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This opinion will be unpublished and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
A16-1423

State of Minnesota,
Respondent,

v.

Mai Tria Xiong,
Appellant.

Filed October 30, 2017
Affirmed
Larkin, Judge

Ramsey County District Court
File No. 62-CR-15-1160

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Samuel J. Clark, St. Paul City Attorney, Maria A. DeWolf, Assistant City Attorney,
St. Paul, Minnesota (for respondent)

Robert M. Christensen, Robert M. Christensen, P.L.C., Minneapolis, Minnesota (for
appellant)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Johnson,
Judge.
2
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges her conviction of third-degree driving while impaired, arguing
that the evidence against her should have been suppressed because it was obtained in
violation of her rights under the United States and Minnesota Constitutions. We affirm.
FACTS
Respondent State of Minnesota charged appellant Mai Tria Xiong with two counts
of third -degree D WI. Xiong moved to suppress the evidence supporting the charge ,
arguing that she was “unlawfully seized without reasonable, articulable suspicion of
criminal activity, and her seizure was expanded without lawful justification.”1 The district
court held a hearing on Xiong’s suppression motion, heard testimony from Trooper Jill
Krause of the Minnesota State Patrol, and found the relevant facts to be as follows.
At approximately 1:53 a.m. on June 2, 2014, Trooper Kra use was driving west on
Highway 94 near Snelling Avenue in St. Paul. Trooper Krause noticed a vehicle in the
right adjacent lane, about 40 feet away. Trooper Krause observed the vehicle swerve into
its right adjacent lane, and both of its driver’s side t ires crossed over the dotted lane line.
Trooper Krause slowed her squad car to continue to monitor the vehicle’s operation and
manually turned on her in-car camera.

1 Xiong also argued that she “was subjected to a warrantless search in violation of the state
and federal constitutions” and that her “right to due process was violated when she was
misinformed that the failure to agree to warrantless chemical testing is al ways a crime.”
Xiong does not raise these issues on appeal.
3
Between a quarter and half mile from where Trooper Krause originally saw the
vehicle swerve, Trooper Krause again observed the vehicle swerve over the dotted lane
line. Trooper Krause did not observe the vehicle use a turn signal to indicate an intent to
change lanes. Trooper Krause changed lanes so her squad car was behind the vehicle,
which continued to travel westbound on Highway 94.
Trooper Krause activated her emergency lights and initiated a traffic stop. After the
vehicle pulled over, Trooper Krause exited her squad car, and approached the vehicle. The
trooper asked the driver for her driver’s license and proof of insurance , and identified the
driver as Xiong. Trooper Krause asked Xiong whether she knew why she was pulled over.
Xiong indicated that she did not know, laughed, and said something about being on her
cellphone. Whil e speaking with Xiong, Trooper Krause smelled a moderate odor of
alcohol coming from inside the vehicle and observed that Xiong’s eyes were bloodshot and
watery. Trooper Krause asked Xiong how many drinks she had consumed. Xiong
“stuttered a little” and, after additional questioning, indicated that she had had two drinks.
Trooper Krause asked Xiong to get out of the vehicle so Trooper Krause could determine
whether it was safe for Xiong to driv e. Trooper Krause administered field sobriety tests ,
and Xiong performed poorly on the tests . Xiong submitted to a preliminary breath test,
which registered a 0.134 alcohol concentration.
Trooper Krause took Xiong into custody and transported her to the Ramsey County
Law Enforcement Center, where Trooper Krause read her an implied-consent advisory and
asked her to submit to a breath test. Xiong agreed to take the test, which registered a 0.12
alcohol concentration.
4
The district court denied Xiong’s motion to suppress. Xiong then stipulated to “the
facts foun d in the Minnesota State Patrol Supplement Arrest Report, Implied Consent
Advisory, Squad Video, and Implied Consent Advisory/Miranda Recording,” and the
district court found her guilty of operating a motor vehicle with an alcohol concentration
of 0.08 or more. This appeal follows.
D E C I S I O N
Xiong contends that Trooper Krause “subjected [her] to an illegal, unjustified traffic
stop in violation of [her] rights” under the United States and Minnesota Constitutions.
Xiong offers three arguments in support of this contention. We address each in turn.
I.
Xiong first argues that “[t]he state presented no evidence that [Trooper Krause] was
a licensed peace officer , and so she had no power to conduct a traffic stop or a DWI
investigation.” Xiong relies on State v. Horner , 617 N.W.2d 789, 793 -94 (Minn. 2000).
In that case, two unlicensed volunteer special deputies who were working for the Hennepin
County Sheriff’s Department stopped a boat after observing a possible boating violation,
and, upon noticing indicia of intoxic ation, administered field sobriety tests to the driver.
Horner, 617 N.W.2d at 791. After the driver failed a preliminary breath test, the volunteer
deputies arrested him and transported him to the shore where an officer read him an
implied-consent advisory and administered a breath test. Id. The supreme court held that
the volunteer deputies were not peace officers and therefore were not authorized to
administer the preliminary breath and field sobriety tests. Id. at 794.

