Kathleen Margaret Eileen Ochs, 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This opinion will be unpublished and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
A19-1577

Kathleen Margaret Eileen Ochs, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed May 4, 2020
Affirmed
Cochran, Judge

Dakota County District Court
File No. 19AV-CV-19-1560

Ryan J. Grove, Rogosheske, Rogosheske & Atkins, PLLC, South St. Paul, Minnesota
(for appellant)

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

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and
Segal, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this appeal from the district court’s order sustaining the revocation of her driver’s
license, appellant Kathleen Margaret Eileen Ochs argues that the district court erred when

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it concluded that the officer had a legal basis to expand the scope of the initial traffic stop
and pursue a driving-while-impaired (DWI) investigation. We affirm.
FACTS
At 9:40 p.m. on a Friday night, an officer stopped Ochs for a suspected
driving-after-revocation violation. The officer approached the car and asked the driver if
she was Kathleen Ochs, the registered owner of the vehicle. In response, Ochs laughed
and looked away. After further questions from the officer, Ochs confirmed that she did not
have a valid driver’s license or insurance. The officer noticed that Ochs had glassy eyes,
avoided eye contact, and appeared to be angr y that the officer had pulled her over. The
officer knew that glassy eyes can indicate impairment. He also saw that Ochs had a child
in the car. This initial interaction lasted abou t twenty-five seconds. The officer returned
to his squad car to print a citation for driving after revocation.
From his squad car, the officer observed Ochs in the driver’s seat “jumping around”
and acting erratically. While wa tching Ochs from his squad car, the officer realized that
Ochs was exhibiting behaviors similar to those he observed during a previous encounter
with Ochs a few months earlier. During that encounter, Ochs was intoxicated. The officer
shared his concerns with his partner, and decided to confir m whether Ochs was impaired
before giving her a citation for driving after revocation.
The officer approached the car and asked Ochs if she had been drinking alcohol.
Ochs, while crying, denied drinking alcohol. The officer asked if she had a “single drop,”
and Ochs again denied drinking alcohol. The officer then performed a modified horizontal
gaze nystagmus (HGN) test while Ochs was seat ed in her car. The o fficer observed that

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Ochs’s eyes were jerking, which indicated impairment. The officer asked Ochs to exit the
car to conduct full field sobriety testing. Ochs failed field sobriety tests, and a preliminary
breath test. As a result, the officer arrested Ochs for DWI.
Respondent Commissioner of Pub lic Safety subsequently revoked Ochs’s driver’s
license. Ochs petitioned the district court to rescind the revocation order, arguing that the
officer unlawfully exceeded the initial scope of the traffic stop and therefore the revocation
was unlawful. Following a hearing and after consideri ng written memoranda and the
evidence in the record, the district court sustained the revocation. The district court
concluded that the expansio n of the stop was supported by a reasonable, articulable
suspicion that Ochs was driving while impaired and therefore was lawful.
Ochs appeals.
D E C I S I O N
Ochs challenges the district court’s order sustaining the revocation of her driver’s
license. Ochs does not contes t the validity of the initial stop for driving after revocation.
Instead, Ochs argues that the district court e rred in concluding that the expansion of the
scope of the stop was justified by a reasonable, articulable suspicion that Ochs was driving
under the influence. Ochs maintains that the district court’s conclusion was based on
erroneous factual findings and that the officer had no legal basis for expanding the stop.
We review de novo a district court’s ruling on whether an officer had a reasonable,
articulable suspicion for an investigatory stop. Hoekstra v. Comm’r of Pub. Safety ,
839 N.W.2d 536, 539 (Minn. App. 2013); see also Harrison v. Comm’r of Pub. Safety ,
781 N.W.2d 918, 920 (Minn. App. 2010). We re view the district court’s findings of fact

