Yia Her, petitioner, Appellant,

This opinion will be unpublished and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
A19-0201

Yia Her, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed September 3, 2019
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CV-18-4365

Thomas P. Leavitt, Thomas P. Leavitt Criminal Defense, P.L.L.C., Minneapolis,
Minnesota (for appellant)

Keith Ellison, Attorney General, Leah M. P. Hedman, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Yia Her appeals the district court’s order sustaining the revocation of his
driving privileges under Minnesota’s implied -consent law, arguing that the district court
erred by (1) crediting the police officer’s testimony that appellant crossed the center line

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and weaved in his lane; and (2) determining that there was a sufficient basis to stop his
vehicle based upon his five to ten second delay at a green light. We affirm.
FACTS
On a Friday night in June 2018, Maplewood police officers Emily Burt-McGregor
and Pheng Her were driving a fully marked squad car in Maplewood.1 The officers stopped
at a red light facing east on Parkway Drive at Highway 61, immediately behind a white
truck driven by appellant. After the light turned green, appellant’s truck sat at the light for
“five to ten seconds” before it drove forward. The officers followed appellant’s truck .
Officer Burt-McGregor saw appellant’s front tire cross over the center line and Officer Her
saw the truck slowly drifting within its lane toward the fog line. The officers initiated a
traffic stop during which t he officers observed indicia of appellant’s intoxication. The
officers a rrested appellant for driving under the influence , in violati on of Minn. Stat.
§ 169A.20, subd. 1(1) (2016), and his driver’s license was revoked.
Appellant filed a petition for judicial review of his driver’s license revocation
pursuant to Minn. Stat. § 169A.53, subd. 2 (2018). At the implied -consent hearing,
appellant challenged the validity of the stop. Officer Burt-McGregor, Officer Her , and
appellant testified. Following the hearing, the district court issued its order finding that the
stop of appellant’s vehicle was lawful and sustaining the revocation of appellant’s driver’s
license.
This appeal follows.

1 The squad car was not equipped with dashboard camera video to record appellant’s diving
conduct before the stop.

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D E C I S I O N
I.
Both the U.S. and Minnesota Constitutions prohibit unreasonable searches and
seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. “Generally,
warrantless searches are per se unreasonable.” State v. Gauster , 752 N.W.2d 496, 502
(Minn. 2008). A law -enforcement officer may, however, initiate a warrantless limited
investigatory stop if the officer has a reasonable, articulable suspicion of criminal activity.
State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868 (1968)); see also State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011). Generally,
an observation of a violation of a traffic law, no matter how insignificant, forms the
requisite particularized and objective basis for conducting a traffic stop. Wilkes v. Comm’r
of Pub. Safety, 777 N.W.2d 239, 243 (Minn. App. 2010).
We review de novo the district court’s legal determination that an officer had
reasonable suspicion of illegal activity and review the district court’s factual findings for
clear error. State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012). And we defer to the district
court’s credibility determinations. State v. Klamar , 823 N.W.2d 687, 691 (Minn. App.
2012); see also Wilkes, 777 N.W.2d at 246 (“[C]redibility determinations are the province
of the district court.”).
II.
The district court found that both officers testified credibly that appellant’s driving
conduct violated Minn. Stat. § 169.18 , subd. 7 (2016), which prescribes that “a vehicle
shall be driven as nearly as practicable entirely within a single lane.” Appellant argues that

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Officer Burt-McGregor’s testimony that she observed appellant cross the center line was
not credible, and, consequently, that the stop of his vehicle was not supported by
reasonable, articulable suspicion. To support his argument, a ppellant urges this court to
find that the district court’s credibility determination is clearly erroneous because neither
the citation filled out at the scene nor the certificate filled out at the station during the
Breath Test Advisory mentions the alleged driving conduct. Moreover, in the conversation
between Officer Burt-McGregor and another officer—captured on body camera footage—
Officer Burt-McGregor does not mention that appellant weaved or crossed the center line.2
Appellant’s argument is not persuasive.
The factfinder must determine the credibility of the witnesses and the weight to be
given to their testimony. DeMars v. State, 352 N.W.2d 13, 16 (Minn. 1984); see also Minn.
R. Civ. P. 52.01 (“[D]ue regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.”). This court will not disturb a district court’s credibility
determinations on appeal “absent a showing of clear error.” State v. Eakins, 720 N.W.2d
597, 604 (Minn. App. 2006). Here, the district court wrote in its order:
Both officers testified credibly . . . that [appellant] was in
violation of Minnesota Statutes § 169.18. Officer Her testified
that he observed [appellant]’s truck weaving within its lane and
touching the fog line. Officer Burt -McGregor testified that
[appellant]’s truck crossed the center line. Further, in the
primary narrative of the police report after the incident, Officer
Burt-McGregor noted that she observed [appellant] cross the
center line. As noted, this Court also received and reviewed

2 After appellant’s arrest, Officer Burt-McGregor’s body camera captured a conversation
with another officer. When the officer asked Officer Burt -McGregor whether appellant
was “swerving or anything,” Officer Burt-McGregor replied, “We were coming across 61
here, and he just sat at the green light for quite a while.”

