State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0865

State of Minnesota,
Respondent,

vs.

Christian Alfo Cano Fernandez,
Appellant.

Filed January 7, 2019
Affirmed
Schellhas, Judge

Blue Earth County District Court
File No. 07-CR-17-2614

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

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent)

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

Adam Chandler, Special Assistant Public Defender, Briggs and Morgan, P.A.,
Minneapolis, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Schellhas, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his conviction of driving while impaired, argu ing that the
district court erred by denying his suppression motion because the evidence obtained was
the result of an unlawful expansion of the scope of the traffic stop. We affirm.
FACTS
After midnight on July 14, 2017, Officer William Hullopeter stopped a vehicle when
he discovered that the registered owner, a 48 -year-old woman, had a cancel led driver’s
license. As he exited his squad car and approached the vehicle, Officer Hullopeter observed
that the driver, who was not a female, had bloodshot, watery eyes, and that his breath had
a “strong minty odor” emanating from the gum he was chewing. Officer Hullopeter also
observed “beer cans directly behind the driver’s seat,” and that the driver was wearing two
paper wristbands th at are the type commonly issued at events where alcohol is served.
Officer Hullopeter identified the driver as appellant Christian Fernandez and asked him to
perform several field sobriety tests, the results of which indicated impairment. The officer
arrested Fernandez, transported him to the Blue Earth County Jail, and read him the Implied
Consent Advisory. Fernandez agreed to provide a breath test , which revealed an alcohol
concentration of 0.10.
Respondent State of Minnesota charged Fernandez with two counts of gross
misdemeanor driving while impaired (DWI) and one count of driving after cancelation.
Fernandez moved to suppress the evidence obtained as a result of the stop, arguing that the
stop was unlawfully expanded because Officer Hullopeter should not have further

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approached the driver as soon as he shined his spotlight into the vehicle and determined
that the driver was not a female and therefore was not the registered owner of the vehicle
with the canceled driver’s license. At the suppression hearing, the court heard Officer
Hullopeter’s testimony and proceeded on the basis of oral argument, police reports, and the
squad-car video.
The district court found that “the officer’s suspicions about the identity of the driver
were not dispelled until he exited the squad vehicle and approached [Fernandez’s] vehicle.”
The court also found that when Officer Hullopeter “approached the vehicle and spoke with
[Fernandez], he immediately” observed signs that Fernandez had been drinking, and that
“these new observations were made at the same time that Hullopeter determined that the
driver was not the registered owner.” The court sta ted that “[i]t is nonsensical that, upon
making the . . . additional observations, Hullopeter would simply walk away from the scene
because his suspicions about a possible driver with a cancelled license had been dispelled.”
The court determined that the officer’s “observations are enough to give rise to a reasonable
suspicion that [Fernandez] had been driving under the influence of alcohol, and they
therefore support an expansion of the scope of the initial stop to include a DWI
investigation.” The district court therefore denied Fernandez’s motion to suppress.
Fernandez waived his right to a jury trial, stipulated to the state’s evidence, and
agreed to submit the case to the district court under Minn. R. Crim. P. 26.01, subd. 4, to
preserve for appellate review the pretrial suppression ruling. The district court found
Fernandez guilty of the two counts of gross misdemeanor DWI, but not guilty of driving

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after cancelation. The court sentenced Fernandez to 364 days in jail, 279 of which was
stayed for two years.
This appeal follows.
D E C I S I O N
When reviewing a pretrial suppression order, this court reviews a district court’s
factual findings for clear error and the legal determinations de novo. State v. Onyelobi, 879
N.W.2d 334, 342–43 n.4 (Minn. 2016). A factual finding “is not clearly erroneous if it is
reasonably supported by the evidence as a whole.” State v. Barshaw, 879 N.W.2d 356, 366
(Minn. 2016).
The United States and Minnesota Constitutions protect ind ividuals from
“unreasonable searches and seizures” by the government. U.S. Const. amend. IV; Minn.
Const. art. 1, § 10. But a law enforcement officer may conduct a brief investigatory stop of
a person if the officer has a reasonable, articulable suspicion that the person might be
engaged in criminal activity. State v. Diede , 795 N.W.2d 836, 842 (Minn. 2011) (citing
Terry v. Ohio, 392 U.S. 1, 19–21, 88 S. Ct. 1868, 1879–81 (1968)). “Reasonable suspicion
must be based on specific, articulable facts that allow the officer to be able to articulate
that he or she had a particularized and objective basis for suspecting the seized person of
criminal activity.” State v. Morse, 878 N.W.2d 499, 502 (Minn. 2016) (quotations omitted).
“[T]he scope of a [seizure] must be strictly tied to and justified by the circumstances
that rendered the initiation of the investigation permissible.” State v. Wiegand, 645 N.W.2d
125, 135 (Minn. 2002). A n officer may expand the scope of the initial stop to investigate
other suspected illegal activity “if the officer has reasonable, articulable suspicion of such

