State of Minnesota, Appellant,

This opinion will be unpublished and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
A17-1689

State of Minnesota,
Appellant,

vs.

Deron Shandell Murphy,
Respondent.

Filed April 30, 2018
Reversed and remanded
Kirk, Judge

Hennepin County District Court
File No. 27-CR-15-2343

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

Francis J. Rondoni, Mark J. Schneider, Gary K. Luloff, Jennifer J. Crancer, Assistant
Golden Valley City Attorneys, Chestnut Cambronne PA, Minneapolis, Minnesota (for
appellant)

Mary F. Moriarty, Fourth District Public Defender, David W. Merchant, Assistant Public
Defender, Minneapolis, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
In this pretrial appeal in a driving while impaired (DWI) case , the state challenges
the district court’s order s suppressing all evidence obtained as a result of a preliminary

2
breath test (PBT) , arguing that the district court erred by finding that there was not
sufficient reasonable articulable suspicion to support the PBT request. We reverse and
remand.
FACTS
On January 26, 2015, respondent Deron Shandell Murphy was charged with third-
degree DWI, third-degree DWI over 0.08, driving after revocation, and speeding for events
alleged to have occurred on November 30, 2014. The district court found that the arresting
officer stopped respondent’s vehicle at approximately 12:15 a.m . on November 30 for
speeding and for “failing to maintain a center position in the lane of traffic.” The arresting
officer approached the vehicle to speak with the driver, whom he identified as respondent.
Respondent did not have a valid driver’s license due to a prior DWI.
In speaking to the arresting officer, the district court found that respondent
“admitted to consuming alcohol at a point earlier in the evening. ” The arresting officer’s
report also noted that respondent’s speech was “somewhat slow,” “that his eyes were
bloodshot and watery ,” and that there was an “odor consistent with that of a consumed
alcoholic beverage coming from the vehicle. ” The arresting officer asked respondent to
get out of the vehicle to perform field sobriety tests, specifically the horizontal gaze
nystagmus (HGN), the walk and turn, and the one -legged stand. After these tests were
completed, the arresting officer also asked respondent to take a PBT. Respondent
registered a blood alcohol co ncentration of 0.114 on th e PBT, and he was placed under
arrest for DWI.

3
Respondent moved to suppress all evidence obtained as a result of the PBT, arguing
that the arresting officer did not have sufficient reasonable articulable suspicion of
impaired driving to support the PBT request. Respondent appeared over two hours late for
his scheduled omnibus hearing, and b ecause the arresting officer had been excused, the
parties agreed to proceed on a stipulated record that consisted of only the officer’s squad
video and police reports. The attorneys argued the matter in writing . On October 20 and
25, 2017, the district court filed orders granting respondent’s motion to suppress, finding
that the arresting officer lacked sufficient reasonable articulable suspicion for the PBT.
This pretrial appeal follows.
D E C I S I O N
When the state appeals a pretrial -suppression order , it “must ‘clearly and
unequivocally’ show both that the [district] court’s order will have a ‘critical impact’ on
the state’s ability to prosecute the defendant successfully and that the order constituted
error.” State v. Zanter , 535 N.W.2d 624, 630 (Minn. 1995) (quoting State v. Kim , 398
N.W.2d 544, 547 (Minn. 1987)) . “[T]he critical impact of the suppression must be first
determined before deciding whether the suppression order was made in error.” State v.
Scott, 584 N.W.2d 412, 416 (Minn. 1998). Here, respondent concedes that the state has
satisfied the critical-impact requirement.
“When reviewing pretrial orders on motions to suppress evidence, we may
independently review the facts and determine, as a matter of law, whether the district court
erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90,
98 (Minn. 1999) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992)). We review

