This opinion will be unpublished and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
A15-1297
Shannon Forstrom Walsh, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed May 23, 2016
Affirmed
Reyes, Judge
Dakota County District Court
File No. 19AVCV15373
Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)
Lori Swanson, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Tracy Smith,
Judge.
UNPUBLISHED OPINION
REYES, Judge
On appeal from an order sustaining her license revocation, appellant argues that
(1) her procedural due-process rights were violated; (2) the officer lacked reasonable,
articulable suspicion for the initial investigatory seizure of her person; (3) the field
sobriety tests and preliminary breath test (PBT) were unlawfully obtained; (4) the breath
test was obtained in violation of the Fourth Amendment; and (5) the breath test was
obtained in violation of her substantive due-process rights and the doctrine of
unconstitutional conditions. We affirm.
FACTS
At 3:15 p.m. on January 30, 2015, Deputy Ryan Googins heard over his police
radio that someone had called in a driving complaint. The caller identified himself and
reported that he had seen a female in a vehicle at a Kwik Trip consuming what looked
like small, airline-sized bottles of alcohol. The caller stated that when he made eye
contact with the driver, she became nervous and drove away. The caller noted the
vehicle’s license-plate number, provided it to the police, and stated that he last saw the
vehicle traveling south on Highway 3 from the Kwik Trip.
Upon hearing this information, Deputy Googins ran the license plate and obtained
the vehicle’s make, model, and registered address. Deputy Googins provided his partner,
Deputy Brian Eells, this information over the radio, and the two men headed separately to
the registered address. Deputy Eells arrived first and saw a vehicle parked in the
driveway. Before parking, he circled the block and, by the time he returned, the vehicle
was gone. Deputy Eells radioed Deputy Googins with this update. The officers agreed
that Deputy Eells would attempt to make contact with someone at the property, while
Deputy Googins would attempt to locate the suspect vehicle.
Deputy Googins spotted the vehicle and saw it turn into the Dakota County
Library parking lot and park in an available space. Deputy Googins pulled into the
parking lot, activated his lights, and parked behind the vehicle. As Deputy Googins
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approached appellant Shannon Forstrom Walsh, she was eating crackers and exiting her
vehicle. Deputy Googins noticed an overwhelming odor of alcohol coming from the
vehicle. When Deputy Googins asked appellant about the odor, she replied that she had
not been drinking and suggested that the smell was coming from the crackers. Deputy
Googins also noticed that appellant’s eyes were watery and bloodshot.
Deputy Googins asked appellant to step out of the vehicle and take a series of
tests. Appellant performed the horizontal-gaze nystagmus, walk-and-turn, and one-leg-
stand tests and exhibited indicia of intoxication on all three tests, though the indicia of
intoxication were subtle on the one-leg-stand test. Deputy Googins administered a PBT
and placed appellant under arrest for driving while impaired (DWI). Deputy Googins
read appellant the implied-consent advisory. Appellant declined to consult with an
attorney. Deputy Googins offered appellant a breath test, and appellant agreed to take it.
The test indicated that appellant’s alcohol concentration was 0.12.
Respondent commissioner of public safety revoked appellant’s driver’s license.
Appellant requested an implied-consent hearing. Following the hearing, the district court
issued an order sustaining appellant’s license revocation.1 This appeal follows.
DECISION
I. Appellant’s procedural due-process rights were not violated.
Appellant first argues that respondent’s act of noting a “conviction” on her driving
record before she was convicted in the related criminal proceedings and before she had
1
Appellant pleaded not guilty to fourth-degree DWI and the criminal case is ongoing.
3
any opportunity for judicial review in the implied-consent proceedings unconstitutionally
deprived her of procedural due process. We disagree.
We review procedural due-process challenges de novo. Bendorf v. Comm’r of
Pub. Safety, 727 N.W.2d 410, 413 (Minn. 2007). But while appellant has characterized
her argument as a procedural due-process challenge, she is not alleging that she was
deprived of any liberty or property interest without proper procedural due process.
Rather, she is alleging that the license-revocation process resulted in a premature or
erroneous designation on her driving record. Cf. id. at 415–16 (considering whether
failure to comply with 60-day hearing requirement was a procedural due-process
violation); Williams v. Comm’r of Pub. Safety, 830 N.W.2d 442 (Minn. App. 2013)
(discussing whether drivers receiving six days’ notice of revocation, not seven, violated
the drivers’ procedural due-process rights), review denied (Minn. July 16, 2013). We
therefore decline to address appellant’s purported procedural due-process challenge.
