State of Minnesota, Respondent, vs. Lorenzo C. Lockett, Appellant.

State of Minnesota, Respondent, vs. Lorenzo C. Lockett, Appellant. A05-1214, Court of Appeals Unpublished, July 18, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1214

 

State of Minnesota,
Respondent,
 
vs.
 
Lorenzo C. Lockett,
Appellant.

 

Filed July 18, 2006

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 05004376

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Jay Heffern, Minneapolis City Attorney, Paula J. Kruchowski, Assistant City Attorney, Dominick D. Mathews (certified student attorney), 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)

 

Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the district court's determination that the officer had reasonable suspicion to stop appellant's vehicle and probable cause to arrest him for driving while impaired.  Because the officer had reasonable suspicion to stop appellant's vehicle when he learned that the vehicle's license plates had been revoked, and because there were multiple indicia of intoxication supporting a finding of probable cause for an arrest, we affirm.

FACTS

Appellant Lorenzo C. Lockett was convicted after a stipulated-facts bench trial for second-degree driving while impaired (DWI), a violation of Minn. Stat. § 169 A. 20, subd. 1 (2004), and failure to submit to a chemical test, a violation of Minn. Stat. § 169 A. 20, subd. 2 (2004).  The district court conducted the stipulated-facts trial after a Rasmussen hearing on appellant's motion to suppress evidence of the DWI stop and arrest.  The district court denied the motion, finding that reasonable suspicion supported the stop and probable cause supported the arrest.  Lockett appeals both determinations.

            In the early morning hours of January 22, 2005, it was snowing and traffic was moving slowly.  State Trooper Brian Bammert was on routine patrol when he observed an SUV driving southbound on Interstate 35W near downtown Minneapolis.  Bammert decided to run a license plate check on the vehicle, which state troopers are encouraged to do while on patrol.  However, the final digit on the license plate was almost entirely obstructed by accumulating snow.  Given what Bammert could see of the obstructed final digit, he ran combinations of numbers that could have corresponded to the license plate.

            The first two combinations of numbers yielded registration information that did not correspond to the vehicle that Bammert was trailing.  But the third combination provided information about a black SUV that matched the make, model and year of the SUV that Bammert was following.  The registration information revealed that the license plates for the SUV had been revoked.  When the SUV exited the interstate, Bammert followed and stopped it on a side street.

            Upon stopping the SUV, Bammert asked the driver, later identified as Lockett, to produce his driver's license.  Lockett admitted that he did not have a valid driver's license.  Bammert noticed a strong smell of alcohol coming from the passenger compartment of the vehicle.  He requested that Lockett step out of the vehicle to determine whether Lockett smelled of alcohol.  Lockett produced a Minnesota ID card, and as Bammert engaged Lockett in a conversation, Bammert detected a moderate smell of alcohol on Lockett's breath and noticed that his eyes were watery.  Lockett admitted to having a couple of drinks before getting behind the wheel.

            Bammert decided to conduct a horizontal gaze nystagmus (HGN) field-sobriety test.  Because of the snow accumulation and the proximity of the traffic lane, Bammert determined that conducting a walking test or balance test would not be appropriate.  Bammert noticed that instead of a smooth response, Lockett's eyes involuntarily jerked while trying to follow the stimulus.  But Bammert also testified that Lockett's speech was not slurred and his pupils were not dilated.

            After completing the HGN test, Bammert placed Lockett in the back seat of the squad car; Bammert conceded that at this point Lockett was legally under arrest.  Bammert ran Lockett's driving record and found that his license was suspended, and that he had two prior alcohol-related driving offenses within the past ten years.  When Lockett refused to supply a breath sample, Bammert notified Lockett that he was under arrest for DWI.

D E C I S I O N

I.

 

The first issue is whether the district court erred in determining that reasonable, articulable suspicion supported the stop of Lockett's vehicle.  It is well settled that "[a] brief investigatory stop requires only reasonable suspicion of criminal activity, rather than probable cause."  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968)).  We review questions of reasonable suspicion de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  The district court's findings of fact are reviewed for clear error.  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998). 

            An investigatory stop is valid if the officer "had a ‘particularized and objective basis for suspecting the particular persons stopped of criminal activity.'"  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).  An objective basis exists so long as "the stop was not the product of mere whim, caprice or idle curiosity."   Pike, 551 N.W.2d at 921; see also State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004) (stating that any violation of a traffic law, no matter how minor, "forms the requisite particularized and objective basis for conducting a traffic stop").  Therefore, only a "minimal" factual basis is required for a routine traffic check.  State v. Baumann, 616 N.W.2d 771, 774 (Minn. App. 2000) (quotation omitted), review denied (Minn. Nov. 15, 2000).