4
de novo the legal issue of whether a search was justified by reasonable articulable suspicion
and review findings of fact for clear error. State v. Burbach, 706 N.W.2d 484, 487 (Minn.
2005). Where the facts are undisputed, “our review is entirely de novo.” Id.
In this case, the parties stipulated to the record from which the district court made
its factual findings. Because the parties did not stipulate to the facts, our review of the
court’s factual f indings is under the clear error standard of review .1 Id. In evaluating
conflicting evidence, “the district court has the discretion to draw its own conclusions and
make factual findings from its independent review of a video recording of a traffic stop.”
State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999).
We will uphold the district court’s “finding below . . . unless it ‘is not reasonably
supported by the evidence as a whole.’” State v. Farrah , 735 N.W.2d 336, 345 (Minn.
2007) (Gildea, J., concurring in part and dissenting in part) (quoting EOP–Nicollet Mall,
L.L.C. v. C ty. of Hennepin , 723 N.W.2d 270, 284 (Minn. 2006) ). “A [district] court’s
finding is erroneous if this court, after reviewing the record, reaches the firm conviction
that a mistake was made.” State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).

1 We acknowledge that where, as here, the arresting officer did not testify and the court
relied on the squad video and accompanying observations of the officer to make its factual
findings, at least one jurisdiction has applied a de novo standard of review. See State v.
Binette, 33 S.W.3d 215, 217 (Tenn. 2000) (“[W]e hold that when a trial court’s findings of
fact at a suppression hearing are based on evidence that does not involve issues of
credibility, a reviewing court must examine the record de novo without a presumption of
correctness.”). The Binette court explained that de novo review was a ppropriate because
“the reviewing court is in the same position as the trial court and is just as capable of
reviewing the evidence.” Id. Here, even under Minnesota’s more deferential clear error
standard of review, we are left with a firm conviction tha t a mistake has been made. On
this record, we decline to address whether a de novo standard of review should apply.

5
Unreasonable searches and seizures by the government are prohibited by the United
States and Minnesota Constitutions. U.S. Const. amend. IV; Minn. Const. art. I, § 10. “A
police officer may, however, initiate a limited investigative seizure without a warrant if the
officer has reasonable articulable suspicion of criminal activity.” State v. Klamar , 823
N.W.2d 687, 691 (Minn. App. 2012) (citing Terry v. Ohio , 395 U.S. 1, 21 -22, 88 S. Ct.
1868, 1880 (1968)). After a legal traffic stop, an officer may expand the scope of the stop
“to include investigation of other suspected illegal activity . . . if the officer has reasonable,
articulable suspicion of such other illegal activity.” State v. Wiegand , 645 N.W.2d 125,
135 (Minn. 2002).
“Reasonable suspicion must be particularized and based on specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant
that intrusion.” State v. Smith, 814 N.W.2d 346, 352 (Minn. 2012) (quotations omitted).
“To be reasonable, the basis of the officer’s suspicion must satisfy an objective, totality -
of-the-circumstances test.” Id. at 351. Observation of “only one objective indication of
intoxication [can] constitute probable cause to believe a person is under the influence,” and
can certainly support the lower standard of reasonable articulable suspicion. State v.
Carver, 577 N.W.2d 245, 248 (Minn. App. 1998) (quoting Heuton v. Comm’r of Pub.
Safety, 541 N.W.2d 361, 363 (Minn. App. 1995)).
Pursuant to Minn. Stat. § 169A.41, subd. 1 (2016), a peace officer may request a
PBT when he “has reason to believe from the manner in which a person is driving,
operating, controlling, or acting upon departure from a motor vehicle, or has driven,
operated or controlled a motor vehicle, th at the driver may be violating or has violated

