Nicole Lynn Jessop, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

Nicole Lynn Jessop, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. A06-1775, Court of Appeals Unpublished Decision, October 16, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1775

 

 

Nicole Lynn Jessop, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed October 16, 2007

Affirmed

Toussaint, Chief Judge

 

Otter Tail County District Court

File No. C5-06-494

 

James H. Leviton, 216K Marsh Run I, 11900 Wayzata Blvd., Minneapolis, MN 55305 (for appellant)

 

Lori Swanson, Attorney General, Melissa J. Eberhart, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134  (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            In this appeal from the district court order sustaining the revocation of appellant Nicole Lynn Jessop's driver's license, appellant argues that (a) the officer's questioning of her while she was a passenger in the stopped vehicle went beyond the scope of the initial stop and was not supported by reasonable suspicion of other criminal activity; and (b) she was under de facto arrest without probable cause when the officer asked her to sit in the back seat of the squad car and then transported her to the police station.  We affirm.

D E C I S I O N

            An appellate court will review undisputed facts to determine whether there is a valid basis for an investigatory seizure as a matter of law.  Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  The same standard applies to a probable cause determination on undisputed facts.  Clow v. Comm'r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).

            An officer may make an investigative stop if there is a particularized basis for suspecting the person of criminal activity.  State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003).  The "investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop."  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (quotation omitted).  Further, "the scope of a stop must be strictly tied to and justified by the circumstances that rendered the initiation of the investigation permissible."  Id.  This doctrine has been applied to the extended questioning of passengers of stopped vehicles.  Fort, 660 N.W.2d at 418-19.  Even where an initial stop was proper, "any expansion of the scope or duration of a traffic stop must be justified by reasonable articulable suspicion of other criminal activity."  Id. at 419.

            Appellant argues that the officer's investigative questioning of her was illegal because it went beyond the scope of the traffic stop for failure to dim high beams and was unsupported by a reasonable, articulable suspicion of any additional crime.  We must examine the largely undisputed facts to resolve this issue as a matter of law.

            While on routine patrol at approximately 12:35 a.m. on Sunday, February 19, 2006, an officer noticed that an occupied and running Ford Focus automobile was parked in a field approach off of the highway.  It appeared that the driver was trying to back up.

            About half an hour later, the officer returned to the scene to see if his assistance was needed because the temperature was 22 degrees below zero.  The officer then saw an SUV in front of him make a legal U-turn as it approached the area where the Ford Focus was still parked.  A person later identified as appellant left the Ford Focus from the driver's door and entered the front passenger side of the SUV.  The SUV then proceeded toward the officer with its high beams on.  The officer turned around and stopped the SUV for failure to dim its high beams.

            The driver, Roberta Salo, said that appellant had called her and asked to be picked up because she was stuck.  While questioning Salo, the officer smelled alcohol coming from the inside of the SUV, and he asked Salo if she had been drinking; she said no.  He asked appellant the same question, and she said that she had been "at the bars."  He then asked appellant if she was intoxicated and she replied that she was, but that she had not been driving; "some guy" whom she did not identify had been driving.  But the officer testified that he had not seen any other traffic or pedestrians on the highway in those early morning hours when it was 22 degrees below zero.

            All the discussion that occurred while appellant was inside the SUV was the product of investigative detention.  The officer's questions were well within the scope of the stop of Salo's vehicle and the stop was of short duration.  Consequently, the officer's questioning of appellant was lawful.

            Next, appellant argues that a de facto arrest occurred when the officer asked her to leave the SUV and sit in the back seat of the squad car and then transported her to the police station.  She argues that the arrest was not supported by probable cause.

            A "person who drives, operates, or is in physical control of a motor vehicle is subject to the implied consent law."  Minn. Stat. § 169 A. 51, subd. 1(a) (2006).  Probable cause for DWI is assessed based on "the viewpoint of a prudent and cautious police officer" evaluating the particular circumstances.  State v. Harris, 265 Minn. 260, 264, 121 N.W.2d 327, 331 (1963).

            Here, there was an odor of alcohol in the SUV, and appellant admitted she had been "at the bars" and was intoxicated, although she claimed some unidentified "guy" had been driving her car.  Further, the officer had earlier seen the Ford Focus being operated, and just before the stop of the SUV, he saw appellant leave the driver's side of the vehicle.  These facts provide probable cause to believe that appellant had beenat a minimumin physical control of a motor vehicle while impaired.  See State v. Starfield, 481 N.W.2d 834, 839 (Minn. 1992) (addressing factors to consider in determining physical control).

            At this point, the officer had appellant sit in the back seat of his squad car for further questioning.  When she did so, he could smell the odor of alcohol.  He did not ask appellant to perform field sobriety tests at the scene because of the extreme cold; instead, he transported her to the jail and asked her to perform the field sobriety tests as well as a preliminary breath test there.  Any additional expansion of the initial traffic stop was supported by probable cause.  Consequently, the district court properly sustained the revocation of appellant's driver's license under the implied consent law.

            Affirmed.