Kevin Nelson Birkland, petitioner, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0937

Kevin Nelson Birkland, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed February 18, 2020
Reversed and remanded
Slieter, Judge

Hennepin County District Court
File No. 27-CV-18-16618

Paul B. Ahern, Wayzata, Minnesota (for appellant)

Keith Ellison, Attorney General, Brian F. Murn, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Slieter,
Judge.
S Y L L A B U S
Minnesota Statutes section 169.19, subdivision 1(b) (2018) does not mandate that a
driver turning left from a single left -turn lane must turn into the innermost lane of the
roadway being entered.
O P I N I O N
SLIETER, Judge
Appellant Kevin Nelson Birkland appeals the district court’s order sustaining the
revocation of his driving privileges pursuant to Minnesota’s implied-consent laws, Minn.

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Stat. §§ 169A.50 -.53 (2018), arguing that the police officer did not have reasonable
suspicion of a traffic violation to stop the vehicle he was driving after turning left into the
outermost lane of a four-lane roadway. Because Birkland did not violate a traffic statute,
we reverse and remand for the district court to rescind the driver’s license revocation.
FACTS
On September 30, 2018 , at approximately 10:04 p .m., an officer with the South
Minnetonka Police Department stopped her squad car behind Birkland’s vehicle in the
southbound left-turn-only lane on the corner of Christmas Lake Road and Highway 7 in
Shorewood. As the light changed, the officer observed Birkland’s vehicle turn left into the
outermost lane of eastbound Highway 7, a four-lane roadway with two eastbound lanes of
travel. The officer initiated a traffic stop, approached Birkland’s vehicle, and told Birkland
that she stopped his vehicle because he turned into the far right lane of Highway 7. After
Birkland was arrested and submitted to a breath test, the state revoked his driver’s license.
Birkland petitioned for license reinstatement. During the implied-consent hearing,
the officer testified that, “It had appeared that [Birkland’s vehicle] turned directly into the
far right lane and it touched the center line partially being in the left lane, but the majority
of the vehicle, the entirety of the time, was in the right lane.” Although the officer uses the
term centerline, it is clear from her testimony and the record that she is referring to the lane
line between the two eastbound lanes of Highway 7, not a centerline between the east and
westbound lanes. The officer continued to testify that she stopped Birkland because she
believed that both his turn into the outermost lane and crossing of the lane line were traffic
violations.

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The district court affirmed the revocation of Birkland’s driving privileges ,
concluding that the officer possessed reasonable, articulable suspicion of a traffic violation
to stop Bi rkland’s vehicle. The district court concluded that Minn. Stat. § 169.19,
subd. 1(b), required Birkland to turn into the inner most lane. Further, the district court
found that “[The officer] also testified that [Birkland’s] vehicle may have hit the center of
the intersection as it turned directly into the outermost right -hand lane (eastbound of
Highway 7).” (Emphasis added.) Based on this finding, the district court also concluded
that the officer articulated a second traffic violation pursuant to Minn. Stat. § 169.18,
subd. 7(a) (2018). This appeal follows.
ISSUE
Did the district court err in ruling that the officer had reasonable, articulable
suspicion of a traffic violation to have stopped Birkland’s vehicle?

ANALYSIS
Both the United States and Minnesota Constitutions prohibit unreasonable searches
and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. However, an officer may
conduct a brief investigatory stop if they have reasonable, articulable suspicion that
“criminal activity may be afoot .” Terry v. Ohio , 392 U.S. 1, 30 , 88 S. Ct. 1868, 1884
(1968); See also S tate v. Diede , 795 N.W.2d 836, 842 (Minn. 2011) . The reasonable -
suspicion standard is not high but requires “at least a minimal level of objective
justification for making the stop.” Diede, 795 N.W.2d at 843 (quoting State v. Timberlake,
744 N.W.2d 390, 393 (Minn. 2008) ). “Gene rally, if an officer observes a violation of a
traffic law, no matter how insignificant the traffic law, that observation forms the requisite