6
section 169A.20 (driving while impaired).” The officer must have “specific and articulable
facts” to support the request. State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986),
review denied (Minn. May 16, 1986).
Here, according to the arresting officer’s police report, the initial expansion of the
traffic stop to administer field sobriety tests was based on respondent’s driving conduct,
and the officer’s initial observations, including respondent’s admission to drinking alcohol,
his slow speech, his bloodshot and watery eyes, and the odor of a consumed alcoholic
beverage in the vehicle. After reviewing the stipulated record, the district court disputed
some of the arresting officer’s initial observations, but found that respondent was speeding
and “failed to maintain a center position in his lane of traffic, ” and that respondent
“admitted to consuming alcohol . . . earlier [that] evening.” These findings are supported
by the record, and al one are sufficient indicia of impaired driving to provide reasonable
articulable suspicion, not only to ask respondent to perform the initial field sobriety tests,
but also to request a PBT pursuant to Minn. Stat. § 169A.41, subd. 1.
Respondent concedes that the traffic stop of his vehicle was lawful and that the
officer had reasonable articulable suspicion to conduct the initial field sobriety test s. But
respondent argues that requesting a PBT exceeded the scope of the traffic stop for which
the arresting officer had reasonable articulable suspicion. However, “roadside sobriety
tests are not required to support an officer’s reasonable belief that a driver is intoxicated.”
Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983). Here, the district
court’s findings about appellant’s driving conduct and his admission to consuming alcohol
were sufficient to establish that the arresting officer had reasonable articulable suspicion

7
of impaired driving to conduct the field sobriety test s and to request the PBT. Nothing
additional was required to support the request for the PBT.
Nonetheless, the district court held that it could not “give credibility to the [arresting
[o]fficer’s observations of the [appellant’s] impairment . . . [and] the state ha[d] not met its
burden of proof.” The district court found that the arresting officer “testified” that in
speaking with respondent he noticed that his speech was slow, that his eyes were bloodshot
and watery, and that there was an odor of a c onsumed alcoholic beverage coming from
inside the vehicle. Based on its own review of the squad video, the district court found that
“there [wa]s no observable slowness in [respondent’s] speech,” and respondent’s eyes “do
not appear to be bloodshot.”
The district court’s suppression order notes that “[t]he [c]ourt admitted [the arresting
officer’s] squad video,” but the order does not indicate that the record was limited to the
squad video and police reports. In its findings of fact, the court states that the arresting
officer “testified” multiple times , creating the impression that testimony was taken . But
notably, the arresting officer did not testify at the hearing, nor did any other person. Again,
because respondent failed to appear on time for the omnibus hearing , the arresting officer
was excused, and the parties agreed to proceed on a stipulated record. The record is clear
that the arresting officer never testified. The district court appears to be referring to the
information found in the arresting officer’s police report as his “testimony.”
Further, the squad video does not capture respondent’s eyes at the time the arresting
officer first observed them. Because of poor video quality, it is not possible to determine
whether respondent’s eyes were bloodshot or watery when the officer first made contact

8
with respondent. Also, because of poor audio quality, it is not possible to determine
whether respondent’s speech was slow during his first interaction with the officer. Indeed,
it is generally difficult to hear or discern what appellant is saying at all. The only time the
squad video directly captures respondent’s eyes is right before the arresting officer
administers the PBT as he looks toward the squad car. Even at that point, the video’s image
is washed out due to the squad car’s lights, as are portions of respondent’s red pants. The
district court’s findings dis puting the observations in the arresting officer’s report are not
supported by the record.
The district court further found that the arresting officer “testified” or observed that
respondent “failed” each of the three field sobriety tests. Again, the arresting officer did
not testify. But more importantly, nowhere in the record is there any indication that the
arresting officer described respondent’s performance on any test as “failing.” The arresting
officer simply reported his observations, which are consistent with the squad video, to the
extent that the observations are observable on the squad video.
Regarding the HGN test, the arresting officer ’s report “note[s] [a] lack of smooth
pursuit in both eyes and distinct and sustained nystagmus at maximum deviation in both
eyes,” and “also continue[s] to note the odor of a consumed alcoholic beverage” during the
test. The district court acknowledged that these indicia of intoxication could not be
captured by the squad video . On this record , there is no basis to contradict the officer’s
observations on the HGN test. But the district court gave no consideration t o the well-
known technological limitations of a squad video or to the arresting officer’s training and

