State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0743

State of Minnesota,
Respondent,

vs.

Anthony Solon LaBatte,
Appellant.

Filed March 27, 2017
Affirmed
Jesson, Judge
Concurring specially, Cleary, Chief Judge

Yellow Medicine County District Court
File No. 87-CR-14-265

Lori Swanson, Attorney General, Karen B. McGillic, Assistant Attorney General, St. Paul,
Minnesota; and

Keith R. Helgeson, Yellow Medicine County Attorney, Gran ite Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Kathryn M. Short, Special Assistant Public Defender, Briggs and Morgan, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Halbrooks , Presiding Judge; Cleary , Chief Judge; and
Jesson, Judge.
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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Anthony Solon LaBatte challenges his conviction of felony driving while
impaired, arguing that the district court erred by denying his motion to suppress evidence
because the arresting officer impermissibly expanded the scope of the traffic stop and a
substantial violation of the Scales recording requirement occurred. Because the officer had
reasonable articulable suspicion of additional illegal activity to justify expans ion of the
stop, and because the Scales violation was not substantial, we affirm.
FACTS
Shortly after midnight on May 7, 2014, a police officer working for the Upper Sioux
Community Police Department observed a vehicle come to a rolling stop at a stop sign. He
activated his squad car’s emergency lights, approached the vehicle, and spoke with the
driver, appellant LaBatte.
The officer observed that LaBatte’s voice was low and raspy and that he had droopy
eyelids. The officer, who recognized LaBatte fr om previous contact, testified at a
suppression hearing that he had not observed these characteristics in LaBatte before.
According to the officer, LaBatte also seemed anxious and restless, and he appeared
disoriented and had difficulty finding and removi ng his driver’s license from his wallet.
He kept wiping his hands on his pants, which the officer recognized from his training and
experience in drug evaluation as a possible response when a person is nervous and under
the influence of a drug that increases heart rate and causes sweating. Based on his training
and experience, the officer believed that LaBatte could be impaired by a stimulant.
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After running LaBatte’s driver’s license, the officer reapproached the vehicle and
had LaBatte undertake field sobriety tests, which LaBatte had difficulty performing.
Following the field sobriety tests and a breath test, the officer arrested LaBatte on suspicion
of driving while impaired and placed him in the back of the squad car.
The squad car was equipped with a video recording system, which automatically
activates when the squad’s emergency lights are placed on a high level. Although the
system began to record when the officer observed the traffic violation and initiated the stop,
about four-and-one-half minutes later, the system stopped recording. The officer testified
at a suppression hearing that he was not aware at the time that the recording had stopped,
and that this had occurred either because of a malfunction or because the system’s memory
disk became full.
According to the officer, when he placed LaBatte under arrest, he read him the
Miranda warning, and LaBatte indicated by shaking his head up and down that he
understood his rights. The officer then transported him to the Yellow Medicine Coun ty
jail. The officer testified that during the ride, he asked no questions pertaining to the case
and merely engaged in small talk with LaBatte.
When they arrived at the jail, the officer performed a drug evaluation of LaBatte in
the jail booking room.1 The entire interrogation at the jail was recorded. Although officers

1 The drug recognition evaluation includes an interview with the arresting officer and
administering protocols for evaluating the presence of drugs in a suspect’s system. State
v. Klawitter, 518 N.W.2d 577, 579-80 (Minn. 1994). It includes “questioning of the suspect
in which the officer should suggest that the officer knows the suspect has used certain
drugs.” Id.
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generally read a suspect his Miranda rights before a drug evaluation, the officer did not
read LaBatte his rights again because he had done this ten minutes earlier, at the time of
the arrest. The jail recording confirms that he told LaBatte that he would not be receiving
another Miranda warning, and LaBatte did not indicate that he was confused about his
rights. During the interrogation, the officer asked LaBatte when the puncture marks on his
arms dated from. LaBatte replied, “Five days ago.” The officer asked, “Free party hit or
what?” LaBatte responded, “Pretty much.”
The state charged LaBatte with first -degree driving while impaired under the
influence of a controlled substance. See Minn. Stat. § 169A.20, subd. 1(7) (2014). LaBatte
moved to suppress evidence resulting from the stop, arguing that there was no reasonable
suspicion of additional illegal activity to justify expansion of the stop by performing field
sobriety testing. He also argued that the statement LaBatte made about previous use during
the drug-evaluation interrogation should be suppressed because there was no full recording
of the Miranda warning, which was a violation of the recording requirement in State v.
Scales, 518 N.W.2d 587, 588 (Minn. 1994).
The district court issued an order denying the motion to suppress. The district court
found that the officer had a reasonable articulable suspicion of additional illegal activity,
so as to justify expansion of th e stop, and that the failure to record the Miranda warning,
even if a Scales violation, was insubstantial and did not warrant suppression of LaBatte’s
custodial statements. A jury convicted LaBatte, and the district court sentenced him to 48
months in prison. This appeal follows.
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D E C I S I O N
In a challenge to the district court’s denial of a motion to suppress evidence, this
court independently reviews the facts and determines as a matter of law whether the district
court erred by refusing to suppress the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.
1999). We review the district court’s factual findings for clear error and its legal
determinations de novo. State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009).
LaBatte challenges the district court’s order denying his motion to suppress on two
grounds. First, he argues that the officer impermissibly expanded the scope of the initial
traffic stop, so that the results of the field sobriety tests should have been suppress ed.
Second, he argues that the failure to record the officer’s reading of his Miranda rights
amounted to a substantial Scales violation, so that the district court erred by refusing to
suppress his statements about prior drug use made during the jail interrogation.
I. The district court did not err by denying the motion to suppress field sobriety
tests because police did not impermissibly expand the scope of the traffic stop.

