Daniel Roy Gibbs v. Commissioner of Public Safety

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2082

Daniel Roy Gibbs, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed July 21, 2014
Affirmed
Halbrooks, Judge

Faribault County District Court
File No. 22-CV-12-796

Calvin P. Johnson, Elizabeth M. Levine, Calvin P. Johnson Law Firm, LLC, Mankato,
Minnesota (for appellant)

Lori Swanson, Attorney General, Anne Fuchs, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and

Smith, Judge.

UNPUBLISHED OPINION

HALBROOKS, Judge

On appeal from an order sustaining the revocation of his driver’s license under the

implied-consent law, Minn. Stat. §§ 169A.50-.53 (2012), appellant argues (1) the traffic

stop was not supported by reasonable suspicion, (2) the officer improperly expanded the
traffic stop by asking him to exit his vehicle and asking about his earlier activities, (3) the

warrantless test under the implied-consent law violated appellant’s Fourth Amendment

rights, and (4) the implied-consent procedure violates the unconstitutional-conditions

doctrine. We affirm.

FACTS

On November 28, 2012, while on routine patrol at approximately 11:00 p.m.,

Officer Purvis of the Blue Earth Police Department observed a commercial motor vehicle

without a rear license plate. He initiated a traffic stop of the vehicle because, in his

experience, a missing license plate can indicate that the vehicle is not registered or is

stolen. The officer did not know, nor could he tell from observing the moving vehicle,

that the vehicle was registered under the International Registration Plan (IRP) and was

based in Iowa, which, unlike Minnesota, does not require a rear license plate for IRP-

registered trucks. The officer approached and asked the driver to exit the cab because,

while seated, he was about five feet higher than the officer. The officer identified the

driver by his Iowa driver’s license as appellant Daniel Roy Gibbs.

The officer informed appellant of the basis for the stop, and the two walked to the

rear of the vehicle and confirmed the absence of a rear license plate. While they were

talking, the officer noticed that appellant’s eyes were “slightly bloodshot” and that he had

an odor of alcoholic beverage coming from him. The officer asked appellant if he had

been drinking any alcoholic beverages that day, and appellant replied that he had had a

few drinks at supper.

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 The officer asked appellant to perform two field sobriety tests and concluded,

based on appellant’s performance on the horizontal gaze nystagmus test, that appellant

was under the influence of alcohol. The officer then administered a preliminary breath

test, which resulted in a .08 reading. The officer determined that appellant was “under

the influence for operating the vehicle that he was driving,” and took him to the Faribault

County Jail. At the jail, the officer read the Minnesota Implied Consent Advisory to

appellant, who stated that he understood the advisory and did not wish to consult with an

attorney. Appellant submitted to a breath test, which showed an alcohol concentration of

.08. The officer did not attempt to obtain a search warrant before administering the

breath test.

Appellant was issued a citation for fourth-degree DWI in a commercial motor

vehicle under Minn. Stat. § 169A.20, subd. 1(6) (2012) (alcohol concentration of .04 or

more), booked into jail, and released. The Commissioner of Public Safety ordered

appellant’s driver’s license revoked, and a hearing was held on July 24, 2013. The

district court denied appellant’s motion to suppress the breath-test results and sustained

his license revocation, ruling that (1) the traffic stop was valid; (2) the officer had

reasonable, articulable suspicion of criminal activity to expand the stop beyond its

original scope; (3) the breath test was supported by consent; and (4) the implied-consent

process did not violate appellant’s constitutional rights. This appeal follows.

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 DECISION

I.

We review de novo a district court’s determination of reasonable suspicion as it

relates to investigatory stops. In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997).

We determine whether the officer had a reasonable basis to justify the stop by looking to

“the events surrounding the stop and consider[ing] the totality of the circumstances.”

State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

Under the United States and Minnesota Constitutions, unreasonable searches and

seizures are prohibited. U.S. Const. amend. IV; Minn. Const. art. I, § 10. An officer may

conduct a limited investigatory stop if the officer has reasonable, articulable suspicion of

criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). And

“[g]enerally, if an officer observes a violation of a traffic law, no matter how insignificant

the traffic law, that observation forms the requisite particularized and objective basis for

conducting a traffic stop.” State v. Anderson, 683 N.W.2d 818, 823 (Minn. 2004).