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other illegal activity.” Id. Each incremental intrusion must be tied to and justified by the
stop’s original purpose, by probable cause, or by reasonableness. State v. Smith , 814
N.W.2d 346, 350 (Minn. 2012).
In State v. Pike, the supreme court considered the validity of an investigatory stop
of a vehicle that was based on an officer’s knowledge that the owner of the vehicle had a
revoked license. 551 N.W.2d 919, 922 (Minn. 1996). The supreme court explained that,
“[w]hen an officer observes a vehicle being driven, it is rational for him or her to infer that
the owner of the vehicle is the current operator.” Id. Based on this inference, the court held
that
it is not unconstitutional for an officer to make a brief,
investigatory, Terry-type stop of a vehicle if the officer knows
that the owner of the vehicle has a revoked license so long as
the officer remains unaware of any facts which would render
unreasonable an assumption that the owner is driving the
vehicle.

Id.
Fernandez acknowledges that under Pike, the initial stop of the vehicle was valid
because the vehicle was registered to a n owner with an expired driver’s license. But
Fernandez argues that because “Officer Hullopeter’s reasonable suspicion of criminal
activity was based entirely upon his assumption that the registered owner . . . was the person
driving the vehicle,” the reasonable suspicion justifying the stop was dispelled as soon as
the officer “shined his squad spotlight on the car” and recognized that Fernandez was not
a middle-aged woman. Fernandez argues that because Officer Hullopeter observed that the

6
driver of the vehicle was not a middle -aged woman, his detention of Fernandez for the
purpose of asking to see his driver’s license was unconstitutional.
To support his claim, Fernandez cites State v. Hickman , 491 N.W.2d 673 (Minn.
App. 1992), review denied (Minn. Dec. 15, 1992). In that case, a police officer noticed that
the defendant’s vehicle-registration sticker on his license plate had expired and initiated a
traffic stop. Id. at 674. While still sitting in his vehicle, the officer noticed a temporary
registration sticker in the rear window of the vehicle and confirmed the validity of the
permit as he approached the vehicle. Id. The officer nonetheless requested the defendant’s
driver’s license. Id. This court held that
detaining [defendant] to check his driver’s license constituted
an unlawful intrusion because [the officer’s] suspicions about
the vehicle’s registration had been dispelled before he
approached the driver. After seeing the valid temporary permit,
the officer no long had articulable and reasonable suspicion
that the vehicle was unregistered, that the driver was
unlicensed, or that any criminal activity was afoot.

Id. at 675 (footnote omitted).
This case is distinguishable from Hickman because unlike in Hickman, Officer
Hullopeter’s suspicions that criminal activity was afoot were not dispelled until he “was in
close proximity to the vehicle ,” close enough to observe that the registered owner of the
vehicle was not the driver, but also close enough to “ immediately” observe that the driver
had “bloodshot, watery eyes,” and “‘minty’ breath.” (Emphasis added.). Officer Hullopeter
also observed “alcoholic beverage containers in plain view in the vehicle,” and that
Fernandez was wearing wristbands of the type worn by “younger people at events or
locations where alcohol is served.” These new observations occurred prior to Officer

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Hullopeter asking for Fernandez’s driver’s license and provided him with reasonable
suspicion that Fernandez was driving under the influence of alcohol. See State v. Klamar,
823 N.W.2d 687, 696 (Minn. App. 2012) (concluding that an officer’s observation of the
odor of alcohol and bloodshot and watery eyes justified the expansion of a traffic stop to
investigate a suspicion of impaired driving); State v. Kier , 678 N.W.2d 672, 678 (Minn.
App. 2004) (“An officer needs only one objective indication of intoxication to constitute
probable cause to believe a person is under the influence.” (quotation omitted)). Under
these circumstances, it was reasonable for Officer Hullopeter to continue the stop. See State
v. Lopez, 631 N.W.2d 810, 813–14 (Minn. App. 2001) (explaining that “the validity of the
original stop continues at least long enough for the officer to approa ch the car and inform
the driver he is free to go” because it would be “impractical” to suggest that the officer,
upon seeing evidence dispelling the basis for the stop, should “immediately turn away and
leave the stopped vehicle without explanation”), review denied (Minn. Sept. 25, 2001).
Although Fernandez is correct that the reasonable suspicion for th e basis of the
initial stop was dispelled when the officer observed that Fernandez was not a middle-aged
woman, the officer’s immediate observations that F ernandez may have been under the
influence of alcohol provided the officer with a valid basis to continue with the stop and to
expand the scope of the stop. See id. (holding that “[b]ecause the odor of alcohol provided
[the officer] with reasonable suspici on of criminal activity . . . she had a lawful basis to
continue the detention and conduct an investigation”). We conclude that the district court
did not err by denying Fernandez’s suppression motion.
Affirmed.