The United States Constitution and the Minnesota Constitution prohibit
unreasonable searches and seizures by the government. U.S. Const. amend. IV; Minn.
Const. art. I, § 10. Police may execute a traffic stop if they have a reasonable suspicion of
criminal activity. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999); see Terry v. Ohio, 392 U.S. 1, 21 -22, 88 S. Ct. 1868, 1880 (1968). Under the Minnesota Constitution, any
incremental intrusion during a stop must be justified by and tied to either (1) the
circumstances that permitted the original stop, (2) independent probable cause, or
(3) reasonableness under Terry. State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004).
6

Thus, to expand the scope of a stop to investigate additional illegal activity, an officer must
have reasonable articulable suspicion of that other illegal activity. State v. Wiegand, 645
N.W.2d 125, 135 (Minn. 2002) (citing Terry, 392 U.S. at 20-21, 88 S. Ct. at 1868). Here,
the district court found that, based on the officer’s training and experience, he reasonably
suspected that LaBatte was impaired by a controlled substance, and the district court
concluded that the officer did not unreasonably expand the scope of the stop.
LaBatte challenges this determination, arguing that the offi cer lacked reasonable
suspicion to expand the scope of the stop beyond its original purpose: to investigate a traffic
violation. Reasonableness is an objective test, based on the totality of the circumstances.
State v. Smith , 814 N.W.2d 346, 351 (Minn. 2 012). LaBatte points out that a driver’s
nervous behavior alone has been held not to justify expansion of a stop, absent other
indications supplying reasonable suspicion. See State v. Burbach, 706 N.W.2d 484, 490 -
91 (Minn. 2005) (concluding that following a traffic stop, a defendant’s nervous demeanor
was not sufficient by itself to provide reasonable suspicion to search his vehicle). And he
argues that, at trial, the officer could recall little about his previous conversation with
LaBatte, which allegedly provided the basis for his observation that LaBatte’s voice was
uncharacteristically low and raspy, and his eyes were droopy.
But here, the officer, who had received training as a state-certified drug recognition
evaluator, did not just note LaBatte’s nervous behavior, raspy voice, and droopy eyelids.
He also observed that LaBatte appeared disoriented and had difficulty removing his
7

driver’s license from his wallet. 2 The officer was permitted to consider all of these
observations together in determin ing whether reasonable suspicion existed to support
expansion of the stop by asking LaBatte to perform field sobriety testing. See, e.g., Smith,
814 N.W.2d at 351 (concluding that driver’s extreme shaking and evasive answers to
questions provided officers with reasonable suspicion to expand scope of traffic stop).
We give deference to the district court’s factual findings regarding whether
reasonable suspicion existed. Id. at 354. Here, the district court’s findings on reasonable
suspicion are not clearly erroneous, and under the totality of the circumstances, LaBatte’s
behavior provided a sufficient basis for the officer to develop reasonable suspicion of
additional illegal activity to support expansion of the stop.
II. The district court did not err by denying the motion to suppress LaBatte’s
custodial statements because, although a Scales violation occurred, the
violation was not substantial.

