State of Minnesota, Respondent, vs. Rebecca Helen Charlson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1804

State of Minnesota,

Respondent,

vs.

Rebecca Helen Charlson,

Appellant.

Filed August 10, 2004

Affirmed

Randall, Judge

Mower County District Court

File No. K1-02-1323

Mike Hatch, Minnesota Attorney General, John B. Galus, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101 and

Patrick Flanagan, Mower County Attorney, Mower County Attorney's Office, 201 First Street NE, Austin, MN  55912 (for respondent)

James McGeeney, 18 Third Street SW, Suite 303, Rochester, MN  55902 (for appellant)

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

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from a conviction of fifth-degree controlled-substance crime, appellant argues that police officers who stopped her for a traffic violation (driving without headlights), then saw that her eyes were dilated, that she had marks consistent with intravenous drug use, and then received information that appellant had tangential connection to another drug offense did not have requisite articulable suspicion to prolong the stop beyond its original scope or to conduct a drug sniff around the exterior of appellant's vehicle.  We affirm.

FACTS

On August 30, 2002, at approximately 11:30 p.m., appellant Rebecca Charlson was driving southbound on Fourth Street in Austin.  Austin police officers Morgan and Phan, and Phan's drug-detecting canine partner, were on patrol duty in a squad car driving northbound on Fourth Street.  Officer Phan noticed appellant's vehicle proceeding in the opposite direction with the headlights off.  Officer Phan subsequently turned around and stopped appellant's vehicle for a traffic violation.

            Officer Phan approached the driver's side window of appellant's car and informed appellant that she had been driving without headlights and requested proof of insurance.  Appellant responded that she knew the headlights were off and that she was trying to make it home quickly before her alternator failed.  While speaking with appellant, Officer Phan observed that appellant's eyes were dilated and that she had what appeared to be indications of intravenous drug use on her left arm.

            Officers Phan and Morgan returned to their squad car and proceeded to call in a driver's license check.  Officer Jeff McCormack overheard the call on the police radio and recognized appellant's name from an incident that occurred approximately nine weeks earlier.  The incident involved a citizen who had found a purse on the street and turned it over to the Law Enforcement Center.  The purse contained a Minnesota driver's license, a carbon-copy temporary driver's license, and a Minnesota Health Care card belonging to appellant.  Additionally, .4 grams of methamphetamine and other drug paraphernalia were found in the purse. 

            Upon hearing appellant's name, Officer McCormack arrived at the scene and informed Officer Phan that appellant was linked to illegal narcotic activity.  As the officers returned to the car, appellant was anxiously going through a light-blue purse. The officers observed that appellant appeared to be nervous, and Officer Phan asked the appellant to leave the purse alone.  Appellant placed the purse next to her side and informed the officers that the purse did not belong to her.

Based upon Officer Phan's observations and the knowledge obtained from Officer McCormack, a "dog drug sniff" search was performed around the exterior of appellant's vehicle.  The dog "indicated" that drugs may have come into contact with the driver's side and passenger's side door handles.  A search of the vehicle was then conducted, and 2.3 grams of methamphetamine and other drug paraphernalia were found in the purse.  Appellant was arrested and taken to the Law Enforcement Center. 

As appellant exited the squad car at the Law Enforcement Center, Officer McCormack observed the marks on the appellant's left arm that had been observed by Officer Phan at the scene of the stop.  Officer McCormack asked appellant about the marks on her arm, and appellant stated that she had used methamphetamine recently.  Appellant consented to a blood test.  Laura Hinderaker performed the blood test at Austin Medical Center. 