9
experience when it concluded that the officer’s observations were not supported simply
because they were not captured by the squad video.
Regarding the walk-and-turn test, the arresting officer’s report notes that respondent
executed the turn “in a manner other than [he] had directed.” The officer’s report does not
refer to any flailing of arms or use of supports. However, the district court found that the
squad video shows that respondent “maintained balance without flailing arms or the use of
supports,” and that respondent turned as i nstructed. But because the angle of the squad
video differs from the officer’s angle, and because the arresting officer did not testify, it is
impossible to determine what the arresting officer observed during the test, just as it is
impossible to determi ne from the police report what the arresting officer meant by “ in a
manner other than [he] had directed.” The district court’s findings regarding the walk-and-
turn test are not supported by the record.
Regarding the one -legged-stand test, the arresting officer’s report notes that,
“[w]hile performing the test, [respondent] lost his balance at the 30 -second mark, put his
foot down and picked it up again.” The district court found that, according to the squad
video’s time stamp, respondent actually lost h is balance at 36 seconds into the test. It is
not clear why this six-second distinction is important. Prior to the test, the squad video
shows that the arresting officer instructed respondent that it would take “about 30 seconds,”
and asked him to count to 30, starting with one-thousand-one.
During the test, respondent’s counting slows as he approaches 30, and respondent
stumbles, puts his foot down, and nearly falls as he is saying “30.” The respondent’s pace
of counting determined the length of time that the test lasted. Indeed, the fact that it took

10
respondent an additional six seconds to count to 30 seems to support the arresting officer’s
observation that his speech was slow. The district court’s focus on th is extra six seconds
as a basis to dispute the arresting officer’s interpretation of respondent’s performance on
the one-legged stand is not supported by the record.
The district court found that after the arresting officer determined that respondent
“failed all three tests,” he administered the PBT. Again, the arresting officer’s report made
no mention of respondent “failing” these tests, and the report contradicts the district court’s
findings. The arresting officer’s report indicate s that “[d]ue to [his] observations of
[respondent’s] driving conduct, [his] observations on initial contact, and [his] observations
during field sobriety testing particularly the HGN test, [the arresting officer] asked
[respondent] to submit to a PBT.”
Respondent argues that because of his performance on the HGN, walk-and-turn, and
one-legged-stand tests, the officer’s reasonable articulable suspicion of impaired driving to
request a PBT was “dispelled.” Respondent relies on State v. Hickman , to support his
position. 491 N.W.2d 673, 675 (Minn. App. 1992 ) (holding that an officer’s reasonable
articulable suspicion of driving with an expired vehicle registration was dispelled when the
officer observed a valid temporary permit on the vehicle before approaching the driver ),
review denied (Minn. Dec. 15, 1992). But in Hickman, the officer observed something that
entirely negated his previous suspicion. In this case, nothing about respondent’s
performance on the HGN, walk -and-turn, or one -legged-stand tests entirely negated the
arresting officer’s initial observations, and the officer’s report includes only his
observations, not whether the respondent passed or failed any of the tests.

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Here, the district court concluded that because the arresting officer’s observations
in the police report were not supported by the court’s own review of the squad video, there
was not reasonable articulable suspicion of impaired driving to support the PBT request.
But a review of the evidence in the record shows a rather routine DWI stop by an officer
who acted professionally . The district court’s findings, particularly its evaluation of a
witness’s “testimony” where no testimony actually occurred, are not reasonably supported
by the evidence as a whole. On this record, we cannot uphold the district court’s clearly
erroneous findings, and we conclude that the arresting officer’s reasonable articulable
suspicion of impaired driving in support of the first three field sobriety tests also
sufficiently supported the PBT request. We therefore reverse and remand the district
court’s order granting respondent’s motion to suppress.
Reversed and remanded.