LaBatte also challenges the district court’s denial of the motion to suppress evidence
of his custodial statements on the ground that a Scales violation occurred and that the
violation was substantial. In 1994, the Minnesota Supreme Court exercised its supervisory
power over the fair administration of justice to impose the requirement that “all custodial
interrogation including any information about rights, any waiver of those rights, and all
questioning shall be electronically recorded where feasible and must be recorded when

2 We also note, to the extent that LaBatte relies on trial testimony to support his argument,
it is inappropriate to challenge a district court ruling with evidence not placed on the record
at the time of the suppression hearing. See State ex rel. Rasmussen v. Tahash , 272 Minn.
539, 554, 141 N.W.2d 3, 13 (1965) (stating that a suppression ruling must be made “[u]pon
the record of the evidence elicited” at the suppression hearing).
8

questioning occurs at a place of detention.” Scales, 518 N.W.2d at 592. Such a recording
safeguards the accused’s right to counsel, right against self -incrimination, and right to a
fair trial. Id. The Scales requirement applies not just to a defendant’s formal statement,
but to the entire custodial interrogation, including administ ration of the Miranda warning
and any waiver of the defendant’s rights. State v. Thaggard, 527 N.W.2d 804, 808 (Minn.
1995). If a violation of the recording requirement is “substantial,” any statements obtained
from the interrogation must be suppressed. Scales, 518 N.W.2d at 592. We review de
novo whether a substantial violation of Scales occurred. State v. Critt, 554 N.W.2d 93, 95
(Minn. App. 1996), review denied (Minn. Nov. 20, 1996).
Here, it is undisputed that the squad car’s recording equipment malfunctioned and
did not record the entire traffic stop and, in particular, the Miranda warning given to
LaBatte. The district court found that it was unclear whether a Scales violation occurred
because LaBatte made incriminating statements regarding dru g use during a separate
recorded interview, in which he acknowledged that he had been given a Miranda warning.
The district court found, however, that even if there was a Scales violation, it was not
substantial, and suppression was not warranted.
The Scales recording requirement applies to the entire custodial interrogation.
Thaggard, 527 N.W.2d at 808. Therefore, we agree with LaBatte that a Scales violation
occurred because his entire custodial interrogation, including the reading of Miranda, was
not recorded.3 We, therefore, must assess whether the violation is substantial. In analyzing

3 The drug recognition evaluation, which requires an interview with a police officer,
contains the type of direct questioning that implicates Miranda because it includes “words
9

this issue, we examine the circumstances relating to substantiality, including those set forth
in the Model Code of Pre -Arraignment Procedure. Scales, 518 N.W.2 d at 592 (citing
Model Code of Pre-Arraignment Procedure § 150.3(2), (3) (1975)). These factors include:
(1) the willfulness of the violation, (2) the extent of the deviation from lawful conduct,
(3) the extent to which the violation was likely to have led the defendant to misunderstand
his legal rights, and (4) the extent to which the statement is likely to have prejudiced the
defendant’s ability to defend himself in the proceeding in which the statement will be used.
Id. at 592 n.5 (citation omitted).
LaBatte argues that the Scales violation was willful. We disagree. There was no
evidence presented to the district court that the officer deliberately turned off the recorder
or that the recording failure was anything more than a technical problem, whi ch occurred
because of a malfunction or a full memory disk. Cf. Critt , 554 N.W.2d at 95 -96
(determining that four -minute gap in recording was not willful and did not amount to a
substantial Scales violation when deputy had turned off recorder after defend ant declined
to give a statement, but turned it back on when the defendant decided to speak).
LaBatte further contends that the Model Code of Pre -Arraignment Procedure
provides that a violation is deemed willful regardless of an individual officer’s goo d faith
if it appears to be the law enforcement agency’s practice or was authorized by a high
authority within the agency. Scales, 518 N.W.2d at 592 n.5 (citing Model Code of Pre -

or actions on the part of the police . . . that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” State v. Edrozo, 578 N.W.2d 719, 724
(Minn. 1998) (quotation omitted); see Klawitter, 518 N.W.2d at 579-80.
10

Arraignment Procedure § 150.3(2)(a)). He cites a footnote to the district court’s order,
which expressed concern with repeated failures of recording equipment in the Upper Sioux
Police Department and noted that officers and departments have an obligation to assure
that their equipment is properly maintained, in working order, and with sufficient space to
store recorded video. We view repeated failures of recording equipment with concern as
well. But these observations of the district court were not included in the district cou rt’s
findings in this case: the district court found only that the Scales violation was negligent,
not willful. And we are reluctant to impute a willful Scales violation to a law-enforcement
agency based solely on equipment failure when the district court received no evidence that
the agency or officials within it authorized a policy of failing to maintain recording
equipment. Cf. id.
LaBatte also maintains that he was prejudiced by the Scales violation because he
disputes that a Miranda warning was gi ven. If a defendant alleges, contrary to the
prosecution’s assertions, that he was not given a Miranda warning or that he did not waive
his Miranda rights, a Scales violation may be considered prejudicial. State v. Inman, 692
N.W.2d 76, 81 (Minn. 2005). This is because the rationale for the recording requirement
is to avoid factual disputes underlying claims that police violated an accused’s
constitutional rights. Id. (citing State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995)).
LaBatte bases his prejudice argument partially on his trial testimony that he was not
read his Miranda rights. But this testimony is not a proper basis for challenging the
suppression order because it was not part of the record at the suppression hearing. See
Rasmussen, 272 Minn. at 554, 141 N.W.2d at 13. LaBatte also points out that the police
11