On September 3, 2002 appellant was charged by complaint with third-degree controlled-substance crime, fourth-degree controlled-substance crime, driving while under the influence of a controlled substance, possession of drug paraphernalia, and driving an uninsured motor vehicle.  Appellant moved to dismiss the complaint and to suppress the evidence seized as a result of the search and seizure.  An omnibus hearing was conducted on November 7, 2002.  At the hearing, Hinderaker testified that she drew blood from appellant's left arm and that to the best of her recollection she did not observe a fresh injury on the left arm.  Hinderaker, however, also testified that when she prepared to draw the blood, appellant's arm was ready to go with the tourniquet and that she only looked at the vein.  Appellant admitted at the omnibus hearing that she had a rather pronounced intravenous drug-use mark on her right arm at the time of the stop, but denied that she had any fresh intravenous drug marks on her left arm.

An omnibus order was filed on December 19, 2002, denying appellant's motions to suppress and dismiss.  The state then agreed to amend the complaint to charge a single count of fifth-degree controlled-substance crime, and appellant agreed to waive her right to a jury trial and agreed to be tried by the court on a stipulated record.  Appellant was found guilty, and the court stayed imposition of sentence for a period of up to five years and placed appellant on probation.  This appeal followed.

D E C I S I O N

            In reviewing a district court's determinations of the legality of an investigatory stop, this court reviews questions of reasonable suspicion de novo.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  In doing so, findings of fact are reviewed under the clearly erroneous standard.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

1.         Continued detention

Appellant argues that her continued detention was not supported by the requisite reasonable articulable suspicion necessary to extend the traffic stop beyond its original scope.  An investigative stop is valid if there are particularized and objective facts for suspecting the person stopped of criminal activity.  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (citing State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999)).  The investigative stop needs to be temporary and cannot last longer than is necessary to achieve the purpose of the stop.  Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983).  The scope of the stop needs to be strictly tied to and justified by the circumstances that permitted the initiation of the investigation.  Wiegand, 645 N.W.2d at 135.  When an officer witnesses a traffic violation, however insignificant, an objective basis for stopping the vehicle ordinarily exists, State v. George, 557 N.W.2d 575, 578 (Minn. 1997), but law enforcement may only expand the scope of the stop to investigate other suspected illegal activity when there exists reasonable, articulable suspicion.  Wiegand, 645 N.W.2d at 135.

            Here, appellant argues there are three distinct levels of suspicion with respect to her arrest; (1) the stop, (2) her continued detention, and (3) the dog sniff.  Appellant asserts that each level of suspicion is higher than the other, and the state has an ascending burden at each level to show a valid arrest.  With respect to the first level, appellant concedes this is a fairly low bar and that the bar for the initial stop was met here.  Appellant was stopped at about 11:30 p.m. for driving without her headlights on.  We agree the officers had a particularized and objective basis for stopping appellant. 

While conceding that the initial traffic stop was permissible, appellant argues that the continued detention beyond the scope of the stop was not supported by any more requisite articulable suspicion.  Appellant points out that there is a higher threshold for the state to meet if they want to detain a stopped driver and continue the search for reasons over and above the initial stop.  We agree.  Law enforcement needs more than a headlight out to detain a driver past the time that it takes to give him a citation or a "fix-it ticket" for the headlight and to continue to search for criminal activity unrelated to the headlight.  The officers must have a heightened articulable suspicion of criminal activity to justify the continued detention.  Wiegand, 645 N.W.2d at 135.

The officers in this case expanded the scope of the stop based on a belief that appellant was linked to illegal narcotic activity.  This belief was based on the fact that (1) appellant's eyes were dilated; (2) appellant had fresh marks on her arm that resembled marks caused by intravenous drug use;  (3) appellant was nervous and making furtive movements into her purse; and (4) the officers had knowledge that methamphetamine and other drug paraphernalia had been found in another purse belonging to appellant nine weeks earlier.

Appellant argues that these facts are insufficient to satisfy the higher threshold because the factors that the officers based their suspicion on are easily explainable and together do not amount to a reasonable suspicion.  Appellant asserts that the fact that her eyes were dilated could easily be attributed to the time of the stop.  Appellant also points out that the nurse who performed the blood test after appellant's arrest did not observe any track marks, nor did Officer Phan testify at the omnibus hearing as to what expertise led him to conclude that the marks were consistent with intravenous drug use.  Appellant further asserts that her nervous behavior, when combined with the stale information regarding her alleged prior involvement with methamphetamine, does not amount to reasonable, articulable suspicion. 