The threshold for meeting the reasonable, articulable suspicion standard is not

high. State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008). To meet the reasonable,

articulable suspicion standard, an officer must “show that the stop was not the product of

mere whim, caprice or idle curiosity” but rather “was based upon ‘specific and articulable

facts which, taken together with rational inferences from those facts, reasonably warrant

that intrusion.’” State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry, 392

U.S. at 21, 88 S. Ct. at 1880). The reasonable, articulable suspicion standard is met when

the officer “observes unusual conduct that leads the officer to reasonably conclude in

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light of his or her experience that criminal activity may be afoot.” Timberlake, 744

N.W.2d at 393.

Here, the officer suspected that the vehicle may have been unregistered or stolen

based on the absence of a rear license plate. Commercial vehicles such as the one

appellant was driving1 are generally required by Minn. Stat. § 169.79, subd. 3 (2012), to

display rear license plates. The district court found that the traffic stop was valid

because, based on the facts available to the officer, it was reasonable to suspect that the

commercial vehicle was being operated in violation of Minn. Stat. § 169.79, subd. 3. As

the district court found:

At the initiation of the stop, Officer Purvis reasonably
believed that all vehicles in Minnesota were required to have
a rear license plate. Further, he did not know at the initiation
of the stop that the truck was licensed in the [s]tate of Iowa,
that the truck was registered in the [IRP], or that the truck was
not required to have a rear license plate under Iowa guidelines
of the [IRP].

The district court therefore determined that the officer’s belief that a required rear license

plate was missing was not a mistake of law.

Generally, an officer’s mistake of what the law requires cannot support a traffic

stop based on a violation of that requirement. Anderson, 683 N.W.2d at 823-24 (holding

that an officer’s mistaken belief that defendant had violated a traffic law by failing to

1
Appellant argues for the first time on appeal that even if his vehicle was based in
Minnesota it would not be subject to Minn. Stat. § 169.79, subd. 3, because it is a truck-
tractor that would be subject to Minn. Stat. § 169.79, subd. 5 (2012). Appellant did not
make this argument to the district court. We generally do not consider arguments that
were not raised to the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.
1988). We therefore decline to do so here.

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provide a buffer lane between his vehicle and a police car did not justify the traffic stop);

State v. George, 557 N.W.2d 575, 578-79 (Minn. 1997) (holding that a police officer’s

mistaken belief that headlight configuration on defendant’s motorcycle was illegal did

not justify the traffic stop). But a mistake of fact does not invalidate a stop as long as the

mistake is reasonable. See State v. Johnson, 392 N.W.2d 685, 687 (Minn. App. 1986)

(holding that a mistake in identity does not render a stop invalid). Here, the officer could

not determine from visual inspection of appellant’s moving vehicle that it was licensed

under the IRP, based in Iowa, in compliance with Iowa licensing requirements, and

therefore in compliance with Minnesota law under reciprocity rules. See Minn. Stat.

§§ 168.181, .187 (2012). Further investigation of the absent license plate was required.

In State v. Barber, the Minnesota Supreme Court upheld the stop of a vehicle with

its license plates secured with baling wire. 308 Minn. 204, 204-05, 241 N.W.2d 476, 476

(1976). The officer stopped the vehicle on the suspicion that the license plates may have

been stolen because they were not bolted on. Id. at 205, 241 N.W.2d at 476. The stop

was upheld because it was not based on “mere whim, caprice, or idle curiosity.” Id. at

207, 241 N.W.2d at 477. Similarly, in State v. Cox, this court held that, although a

vehicle displayed a current vehicle registration sticker, a stop to determine if the sticker

was stolen was justified by an erroneous motor vehicle database entry that showed that

the vehicle’s registration had expired. 807 N.W.2d 447, 452 (Minn. App. 2011).

This stop was not “the product of mere whim, caprice or idle curiosity” but rather

“was based upon ‘specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.’” Pike, 551 N.W.2d at

6
921-22 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880). Because the officer could not

have determined that the vehicle was properly licensed without stopping it, we agree with

the district court that if there was a mistake, it was a mistake of fact, not of law, and that

any mistake was reasonable. We therefore conclude that the stop of appellant’s vehicle

was supported by reasonable, articulable suspicion.

II.