report does not state that he was given a Miranda warning at the time of arrest, and he
argues that, at the suppression hearing, he implicitly challenged whether an initial warning
had been given. But at the suppression hearing, the main focus of counsel’s argument was
the officer’s failure to re-Mirandize LaBatte at the jail. This argument was rejected by the
district court and has not been renewed on appeal. See State v. Butcher, 563 N.W.2d 776,
780-81 (Minn. App. 1997) (stating issues not briefed are forfeited), review denied (Minn.
Aug. 5, 1997). Under these circumstances, we cannot conclude that LaBatte has shown
prejudice from the Scales violation.4
Finally, we note that, given the officer’s confirmation with LaBatte that he would
not be giving him another Miranda warning and LaBatte’s failure to object, the failure to
record the complete interrogation did not likely lead LaBatte to misunderstand his legal
rights, and excl usion would not likely prevent future Scales violations. See Scales, 518
N.W.2d at 592 n.5. The district court did not err by concluding that no substantial violation
of the Scales requirement occurred and by declining to suppress evidence of LaBatte’s
custodial statements.
Affirmed.

4 We additionally observe that LaBatte has failed to show that the officer was required to
give him a Miranda warning specifically at the time of his arrest, as opposed to during the
drug evaluation, when the record does not in dicate that the officer engaged in custodial
interrogation immediately upon the arrest. See Edrozo , 578 N.W.2d at 724 (defining
“interrogation” for purposes of Miranda requirement).
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CLEARY, Chief Judge (concurring specially)
I agree with the majority that, although there was a Scales violation in this instance,
we cannot say, from this record, that the failure to record the interaction between the officer
and appellant at the scene was willful. The officer testified under oath that he read
appellant his Miranda rights at the scene, and there is no reason to doubt the good faith of
this individual officer. Further, appellant did not testify at the omnibus hearing that he had
not received a Miranda warning. However, “[a] violation shall be deemed willful
regardless of the good faith o f the individual officer if it appears to be part of the practice
of the law enforcement agency or was authorized by a high authority within it.” Model
Code of Pre-Arraignment Procedure § 150.3(2) (1975). Here, the district court admonished
the local police department, noting:
[E]ven though the recording malfunction did not rise to a
substantial Scales violation in the present case, the Court is
concerned with the repeated failures of recording equipment
associated with the Upper Sioux Police Department. Officers
and their departments have an obligation to ensure their
recording equipment is properly maintained, in working order,
and that enough space is available on storage devices to hold
video which should be recorded.

At some point, as the district court implicitly suggested, repeated failures of
recording equipment point to a “practice” of the law enforcement agency. Such failures
may be intentional or may be a result of negligence. It is not enough to simply “blame the
equipment” when equipment f ailure constitutes a pattern of noncompliance with the
recording requirement in State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). In Scales,
the Minnesota Supreme Court stressed that the recording of custodial interrogations is
CS-2
necessary to protect an ac cused’s rights. Id. (concluding that recordings protect an
accused’s right to counsel, right against self -incrimination, and right to a fair trial).
Disturbed by the fact that law enforcement officials had ignored warnings that their failure
to record would be disfavored, the Scales court exercised its supervisory power to ensure
the fair administration of justice. Id. at 591-92. It held “that all custodial interrogation
including any information about rights, any waiver of those rights, and all questioning shall
be electronically recorded where feasible and must be recorded when questioning occurs
at a place of detention.” Id. at 592.
Any statements obtained in violation of the Scales recording requirements must be
suppressed if the violation is deemed substantial. Id. The Scales court held that
substantiality is determined by considering all relevant circumstances, including those set
forth in section 150.3(2) and (3) of the Model Code of Pre-Arraignment Procedure. Id.
Here, the district court expre ssed its concern with the repeated failures of the
recording equipment associated with the Upper Sioux Police Department, but nonetheless
found that the violation at issue was not willful. At some point, such repeated failures
should be considered willful , particularly now that this police department has been given
notice of repeated noncompliance by the district court. I believe that it is incumbent upon
the courts to closely monitor such noncompliance with the requirements of Scales, and
when a practice or pattern of violations emerge, courts should impose the available
remedy: suppression of any statements obtained from the interrogation. Then, and only
then, I would surmise, will police departments consistently “ensure their recording
CS-3
equipment is properly maintained, in working order, and that enough space is available on
storage devices to hold video which should be recorded.”