II. Deputy Googins had reasonable, articulable suspicion to seize appellant.
Appellant next argues that Deputy Googins’s investigatory seizure of appellant
was not supported by a reasonable, articulable suspicion of criminal activity. We are not
persuaded.
The Fourth Amendment of the United States Constitution guarantees the “right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “The brief
seizure of a person for investigatory purposes is not unreasonable if an officer has a
particular and objective basis for suspecting the particular person [seized] of criminal
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activity.” State v. Harris, 590 N.W.2d 90, 99 (Minn. 1999) (alteration in original)
(quotation omitted). A reasonable, articulable suspicion exists if, “in justifying the
particular intrusion the police officer [is] able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). The reasonable-
suspicion standard is not high, but the suspicion must be “something more than an
unarticulated hunch,” State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007) (quotation
omitted), and more than an “inchoate and unparticularized suspicion,” State v.
Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation omitted). We review de novo
the district court’s legal determination that Deputy Googins had reasonable, articulable
suspicion for the seizure. Wilkes v. Comm’r of Pub. Safety, 777 N.W.2d 239, 242-43
(Minn. App. 2010). We review findings of fact for clear error. Id. at 243.
The district court correctly determined that Deputy Googins had reasonable,
articulable suspicion for the investigatory seizure of appellant. Deputy Googins received
a tip, from an identified individual, suggesting that appellant was consuming alcohol in
her vehicle. Deputy Googins was thus able to point to “specific and articulable facts”
which reasonably warranted an investigation into whether appellant was driving while
impaired. Terry, 392 U.S. at 21, 88 S. Ct. at 1880. And this information did not have to
arise from Deputy Googins’s personal observation. Marben v. State, Dep’t of Pub.
Safety, 294 N.W.2d 697, 699 (Minn. 1980).
Appellant cites Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552 (Minn. 1985), in
support of her argument that the caller provided insufficient specificity to establish the
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reliability of the tip. But in Olson, the tipster was anonymous. Id. at 554. Here, the
caller identified himself. Moreover, in the instant case, the caller provided specific
information to establish the reliability of the tip. The caller reported that he saw appellant
drinking out of small, airplane-sized bottles of alcohol and that appellant appeared
nervous upon making eye contact with the caller. In contrast, in Olson, the anonymous
tipster provided only a “bare assertion of a possibly drunk driver.” Id. at 556. Olson is
therefore inapposite.
Appellant further cites Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329
(1983), and argues that the tip was unreliable because there was no other evidence
corroborating it. Gates, too, is distinguishable. First, Gates also involved an anonymous
tip. Second, the relevant inquiry in Gates was whether the anonymous tip had been
sufficiently corroborated such that it may be considered in support of a probable-cause
inquiry. Id. at 227, 103 S. Ct. at 2326. Here, Deputy Googins needed only reasonable,
articulable suspicion to conduct the investigatory seizure of appellant.
In sum, we conclude that the district court correctly determined that Deputy
Googins had reasonable, articulable suspicion to support the initial investigatory seizure
of appellant.
III. An officer needs only reasonable suspicion of criminal activity to conduct
field sobriety tests and a PBT.
Appellant argues that the field sobriety tests and PBTs are subject to the probable-
cause and warrant requirements of the Fourth Amendment. We disagree.
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Appellant’s position is inconsistent with the applicable caselaw. An officer needs
only reasonable, articulable suspicion of criminal activity to administer field sobriety
tests and a PBT. State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn.
1981); State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (holding that
administration of field sobriety testing based on officer’s observations of odor of alcohol
and Klamar’s bloodshot and watery eyes was reasonable); State v. Vievering, 383 N.W.2d
729, 730 (Minn. App. 1986) (stating that an officer may request a PBT on the basis of
specific and articulable facts), review denied (Minn. May 16, 1986). Appellant’s reliance
on Colorado and Oregon law is thus unpersuasive because it is contrary to binding
Minnesota precedent.
Appellant contends that Juncewski and its progeny are no longer good law in light
of Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013). But appellant misinterprets
McNeely. McNeely stemmed from a warrantless, nonconsensual blood draw that was
unlawfully based on the exigency created by the natural dissipation of alcohol in the
bloodstream. Id. at 1558. Because McNeely addressed only a single-factor exigency
exception to the warrant requirement, it cannot be read to require probable cause prior to
administering field sobriety tests or a PBT.
Finally, appellant asserts that the consent exception to the warrant requirement
was not applicable. Because the field sobriety tests and PBT were not searches under the
Fourth Amendment, no warrant was required. We therefore need not address whether an
exception to the warrant requirement applies.
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IV. The warrantless breath test was constitutional because appellant consented.