            Here, Bammert executed an electronic search of the vehicle's license plate and registration, which he conducted without any intrusion on Lockett's freedom of movement.  The results of that search disclosed that the plates were suspended for an insurance violation.  This is the kind of minimal factual basis that provides reasonable suspicion to conduct an investigatory stop of a vehicle.  See Pike, 551 N.W.2d at 922 (holding that where the officer knows that the owner of the vehicle in question has a revoked license, there is reasonable suspicion to make the investigatory stop).  Moreover, the plate violation demonstrates that the stop was not the product of "whim, caprice or idle curiosity."  Id. at 921.  The district court specifically relied upon this violation as providing the basis to stop the vehicle, and discounted other possible justifications, such as the snow-obstructed license plate.[1] The district court did not err in finding that the stop was supported by reasonable suspicion.

II.

The second issue is whether the district court erred in determining that Bammert had probable cause to arrest Lockett for driving while impaired (DWI).  A determination of probable cause is a mixed question of fact and of law.  Johnson v. Comm'r of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985).  "Once the facts have been found the court must apply the law to determine if probable cause exists."  Id. (quotation omitted).  The court will pay deference to the officer's experience, Musgjerd, 384 N.W.2d at 573, and where the determination of probable cause is a close call, a reviewing court should defer to the district court's evaluation of an officer's testimony, Comm'r of Pub. Safety v. Shewchuk, 412 N.W.2d 434, 436 (Minn. App. 1987).  The probable cause inquiry is objective, not subjective.  State v. Laducer, 676 N.W.2d 693, 697 (Minn. App. 2004).

            There are many indicia of intoxication that may provide probable cause for an arrest, whether they appear independently or in combination.  Musgjerd, 384 N.W.2d at 573.  The presence of a single indicia is sufficient, depending on the circumstances of a particular case, but mere suspicion of intoxication is insufficient.  Id. at 573-74; see State v. Camp, 590 N.W.2d 115, 119 n.9 (Minn. 1999) (noting that probable cause may not rest on mere suspicion, but does not require evidence sufficient to sustain a conviction).    

            While an officer is not required to conduct field sobriety tests, the tests may further expose indicia of intoxication and may be considered by the court.  See Shewchuk, 412 N.W.2d at 436-37.  The Minnesota Supreme Court has approved the use of the horizontal gaze nystagmus (HGN) test[2] as an appropriate field sobriety test.  State v. Klawitter, 518 N.W.2d 577, 585 (Minn. 1994).  The officer who administers the HGN test may testify to its results, so long as that officer has had sufficient training to establish foundation for the officer's opinion.  Id.

            Here, the district court considered the following facts to find that probable cause supported Bammert's arrest of Lockett: (1) the odor of alcohol on Lockett's breath; (2) Lockett's admission that he had a couple of drinks before driving; (3) Lockett's watery eyes; and (4) the results of the HGN test.  In State v. Driscoll, this court found probable cause to arrest where the officer noted six indicia of intoxication, including odor of alcohol, watery eyes, and inability to perform the HGN test.  427 N.W.2d 263, 265 (Minn. App. 1988).  Also, in Poppenhagen v. Comm'r of Pub. Safety, this court found that probable cause supported an arrest where the appellant was involved in a single-vehicle accident, smelled of alcohol, and appellant's mother informed officer that appellant drank a couple of beers prior to the accident.  400 N.W.2d 799, 801-02 (Minn. App. 1987).  Here, there were multiple indicia of intoxication, each supported by the record and Bammert's testimony, that taken together provide probable cause for an arrest.  See Camp, 590 N.W.2d at 119 n.9 (noting probable cause requires less evidence than that needed for a conviction); Musgjerd, 384 N.W.2d at 573 (stating that single indicia of intoxication may be sufficient for probable cause).  The district court did not err when it determined that Lockett's arrest was supported by probable cause.

            Affirmed.

[1]Lockett's defense counsel argued that Bammert did not have enough time to actually run all the plate numbers in the time between first spotting Lockett's SUV and stopping the vehicle.  Rather, the defense argued, Bammert did not run the plate and find the violation until after he stopped the vehicle, therefore destroying reasonable suspicion for the stop.  The district court, finding Bammert's testimony credible, determined that Bammert had sufficient time to run the numbers and find the plate revocation before stopping the SUV.  The fact-finder makes credibility determinations, which this court is reluctant to reverse.  See State v. Moot, 398 N.W.2d 21, 23 (Minn. App. 1986) ("The trial court acts as factfinder in weighing the credibility of the witnesses."), review denied (Minn. Feb. 13, 1987).

[2] A trained officer uses the HGN test to determine whether there is an involuntary jerking of the eyes when a stimulus, such as a pen, is moved back and forth in front of the driver's eyes.