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Officer Burt -McGregor’s body cam footage. When another
officer asked Officer Burt -McGregor if [appellant] had been
swerving prior to arrest, it is notable that Officer Burt -
McGregor did not say “yes.” Instead Officer Burt -McGregor
did not respond to the question in the affirmative or negative,
but rather referenced the fact that [appellant] did not proceed
through the intersection appropriately. This did not directly
refute Officer Burt -McGregor’s sworn testimony, but may
merely suggest that communications were inco mplete and
short in the time following [appellant]’s arrest.

Officer Burt-McGregor’s testimony is supported by the record and we see no clear
error in the district court’s determination that Officer Burt-McGregor testified credibly .
Because the district court is in the best position to evaluate the officers’ credibility, we
affirm the district court’s determination.
Appellant also argues that the district court clearly erred when it found that
appellant’s truck touched the fog line. We agree. Officer Her specifically testified that the
truck “didn’t cross over the white line on the passenger side, but it was drifting.” Based
upon our review of the record, there is nothing to support the finding that appellant touched
the fog line—only that he drifted toward the fog line. The district court clearly erred in its
finding that appellant touched the fog line. However, this error is harmless because the
court’s determination that appellant crossed the center line is supported by the record. See
Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979) (holding a court’s inclusion of
other unsupported findings is harmless error where the findings necessary for a legal
conclusion are adequately supported); see also Rosendahl. v. Nelson, 408 N.W.2d 609, 612
(Minn. App. 1987) (“[E]rror in any one of the findings not affecting the result is harmless
error and immaterial to the decision on appeal.”), review denied (Minn. Sept. 18, 1987).

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III.
The district court found that appellant violated Minn. Stat. § 169.15 (2016) by not
proceeding at a green light for five to ten seconds. Under Minnesota law, “[n]o person
shall drive a motor vehicle at such a slow speed as to impede or block the normal and
reasonable movement of traffic.” Id., subd. 1. Because we determine that the district court
did not err in its credibility determination concerning the center line, we need not reach the
merits of appellant’s argument concerning whether appellant’s five-to-ten-second delay is
a violation of Minn. Stat. § 169.15. See State v. Richardson, 622 N.W.2d 823, 826 (Minn.
2001) (“Even observing a motor vehicle weaving within its own lane in an erratic manner
can justify an officer stopping a driver.”).
Without deciding whether a five -to-ten-second delay at a green light is unlawful,
we note that appellant’s conduct contributed to the totality of the circumstances supporting
the officers’ reasonable, articulable suspicion of criminal activity in this case. See Terry,
392 U.S. at 20-22, 88 S. Ct. at 1879 -80 (providing that b ecause probable cause is not
required for an investigatory stop, an officer need not detect an actual violation of law).
To determine whether the suspicion was reasonable, this court applies “an objective,
totality-of-the-circumstances test to the articulated and particularized facts available to the
officer at the moment of the seizure.” State v. Eichers, 840 N.W.2d 210, 221 (Minn. App.
2013) (citing State v. Smith, 814 N.W.2d 346, 351 (Minn. 2012)), aff’d on other grounds,
853 N.W.2d 114 (Minn. 2014). “We do not examine each factor individually to determine
its appropriate weight; instead, we look at the totality of the circumstances of the case.” Id.

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As the district court noted, appellant’s delay in proceeding through the intersection
was “unusual,” given that there was no other traffic present. Appellant’s driving conduct
occurred on a Friday evening. See Paulson v. Comm’ r of Pub. Safety , 384 N.W.2d 244,
246 (Minn. App. 1986) (considering time of day in analysis). Both officers credibly
testified that appellant’s driving conduct suggested that appellant was either impaired or
distracted. In addition, the officers observed appellant ’s truck cross the center line and
drift toward the fog line.
Because the record supports the district court’s determi nation that the officer s had
the requisite reasonable, articulable suspicion of criminal activity, we affirm.
Affirmed.