5
After the hearing on Xiong’s motion to suppress , she submitted a memorandum
arguing, in part, that the state did not present evidence that Trooper Krause was a licensed
peace officer and therefore did not establish that she was authorized to conduct the traffic
stop and DWI investigation in this case. The district court refused to consider this issue,
concluding that it was waived because it was “not clearly presented or litigated at the
motion hearing.” The district court noted that at the beginning of the hearing, Xiong
identified the issues to be addressed as “the basis for the stop, the expansion of the stop
into a DWI investigation, the necessity of a warrant for alcohol concentration testing, and
the violation of [her] due process rights .” The district court further n oted that Xiong did
not argue that Trooper Krause was not a licensed peace officer until after the motion
hearing, when Xiong submitted her supporting memorandum.
On appeal, Xiong does not acknowledge, much less challenge, the district court’s
conclusion that she waived the licensing issue. Thus, Xiong does not discuss the relevant
legal authorities, including Minn. R. Crim. P. 10.01, subd. 2 (stating that the failure to
include any “defenses, objections, issues, and requests then available” in a pretrial motion
constitutes waiver), State v. Balduc, 514 N.W.2d 607, 609-10 (Minn. App. 1994) (holding
that a suppression issue first raised after an omnibus hearing is not waived if no prejudice
is shown), and State v. Brunes , 373 N.W.2d 381, 386 (Minn. App. 1 985) (holding that
defendant’s claim regarding the propriety of an unannounced, nighttime search was waived
because defendant first raised the issue in memorandum after an omnibus hearing).
Xiong also does not acknowledge the relief that would be appropr iate if this court
were to conclude that the district court erroneously determined that the licensing issue was
6
waived: reversal and remand for the district court to consider the issue in the first instance.
Instead, Xiong invites this court to consider the merits of her argument for the first time on
appeal and to hold that the stop was invalid because the record evidence does not establish
that Trooper Krause was a licensed peace officer.
This court generally does not decide issues that were not determined in the district
court, State v. Smith , 876 N.W.2d 310, 335 (Minn. 2016) , and we will not do so here .
Moreover, issues that are not briefed on appeal are waived. State v. Butcher, 563 N.W.2d
776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). Because Xiong does
not argue that the district court erroneously concluded that the licensing issue was waived,
we do not consider reversing and remanding for the district court to decide this issue.
We nonetheless note that the record before us indicates that the circumstances here
are nothing like those in Horner. Trooper Krause testified that she is a “sworn officer”
with the Minnesota State Patrol and has made over 150 DWI arrests. In fact, Xiong does
not claim that Trooper Krause was unlicensed; Xiong merely complains that the state failed
to present evidence regarding the trooper’s licensing status. There is little reason to believe
that the state would not have been able to prove that Trooper Krause was a licensed peace
officer had the issue been raised at the motion hearing.
II.
Xiong argues that in the alternative, “even if [Trooper Krause] were a licensed
officer, the evidence was not sufficient to give rise to a reasonable, articulable suspicion of
criminal activity that would be enough to justify a stop by a licensed officer.”
7
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. However,
a police officer may initiate a limited, investigative stop without a warrant if the officer has
reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88
S. Ct. 1868, 1880 (1968). In determining whether reasonable suspicion exists, Minne sota
courts “consider the totality of the circumstances and acknowledge that trained law
enforcement officers are permitted to make inferences and deductions that would be
beyond the competence of an untrained person.” State v. Richardson , 622 N.W.2d 823,
825 (Minn. 2001). This court reviews a district court’s determination of reasonable
suspicion of illegal activity de novo, but accepts the district court’s factual findings unless
they are clearly erroneous. Id. In reviewing the district court’s factual findings for clear
error, this court defers to the district court’s credibility determinations. State v. Miller, 659
N.W.2d 275, 279 (Minn. App. 2003), review denied (Minn. July 15, 2003).
Any traffic violation—however slight—provides a basis for a traffic stop. State v.
George, 557 N.W.2d 575, 578 (Minn. 1997). Crossing over traffic lanes without signaling,
weaving or swerving in a lane, and failing to stay within a lane provide a reasonable,
articulable suspicion of a traffic violation justifying a stop. See Minn. Stat. § 169.18, subd.
7(a) (Supp. 2013) (“A vehicle shall be driven as nearly as practicable entirely within a
single lane and should not be moved from such lane until the driver has first ascert ained
that such movement can be made with safety.”); see, e.g., Richardson, 622 N.W.2d at 825-