We agree that some of the factors on which the officers based their suspicion could easily be innocently explained.  Nevertheless, an officer, in arriving at a reasonable, articulable suspicion of criminal activity, may make inferences and deductions that might elude an untrained person.  State v. Syhavong, 661 N.W.2d 278, 282 (Minn. App. 2003).  Although other valid explanations may have existed for appellant's condition and behavior, the test is whether there is reasonable, articulable suspicion under the totality of the circumstances.  Id. at 281.

Here, the totality of the circumstances shows that the officers expanded the scope of the stop based on the fact that (1) appellant's eyes were dilated; (2) appellant had fresh marks on her arms that resembled marks caused by intravenous drug use; (3) appellant was nervous and making furtive movements into her purse; and (4) the officers had knowledge that methamphetamine and other drug paraphernalia had been found in another purse belonging to appellant.  The officers relied not only on subjective observations, but also on objective evidence from an informant, Officer McCormack.  Officer McCormack had knowledge that a purse containing appellant's identification and methamphetamine had been turned in at the Law Enforcement Center.  When Officer McCormack conveyed this information to Officer Phan, Officer McCormack was acting as an informant.  See Yorway v. Comm'r of Pub. Safety, 669 N.W.2d 622, 626 (Minn. App. 2003) (stating that a reliable informant's factually specific report provides an officer with the requisite reasonable, articulable suspicion of illegal activity to justify a stop).  Officer McCormack's information constituted a factually specific report.  All of these facts, when taken together, provided the officers with the heightened suspicion of criminal activity to justify detaining appellant beyond the scope of the original stop.

2.         Dog drug sniff

Appellant argues that even if her detention beyond the initial stop was valid, the dog sniff around the exterior of her vehicle was not justified because a dog sniff requires yet a third, higher level of suspicion than is required to detain her beyond her initial stop.  We disagree.  We see only two levels, with the second level consisting of two prongs:  (1) heightened articulable suspicion for any crime, which would justify continuing the detention; and (2) heightened suspicion of drug-related criminal activity that allows the use of a drug-sniffing dog.  Bringing in a drug-sniffing dog requires more articulable suspicion than a broken headlight; there must be drug-related articulable suspicion.  But there remains only two levels, not three.

      Appellant contends that the evidence does not support an articulable suspicion of drug-related activity in light of the fact there is no testimony that the officers suspected appellant of being under the influence.  In so arguing, appellant relies on Wiegand, where the court found no reasonable articulable suspicion for a dog sniff where the officer testified he did not suspect appellants were under the influence of anything, or have any indication that they were transporting drugs.  645 N.W.2d at 136-37.  Our facts are not Wiegand facts.  A dog sniff is permissible as long as the officers have a reasonable, articulable suspicion of drug-related criminal activity.  Id.  Drug-related criminal activity includes not only being under the influence of illegal drugs, but also possession and transportation of illegal drugs.  See id. at 136.  Personal knowledge of this defendant, the defendant's appearance, and the defendant's actions with her purse, coupled with the officer's training and experience, were enough for him to draw inferences and make deductions, and the totality of the circumstances justifies the exterior search of appellant's car by a dog.  See State v. Munoz, 385 N.W.2d 373, 376 (Minn. App. 1986).

      Here, appellant's dilated eyes, the marks consistent with intravenous drug use, the nervous behavior, the feverish digging in the purse, and knowledge that just nine weeks prior appellant was involved with illegal drug activity, when taken all together, got the police to the requisite second threshold.  We do observe that the police "did not hurdle the threshold with yards to spare."  This case is close, but there is enough in the record to sustain the trial court's conclusion that the stop, the detention, and the dog sniff were valid.

            Affirmed.