Appellant argues that the breath test was an unconstitutional search because
Deputy Googins did not obtain a warrant and because there is no applicable exception to
the warrant requirement. These arguments are without merit.
The United States and Minnesota Constitutions protect individuals from
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A
breath test is considered a search for Fourth Amendment purposes. Mell v. Comm’r of
Pub. Safety, 757 N.W.2d 702, 709 (Minn. App. 2008). “A search conducted without a
warrant is per se unreasonable unless an exception applies.” Ellingson v. Comm’r of Pub.
Safety, 800 N.W.2d 805, 807 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011).
Consent is one exception to the warrant requirement. State v. Brooks, 838 N.W.2d 563,
568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). The state must show by a
preponderance of the evidence that consent was given freely and voluntarily. Id.
Voluntariness is determined by examining the totality of the circumstances. Id. This
includes examining “the nature of the encounter, the kind of person the defendant is, and
what was said and how it was said.” State v. Diede, 795 N.W.2d 836, 853 (Minn. 2011)
(quotation omitted). The question of whether consent was voluntary is a question of fact,
and is reviewed under the clearly erroneous standard. Id. at 846.
The district court concluded that appellant voluntarily consented to the breath test.
Alternatively, the district court concluded that the search was lawful under the search-
incident-to-arrest exception. We agree with the district court but address only the former
justification. In examining the totality of the circumstances, the district court noted that
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Deputy Googins read appellant the implied-consent advisory, appellant was given an
opportunity to consult with an attorney, and appellant agreed to take a chemical test
knowing that she had the option to refuse. In addition, the record contains no indication
that Deputy Googins exhibited force or that his actions were otherwise deceptive,
coercive, or intimidating. Brooks, 838 N.W.2d at 568. The record includes no facts to
suggest that appellant’s will was overborne or that she was not able to freely make a
decision regarding the breath test. Id. Therefore, the district court did not clearly err in
concluding that appellant voluntarily consented to the breath test and that appellant’s
consent provided a valid exception to the warrant requirement.
Appellant argues that, because she was arrested and “threatened” with other
crimes through the implied-consent advisory, her consent was not voluntary. But our
supreme court rejected this argument when it stated that “a driver’s decision to agree to
take a test is not coerced simply because Minnesota has attached the penalty of making it
a crime to refuse the test.” Id. at 570. Although the choice to submit or refuse a breath
test may be a difficult one, the decision is not an act coerced by the officer. Id.
V. Appellant’s substantive due-process rights were not violated and there is no
merit to her unconstitutional conditions argument.
Appellant argues she has a fundamental right to refuse a warrantless breath search,
and as such, Minnesota’s implied-consent law is unconstitutional because it does not
satisfy the strict-scrutiny demands of substantive due process. Appellant further argues
that penalizing test refusal is an unconstitutional condition. We disagree.
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Whether a statute is constitutional is a question of law that is reviewed de novo.
State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013). A statute should be upheld “unless the
challenging party demonstrates that it is unconstitutional beyond a reasonable doubt.” Id.
at 182. Minnesota statutes are presumed constitutional. Stevens v. Comm’r of Pub.
Safety, 850 N.W.2d 717, 722 (Minn. App. 2014).
Appellant’s argument that her substantive due-process rights were violated rests
on the premise that State v. Bernard was wrongly decided by the Minnesota Supreme
Court. 859 N.W.2d 762 (Minn. 2015), cert. granted, 136 S. Ct. 615 (2015). But this
court has no authority to overrule supreme court precedent. See State v. Adkins, 706
N.W.2d 59, 63 (Minn. App. 2005) (noting this court’s role as “an error-correcting
court”). In Bernard, the supreme court held that a warrantless breath test is constitutional
as a search incident to arrest. 859 N.W.2d at 772. The court found that no fundamental
right was implicated by the test-refusal statute because there is no “fundamental right to
refuse a constitutional search.” Id. at 773. Applying rational basis review, the court
upheld the test-refusal statute. Id. at 773-74. Accordingly, appellant’s substantive due-
process argument is foreclosed by Bernard.
Finally, appellant argues that the test-refusal statute violates the unconstitutional-
conditions doctrine. “Minnesota’s implied-consent statute does not violate the
unconstitutional-conditions doctrine by authorizing the commissioner of public safety to
revoke the driver’s license of a person who has been arrested for DWI and has refused to
10
submit to chemical testing.” Stevens, 850 N.W.2d at 731. We therefore reject this
argument.
Affirmed.
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Shannon Forstrom Walsh v. Commissioner of Public Safety
Combined Opinion