swerving, and failing to stay within properly marked traffic lanes provides
reasonable, articulable suspicion of a traffic-law violation sufficient to justify a stop. See,
e.g., State v. Jones, 649 N.W.2d 481, 484 (Minn. App. 2002) (finding police stop of
vehicle lawful where driver changed lanes without signaling); State v. Wagner, 637
N.W.2d 330, 336 (Minn. App. 2001) (finding reasonable basis for stop where driver
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crossed center line and drove onto shoulder). Based on appellant’s driving conduct, the
trooper had an objective basis for stopping her vehicle.
Appellant argues that even if she weaved within her lane, she otherwise
maintained safe driving habits. It is true that a single instance of swerving within one’s
own lane of traffic is not sufficient, by itself, to create a reasonable, articulable suspicion
of criminal activity to support a traffic stop. State v. Dalos, 635 N.W.2d 94, 96 (Minn.
App. 2001). Here, however, the district court found that appellant committed a traffic
violation by failing to stay within her lane of traffic. Specifically, the district court found
that appellant’s vehicle veered over the lane of traffic “numerous times,” and, at the
beginning of the squad video, drove her vehicle “very substantially into the fog or
shoulder lane,” with the wheel “well over that line.” The district court credited the
trooper’s testimony that appellant committed a traffic violation by swerving over the
lanes of traffic, and “[d]eference must be given to the district court’s credibility
determinations.” State v. Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012). The district
court’s factual findings are supported by the record and it did not err in concluding that
there was reasonable, articulable suspicion of criminal activity sufficient to justify the
stop of appellant’s vehicle.
II.
Appellant argues that she did not consent to a breath test. The United States and
Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const.
amend. IV; Minn. Const. art. I, § 10. As a general rule, taking a sample of a person’s
blood, breath, or urine constitutes a search under the Fourth Amendment and requires a
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warrant, unless an exception applies. Ellingson v. Comm’r of Pub. Safety, 800 N.W.2d
805, 807 (Minn. App. 2011) (citing Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602,
616-17, 109 S. Ct. 1402, 1413 (1989)), review denied (Minn. Aug. 24, 2011). Consent is
an established exception to the warrant requirement. State v. Brooks, 838 N.W.2d 563,
568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).
In order for the consent exception to apply, the state “must show by a
preponderance of the evidence that the defendant freely and voluntarily consented.” Id.
at 568. Whether consent is voluntary must be determined on a case-by-case basis,
examining the totality of the circumstances. State v. Lemert, 843 N.W.2d 227, 233
(Minn. 2014). This analysis includes “the nature of the encounter, the kind of person the
defendant is, and what was said and how it was said.” Brooks, 838 N.W.2d at 569. The
“nature of the encounter” includes such factors as how the police came to suspect a
defendant of driving under the influence, the request to take a chemical test, which
includes whether the implied-consent advisory was read, and whether the defendant had
the right to consult with an attorney. Id.
Given the totality-of-the-circumstances, the district court did not err in concluding
that appellant freely and voluntarily consented to a chemical test. The trooper lawfully
placed appellant under arrest for suspicion of driving while intoxicated and read her the
implied-consent advisory. The wording of the advisory is compelled by statute as set
forth in Minnesota Statute section 169A.51, subdivision 2 (2012). Under Minnesota’s
implied-consent law, anyone who drives a motor vehicle in the state consents to a
chemical test for the purpose of determining the presence of alcohol when certain
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conditions are met. Minn. Stat. § 169A.51, subd. 1(a) (2012); Brooks, 838 N.W.2d at
569. A police officer may require someone to submit to a test when the officer “has
probable cause to believe the person committed the offense of driving while impaired and
the person has been lawfully arrested for driving while impaired.” Brooks, 838 N.W.2d
at 569. As part of the advisory, appellant was told both that Minnesota law requires the
person to take a test and that refusing to submit to the test is a crime. Minn. Stat.
§ 169A.51, subd. 2(1)-(2). Here, there is no evidence to suggest that appellant’s consent
“was coerced in the sense that [her] will had been overborne and [her] capacity for self-
determination critically impaired.” Brooks, 838 N.W.2d at 571. The state has met its
burden of demonstrating that appellant freely and voluntarily consented to chemical
testing, and the district court did not err in denying appellant’s motion to suppress.
Appellant contends that she was unable to consult with an attorney prior to the
breath test. The Minnesota Supreme Court has articulated that under the right-to-counsel
clause in article I, section 6 of the Minnesota Constitution, “an individual has the right,
upon request, to a reasonable opportunity to obtain legal advice before deciding whether
to submit to chemical testing.” Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828,
835 (Minn. 1991). However, due to the “evanescent nature” of the evidence in DWI
cases, the accused is only entitled to a limited amount of time within which to contact an
attorney. Id. “An individual’s right to counsel is considered vindicated when [she] is
provided with a telephone prior to testing and given a reasonable amount of time within
which to contact and consult with an attorney.” Nelson v. Comm’r of Pub. Safety, 779
N.W.2d 571, 574 (Minn. App. 2010).
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The facts demonstrate that the trooper offered appellant the opportunity to consult
with an attorney and provided her with telephone directories and her own cell phone.
Appellant made numerous phone calls and spoke with her mother, but did not contact an
attorney. Appellant stopped making telephone calls and indicated to the trooper that she
was finished. Appellant was properly advised of her right to counsel and given a
reasonable amount of time within which to consult with an attorney. The fact that
appellant was unsuccessful in contacting an attorney does not give rise to the conclusion
that she was coerced into giving her consent. See Eveslage v. Comm’r of Pub. Safety,
353 N.W.2d 623, 627 (Minn. App. 1984) (holding that the right to counsel is vindicated
when the accused cannot locate her own attorney and there are no other attorneys the
accused wishes to call).
Appellant also argues that she was not afforded enough privacy to contact an
attorney because she made the telephone calls from the trooper’s squad car. In State
Dep’t of Pub. Safety v. Held, the Minnesota Supreme Court addressed the question of
whether a police officer must provide an impaired-driver with a private room from which
to contact an attorney. 311 Minn. 74, 75-76, 246 N.W.2d 863, 864 (1976). Recognizing
that police departments may not have rooms “suitable for such use,” and that “potential
security problems” could arise, the Held court declined to impose such a requirement. Id.
at 76, 246 N.W.2d at 864; see also Shovein v. Comm’r of Pub. Safety, 357 N.W.2d 386,
388 (Minn. App. 1984) (stating that the degree of privacy depends on security of
available facilities); Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn.
1992) (“[P]olice do not have to provide a DWI arrestee with a private telephone because
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the arrestee’s rights will be sufficiently protected by the subsequent exclusion of any
overheard statements or any fruits of those statements.”).
Lastly, appellant attempts to distinguish Brooks by claiming that she is
inexperienced with impaired-driving arrests and has had no prior experience with the
implied-consent process. We are not persuaded by this argument. A totality-of-the-
circumstances analysis includes consideration of “the kind of person the defendant is.”
Brooks, 838 N.W.2d at 569. In this case, appellant asserts that she has no prior history of
DWI arrests and is unfamiliar with testing procedures. Even if appellant can demonstrate
that this factor weighs in her favor, it is not enough, standing alone, to support a
conclusion that she was coerced. When viewed as a whole, the circumstances support the
district court’s conclusion that appellant’s consent to submit to chemical testing was
freely and voluntarily given.
Affirmed.
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State of Minnesota v. Amanda Sue Thorne
Combined Opinion