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particularized and objective basis for conducting a traffic stop.” State v. Anderson , 683
N.W.2d 818, 823 (Minn. 2004). The burden is on the state to “show that the officer had a
particularized and objective basis for suspecting the particular person stopped of criminal
activity.” Wilkes v. Comm’r of Pub. Safety , 777 N.W.2d 239, 243 (Minn. App. 2010)
(quotation omitted).
Appellate courts review a district court’s determination of reasonable suspicion
de novo. State v. Munson , 594 N.W.2d 128, 135 ( Minn. 1999). Findings of fact will be
upheld unless they are clearly erroneous. Wilkes, 777 N.W.2d at 243.
The district court found that the officer articulated reasonable suspicion to stop
Birkland’s vehicle based on two traffic violations: turning into the outermost lane on a left-
hand turn, in violation of Minn . Stat. § 169.19, subd. 1(b), and crossing the lane line, in
violation of Minn. § 169.18, subd. 7(a). We analyze each traffic statute in turn.
A. Turning left into the o utermost lane does not violate Minn. Stat.
§ 169.19, subd. 1(b).

The statute reads as follows:
Approach for a left turn on other than one-way roadways shall
be made in that portion of the right half of the roadway nearest
the centerline thereof, and after entering the intersection the
left turn shall be made so as to leave the intersection to the right
of the centerline of the roadway being entered . Whenever
practicable the left turn shall be made in that portion of the
intersection to the left of the center of the intersection.

Minn. Stat. § 169.19, subd. 1(b) (emphasis added) . Birkland argues th at the statute is
unambiguous, and that a plain reading shows that the statute is silent on which lane the
driver must enter after turning. We agree.

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We review statutory interpretation de novo. Kruse v. Comm’r of Pub. Safety , 906
N.W.2d 554, 558 (Minn. App. 2018). Appellate courts apply the plain meaning of the
statute if it is unambiguous. See State v. Struzyk, 869 N.W.2d 280, 284-85 (Minn. 2015).
“The objective of statutory interpretation is t o ascertain and effectuate the L egislature’s
intent.” Id. at 284; see Minn. Stat. § 645.16 (2018).
The focus of the subparagraphs in section 169.19 is the location from where “[t]he
driver of a vehicle intending to turn at an intersection” shall depart, and to where the driver
shall arrive after the turn. Minn. Stat. § 169.19, subd. 1 (2018). The relevant portion of
subparagraph (b), when identifying to where the driver must arrive, directs the driver “ to
leave the intersection to the right of the centerline of the roadway being entered .” Id.,
subd. 1(b) (emphasis added). This unambiguous provision is silent as to which lane to the
right of the roadway a driver must enter. Appellate courts do not add terms or meaning to
unambiguous statutes. State v. Expose, 872 N.W.2d 252, 259 (Minn. 2015).
As further support for this as the plain meaning of the statute, the legislature did
include other subparagraphs in the same subdivision in which it directs a driver leaving an
intersection to turn into a specific lane. See, e.g., Minn. Stat. § 169.19, subd. 1(a) (stating
“a right turn shall be made as close as practicable to the right -hand curb or edge of the
roadway”); id., subd. 1(e) (stating that when turning left from a one-way street onto another
one-way street the turn “shall be made as close as practicable to the left-hand curb or edge
of the roadway”).
The district court relied on the second sentence of subparagraph (b) in concluding
Birkland violated this statute , which states, “Whenever practicable the left turn shall be

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made in that portion of the intersection to the left of the center of the intersection.” Id.,
subd. 1(b). The plain meaning of this sentence, however, does not address the question to
where a driver must enter the roadway after turning , which is fully re solved by the first
sentence. Instead, this sentence refers to the intersection from where a driver is turning. A
left turn to either the inner most or outermost lane of the roadway to be traveled will be
made “to the left of the center of the intersection.” Id.
Finally, although neither party argues that an officer’s reasonable mistake of law
can form the basis for reasonable suspicion, we have a responsibility to apply controlling
precedent even if it is not cited by the parties. State v. Hannuksela, 452 N.W.2d 668, 673
n.7 (Minn. 1990). In Heien v. North Carolina, the United States Supreme Court held that
officers may base their reasonable suspicion on their objectively reasonable mistake of
law.1 574 U.S. 54, 60, 135 S. Ct. 530, 536 (2014). However, an officer’s belief is not
objectively reasonable if a plain reading of the statute does not criminalize the conduct or
if the statute has been previously interpreted to resolve ambiguity. Id. at 67-68, 135 S. Ct.
at 540.
In this proceeding, t he distr ict court found in a footnote that, “Even assuming
arguendo, that [the officer] misinterpreted the law at issue, it would be a reasonable mistake
of law” and, therefore, the traffic stop should not be found improper. We disagree. We