26 (upholding traffic stop where police received report that vehicle had been driving “all
over the road” and observed vehicle crossing over fog line); State v. K vam, 336 N.W.2d
8
525, 528 (Minn. 1983) (stating that an officer is justified in stopping a driver where the
officer observes the driver “weaving within [her] lane in an erratic manner”); State v. Jones,
649 N.W.2d 481, 484 (Minn. App. 2002) (upholding traff ic stop where police observed
driver changing lanes without signaling).
Trooper Krause testified that she observed Xiong’s vehicle “swerve into the
adjacent lane on the right,” with “[b]oth tires [going] over the dotted skip stripe.” Trooper
Krause testified that she saw the vehicle again “swerve over the right skip stripe with both
tires [going] into the right lane of traffic.” Trooper Krause also testified that although there
was “a light mist” at the time, there were many overhead road lights and “visi bility was
fine.” Defense counsel cross-examined Trooper Krause regarding the contents of the squad
video, and the district court was therefore invited to assess the trooper’s credibility in light
of the video. The district court credited the trooper’s testimony, finding that Xiong twice
swerved into her right adjacent lane, the area was well -lit, and the weather conditions at
the time caused “little obstruction in visibility.” This court defers to that credibility
determination. See Miller, 659 N.W.2d at 279.
Xiong argues that the in-car video of the incident demonstrates that Trooper Krause
“was not in a position to see whether [she] crossed a lane divider, and no swerve appears
on the video.” Xiong further contends that “[i]t was dark, it was raining, and the trooper
had her windshield wipers on” and that “[e]ven if there was contact with the lane divider,
it was minimal and not enough to constitute leaving her lane.”
The video indicates that the area where Trooper Krause observed Xiong’s vehicle
was well -lit by overhead lights and tha t weather conditions only minimally obstructed
9
visibility. And although the squad video does not show Xiong’s vehicle swerving into its
right adjacent lane to a large degree, it provides sufficient support for the district court’s
finding that Trooper Kra use twice observed the vehicle swerving . We therefore do not
consider that finding clearly erroneous.
In sum, we defer to the district court’s credibility determination and conclude that
Trooper Krause had reasonable, articulable suspicion of criminal activity that justified the
traffic stop.
III.
Lastly, Xiong argues that Trooper Krause unlawfully expanded the traffic stop into
a DWI investigation. “[E]ach incremental intrusion during a stop must be strictly tied to
and justified by the c ircumstances which rendered the initiation of the stop permissible.”
State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (quoting Terry, 392 U.S. at 19, 88
S. Ct. at 1868) (quotation marks omitted). Under the Minnesota Constitution, “an intrusion
not strictly tied to the circumstances that rendered the initiation of the stop permissible
must be supported by at least a reasonable suspicion of additional illegal activity.” State
v. Smith, 814 N.W.2d 346, 350 (Minn. 2012). The extension of a traffic stop does not
violate the Minnesota Constitution “so long as each incremental intrusion during the stop
is tied to and justified by one of the following: (1) the original legi timate purpose of the
stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry v. Ohio.”
Id. (quotation omitted).
Xiong contends that Trooper Krause unlawfully expanded the traffic stop when she
asked Xiong to step out of her vehicle and began a DWI investigation. However, “once a
10
motor vehicle has been lawfully detained for a traffic violation, [a] police officer[] may
order the driver to get out of the vehicle without violating the Fourth Amendment’s
proscription of unreasonable searches and seizures.” Pennsylvania v. Mimms , 434 U.S.
106, 111 n.6, 98 S. Ct. 330, 333 n.6 (1977); Askerooth, 681 N.W.2d at 367. Thus, Trooper
Krause did not need reasonable suspicion to ask Xiong to get out of her vehicle.
As to whether there was reasonable suspicion for Trooper Krause to conduct a DWI
investigation, this court has held that an odor of alcohol, observation of a driver’s bloodshot
and watery eyes, and a driver’s admission of drinking establish reasonable suspicion
justifying an officer’s expansion of a traffic stop to a DWI investigation. See, e.g., State v.
Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (odor of alcohol and bloodshot and
watery eyes); State v. Vonderharr , 733 N.W.2d 847, 854 (Minn. App. 2007) (odor of
alcohol and admission of drinking); State v. Lopez , 631 N.W.2d 810, 814 (Minn. App.
2001) (odor of alcohol), review denied (Minn. Sept. 25, 2001). Here, the district court
found that Trooper Krause “smelled a moderate odor of alcohol from inside the vehicle,
and observed that [Xiong’s] eyes were bloodshot and watery” before asking Xiong to leave
her vehicle. The district court also found that Xiong admitted that she had consumed two
drinks. Under the totality of the circumstances, these indicia of intoxication were sufficient
to justify the expansion of the traffic stop into a DWI investigation.
Affirmed.