Appellant argues that the traffic stop was improperly expanded by (1) the officer’s

request of appellant to exit the vehicle and (2) the officer’s questions about appellant’s

earlier activities. The scope and duration of a traffic stop is limited to what is necessary

to dispel the suspicion of criminal activity that justified the stop. State v. Fort, 660

N.W.2d 415, 418 (Minn. 2003). But expansion beyond the original basis for the stop is

permitted when there is reasonable, articulable suspicion of criminal activity beyond the

initial reason for the stop. State v. Wiegand, 645 N.W.2d 125, 129 (Minn. 2002).

Appellate courts review de novo whether additional reasonable suspicion is present to

justify expansion of a stop. Id.

The basis for the stop here was the absence of a rear license plate on the vehicle.

The officer testified that he asked appellant to exit the vehicle for officer-safety reasons,

because it was dark, it was late at night, and the height of the cab “put[] me in a

dangerous situation I don’t care to be put in.” “[A] police officer may order a driver out

of a lawfully stopped vehicle without an articulated reason.” State v. Askerooth, 681

N.W.2d 353, 367 (Minn. 2004). The district court did not err by ruling that the officer

properly asked appellant to exit the vehicle.

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 Appellant also challenges the officer’s questions about his activities earlier in the

evening. The officer testified that he made this inquiry because he smelled an odor of

alcoholic beverage, and he noticed that appellant’s eyes were bloodshot. This court has

held that a faint odor of alcohol coming from a car is sufficient to expand a stop beyond

its original basis. State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001), review denied

(Minn. Sept. 25, 2001). We have also held that when an officer “immediately observed

signs of . . . intoxication” upon approaching a vehicle to inquire about a license-plate-

registration sticker discrepancy, the expansion of the stop was justified. Cox, 807

N.W.2d at 452. Under Minnesota law, there is a lower per se limit of alcohol

concentration for drivers of commercial motor vehicles. Minn. Stat. § 169A.20, subd.

1(6). Because appellant was operating a commercial motor vehicle, had bloodshot eyes,

and smelled of alcoholic beverage, the district court properly ruled that the officer had

reasonable suspicion of unlawful conduct that was sufficient to expand the traffic stop

beyond its original purpose.

III.

Appellant argues that the district court erred by ruling that a search warrant was

not required and that he voluntarily consented to the breath test. The United States and

Minnesota Constitutions protect against unreasonable searches and seizures. U.S. Const.

amend. IV; Minn. Const. art. I, § 10. Taking and testing a blood, breath, or urine sample

constitutes a search under the Fourth Amendment. Skinner v. Ry. Labor Execs.’ Ass’n,

489 U.S. 602, 616-18, 109 S. Ct. 1402, 1412-13 (1989). A warrantless search is

8
unreasonable unless it falls within an exception to the warrant requirement. State v.

Flowers, 734 N.W.2d 239, 248 (Minn. 2007).

A warrantless search is valid if the person voluntarily consents to the search. State

v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). The

state bears the burden of showing by a preponderance of the evidence that the defendant

freely and voluntarily consented. Id. Whether consent is given freely and voluntarily is

determined by examining the “totality of the circumstances.” Id. (quotation omitted).

The totality of the circumstances includes “the nature of the encounter, the kind of person

the defendant is, and what was said and how it was said.” Id. at 569 (quoting State v.

Dezso, 512 N.W.2d 877, 880 (Minn. 1994)).

Appellant was arrested for driving under the influence, was read the implied-

consent advisory, stated that he understood it, declined the opportunity to consult with an

attorney, and agreed to submit to a breath test. The totality of the circumstances supports

a conclusion that appellant voluntarily consented to the breath test.2 No evidence

suggests that appellant was coerced to submit to the breath test, and the record reflects

that the officer properly followed all of the procedures established under the implied-

consent law. Because appellant’s consent was given freely and voluntarily, a search

warrant was not required. The district court did not err in ruling that a search warrant

was not required and that appellant voluntarily consented to the breath test.

2
Appellant also argues that because he was not read the Miranda warning, he could not
have voluntarily consented to a breath test. Appellant did not raise this argument to the
district court. We decline to address it here. See Thiele, 425 N.W.2d at 582.

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 IV.

Appellant also challenges the constitutionality of the implied-consent statute

because it includes criminal penalties for test refusal. Our supreme court held in Brooks

that fear of the criminal consequence for refusing to test under the implied-consent law

does not make consent to test involuntary. 838 N.W.2d at 570-72. Appellant’s

constitutional challenge to the implied-consent statute is without merit.

Affirmed.

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