1 In cases decided before Heien, our supreme court has stated that a reasonable mistake of
law cannot give rise to reasonable suspicion. State v. Anderson , 683 N.W.2d 818, 823
(Minn. 2004); State v. George, 557 N.W.2d 575, 578-79 (Minn. 1997). In neither of these
cases does the supreme court base its reasoning explicitly on the Minnesota constitution
and, therefore, we must apply the Heien decision to our vehicle-stop analysis.

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conclude that an unambiguously plain reading of Minn. Stat. § 169.19, subd. 1(b), does not
dictate into which lane a left turning driver must enter. Therefore , it is not an objectively
reasonable mistake of law for the officer to stop Birkland’s vehicle for turning into the
outermost lane.2
The district court erred in ruling that turning into the outermost lane violates Minn.
Stat. § 169.19, subd. 1(b).
B. The district court erred in concluding that the officer articulated
reasonable suspicion based on a violation of Minn. Stat. § 169.18,
subd. 7(a).

The district court found that the officer also articulated reasonable suspicion of a
traffic violation based upon Minn. Stat. § 169.18, subd. 7(a). The district court stated:
Additionally, the Court finds [the officer’s] testimony that
[Birkland] may have crossed over the centerline as he made the
turn directly into the outermost righ t-hand lane credible.
[Birkland] necessarily had to cross the centerline of eastbound
Highway 7 in order to turn in the outermost, right-hand lane of
eastbound Highway 7. This is a sepa rate and independent
violation.

(Emphasis added.) Subdivision 7 of Minnesota Statutes section 169.18 (2018) states that
“a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not
be moved from the lane until the drive r has first ascertained that such movement can be

2 This court addressed the same issue in the unpublished case State v. Kelley , No. A18 -
1274, 2019 WL 1431921 (Minn. App. Apr. 1, 2019) and, as with our analysis, arrived at
the same conclusion: “In sum, the plain language of Minn. S tat. § 169.19, subd. 1(b) does
not require that a left turn be completed in the lane closest to the centerline of the roadway
being entered.” Although unpublished and, therefore, not precedential, we find this case
persuasive. See State v. Roy , 761 N.W.2d 883, 888 (Minn. App. 2009), review denied
(Minn. Dec. 14, 2009).

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made with safet y.” A review of the record indicates that the facts as articulated by the
officer and the district court’s findings of fact do not support this statutory basis to stop
Birkland’s vehicle.
First, we note that the district court found that Birkland drove “ directly into the
outermost right-hand lane.” (Emphasis added.) This means that Birkland was never
traveling within the innermost lane , which would be necessary to invoke a potential
violation of Minn. Stat. § 169.18, subd. 7(a). The factual finding that Birklan d drove
directly into the outer most lane is also consistent with the officer’s statement to Birkland
at the time of the stop , explaining that the officer stopped the vehicle for turning into the
outermost lane. Second, the district court found that, based on the officer’s testimony,
Birkland “may” have crossed the lane line. Reasonable suspicion can be based on an
officer’s reasonable belief but not “a mere hunch.” State v. George, 557 N.W.2d 575, 578
(Minn. 1997). Whether something may have happened does not provide an officer with
reasonable suspicion of a law violation. Third, the statute allows a driver to change lanes
once the driver can do so safely. The district court’s findings, which are supported by the
record, indicate no other vehicles were present at this intersection . If such a lane change
occurred, there is no indication Birkland did so unsafely.
D E C I S I O N
The district court incorrectly held that the officer had reasonable , articulable
suspicion to stop Birkland because Minn. Stat. § 169.19, subd. 1(b), does not require
drivers to enter the innermost lane of the roadway following a left turn and the record does
not support a conclusion that Birkland violated Minn. Stat. § 169.18, subd 7(a). For these

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reasons, we reverse and remand to the district court to rescind Birkland’s license
revocation.
Reversed and remanded.