State of Minnesota, Respondent, vs. Adam Richard Bastman, Appellant.

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-97-1934

State of Minnesota,
Respondent,

vs.

Adam Richard Bastman,
Appellant.

Filed August 4, 1998
Affirmed
Randall, Judge

Nobles County District Court
File No. K5-97-234

Hubert H. Humphrey III, Attorney General, Nancy J. Bode, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Kenneth J. Kohler, Nobles County Attorney, P.O. Box 607, Worthington, MN 56187 (for respondent)

John M. Stuart, State Public Defender, Lyonel F. Norris, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant, who was convicted of driving while under the influence, challenges the district court's decision that the stop of appellant's vehicle was reasonable under the circumstances. We affirm.

FACTS\

A Nobles County Deputy Sheriff arrested appellant Adam Richard Bastman for driving under the influence of alcohol at approximately 1:45 a.m. on May 28, 1997. The deputy followed Bastman's van for approximately five miles and observed the van weave between the lines. The deputy testified that he observed the van cross over the center line two or three times, and twice drive onto the shoulder. After stopping Bastman's van, the deputy noted that Bastman smelled strongly of alcohol, had bloodshot and watery eyes, and had slurred speech. Bastman told the deputy that it was difficult to drive the van because it was windy. Although it is not in his written report, the deputy testified at the omnibus hearing that Bastman failed the finger-to-nose sobriety test. Bastman was arrested and consented to an Intoxilizer test. The test indicated that Bastman's alcohol concentration was .18.

Bastman was charged with three counts of gross misdemeanor driving while under the influence of alcohol. After a contested omnibus hearing, the district court denied Bastman's motion to dismiss for lack of probable cause.

Bastman filed a petition to enter a plea pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), which allows a defendant to plead guilty but preserves the right to appeal pretrial decisions. Bastman did not plead guilty, however. Instead, he asked the district court to decide his guilt. The case was submitted to the district court on stipulated facts, the court found Bastman guilty of gross misdemeanor driving with an alcohol concentration of .10 or more in violation of Minn. Stat. § 169.121, subds. 1(e), 3(c)(1) (1996), and all other charges were dropped.

Bastman received a stayed sentence and, as a condition of that stay, was ordered to complete one year of probation, serve 30 days in the county jail, pay fees and fines, and undergo an alcohol assessment. These conditions were stayed pending appeal.

D E C I S I O N

I. Waiver

The state asserts that at the omnibus hearing Bastman did not raise the issue of whether the deputy had a reasonable basis to stop Bastman's vehicle and that, therefore, this court should not address the issue. The state insists that the only issue presented at the omnibus hearing was probable cause for arrest.

This court generally refuses to address issues that are raised for the first time on appeal and not addressed by the district court "even if the issues involve constitutional questions regarding criminal procedure." State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). It is within an appellate court's discretion, however, to address "such issues when the interests of justice require their consideration and addressing them would not work an unfair surprise on a party." Id.

Here, the issue of the reasonableness of the stop was not raised at the omnibus hearing. But, in the Plea and Sentencing Order, the district court made the following finding:

The Nobles County Deputy Sheriff had a reasonable basis to stop the vehicle [Bastman] was driving when he observed [Bastman's] vehicle moving back and forth between the fog line and center line, crossing the center line several times, and then driving onto the gravel shoulder of the road.

If Bastman had simply pleaded guilty pursuant to a Lothenbach plea, he would have reserved the right to appeal only pretrial decisions. See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980) (permitting conditional guilty plea, which reserved right to appeal pretrial decisions). Here, however, Bastman asked the court to determine his guilt. In so doing, the court also made the finding that the stop was reasonable. Thus, Bastman properly raised the reasonableness of the stop issue on appeal from his conviction.

II. Merits - Articulable Suspicion

Bastman argues that the deputy did not have a reasonable basis for stopping Bastman's vehicle because the windy conditions caused his vehicle to weave. Thus, he argues, his conviction should be reversed, the case should be remanded, and the fruits of the impermissible search should be suppressed.

The validity of a stop is a legal determination based on given facts. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). A limited investigative stop by an officer is lawful if the prosecution proves the officer "had a 'particularized and objective basis for suspecting the particular person stopped of criminal activity.'" State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). A brief investigatory stop does not require probable cause, "only reasonable suspicion of criminal activity." Id. It is not necessary for a traffic or vehicle violation to be detected. Id. The stop cannot be based, however, on "mere whim, caprice or idle curiosity," but must be based on "'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" Id. at 921-22 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).

Appellant compares his case with Warrick v. Commissioner of Pub. Safety, 374 N.W.2d 585 (Minn. App. 1985). In Warrick, a police officer stopped a vehicle after following it for five miles and observing the vehicle weaving within its lane. Id. at 585. The officer described the weaving "as 'subtle' and involving inches; it did not cross over either the fog line or the center line." Id. The officer also observed that the vehicle's "speed varied from 40 to under 50 m.p.h., although it was generally within the 40 to 45 m.p.h. range." Id. at 585-86. Further, at the time of the stop "[t]he weather was cold and windy, and the visibility was impaired." Id. at 586. The driver was arrested for driving while intoxicated, and her license was revoked. Id. In affirming the district court's rescission of the driver's license revocation, this court stated that in light of the weather conditions, "it [was] apparent that the officer did not have sufficient articulable facts to make the brief investigatory stop." Id.

In Shull v. Commissioner of Pub. Safety, this court concluded that where an officer observed a vehicle traveling slower than necessary for the conditions and weaving back and forth across the center line, a stop was justified even though the road was snowpacked and icy. Shull v. Commissioner of Pub. Safety, 398 N.W.2d 11, 14 (Minn. App. 1986). This court stated:

The fact that another inference might have been drawn, that Shull was driving properly for the conditions, does not negate the fact that * * * a trained officer[] observed objective facts which made him suspect Shull of criminal driving."

Id.

Here, Bastman stipulated to the fact that he crossed the center line several times and drove onto the shoulder of the road. This is far different from Warrick where the car weaved only "subtle[ly]" within the lane and where the weather impaired visibility. As in Shull, Bastman weaved outside his lane of traffic, and, similar to Shull, just because another reason (other than intoxication) "could have caused" this weaving, the reasonableness of the stop is not negated. There are specific, articulable facts that support the deputy's decision to make an investigatory stop of Bastman's vehicle. The stop was reasonable under the circumstances.

Affirmed.