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for clear error and will not reverse unless this court is “left with a definite and firm
conviction that a mistake has been committed.” Jasper v. Comm’r of Pub. Safety ,
642 N.W.2d 435, 440 (Minn. 2002) (quotation omitted). A factual finding “is not clearly
erroneous if it is reasonably supporte d by the evidence as a whole.” State v. Barshaw,
879 N.W.2d 356, 366 (Minn. 2016). And we defer to district court’s credibility
determinations. State v. Klamar , 823 N.W.2d 687, 691 (Minn. App. 2012) (citing
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
Both the United States and Minnesota Constitutions protec t individuals from
“unreasonable searches and seizures” by the go vernment. U.S. Const. amend. IV; Minn.
Const. art. 1, § 10. “Generally, warran tless searches are per se unreasonable.”
State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008). However, a law enforcement officer
may initiate a limited investigatory traffic stop without a warrant if the officer has a
reasonable, articulable suspicion of criminal activity. State v. Wiegand, 645 N.W.2d 125,
135 (Minn. 2002). The scope of a traffic-stop investigation mu st be limited to the initial
justification for the stop. Id. Any expansion of the scope or duration of a traffic stop “must
be justified by a reasonable articulable suspicion of other criminal activity.” State v. Fort,
660 N.W.2d 415, 419 (Minn. 2003) (quotation omitted).
The reasonable-suspicion standard is “not high.” State v. Diede, 795 N.W.2d 836,
843 (Minn. 2011) (quo tation omitted). Reasonable suspic ion is a lower standard than
probable cause, but it still “requires at least a minimal level of objective justification.”
State v. Timberlake , 744 N.W.2d 390, 393 (Minn. 2008) (quotation omitted); see also
Hoekstra, 839 N.W.2d at 538-39. It is an objec tive standard that must be “determined

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under the totality of the circumstances.” Paulson v. Comm’r of Pub. Safety ,
384 N.W.2d 244, 246 (Minn. App. 1986) (citing State v. Lande, 350 N.W.2d 355, 357-58
(Minn. 1984)).
For a DWI investigation to be lawful, the officer must reasonably suspect that the
person may have been violating the impaired-driving laws, and the officer must be able to
sufficiently articulate a factual basis for his suspicion. Paulson, 384 N.W.2d at 246. “The
officer need not be absolutely certain of the possibility of criminal activity, but he cannot
satisfy the test of reasonableness by relying on an inchoate and unparticularized suspicion
or hunch.” State v. Schrupp, 625 N.W.2d 844, 847 (Minn. App. 2001) (quotation omitted),
review denied (Minn. July 24, 2001). Officers may make assessments based on the totality
of the circumstances, “appropriately relying on inferences and deductions that might elude
someone without similar training.” Wilkes v. State , 777 N.W.2d 239, 244 (Minn.
App. 2010).
In its order sustaining the revocation of Ochs’s driver’s license, the district court
found that the officer observed that Ochs had glassy eyes, avoi ded eye contact, and
appeared angry. The district court also found that the officer “observed [Ochs] flailing and
demonstrating erratic behavior,” consistent with a prior encounter w ith the officer during
which Ochs was intoxicated. Based on the totality of the circumstances, the district court
concluded that “the expansio n of the stop was supported by a reasonable, articulable
suspicion of illegal activity and therefore wa s proper.” In reaching this conclusion, the
district court relied on the officer’s testimony, which it found to be credible.

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Ochs first argues that the district court cl early erred when it fo und that the officer
“observed [Ochs] flailing and demonstrating erratic behavio r.” Ochs’s argument lacks
merit. At the hearing, the officer testified that after speaking with Ochs, he returned to his
squad car to print a citation for driving after revocation. The officer further testified that
while preparing the citation, the officer was ab le to see Ochs in her driver’s seat and
observed her “jumping around” and acting erratically. The officer testified that he can see
people “pretty well” and observe “a lot” when a car is parked in front of his squad car. At
the time, the officer’s squad car was parked directly behind Ochs’s vehicle and the squad
car’s headlights were on, illuminating Ochs’s vehicle. The officer’s testimony supports
the district court’s finding that the officer observed Ochs flailing and acting erratically.
Ochs acknowledges the officer’s testimony but argues that the district court erred
by finding the officer’s testimony credible. Ochs relies on the squad car video, contending
that the video does not support the officer’s testimony. But Ochs do es not argue and the
record does not suggest that the officer’s view of Ochs from the squad car was identical to
the limited perspective of the squad car video. Further, the video is not inconsistent with
the officer’s testimony. The video shows Ochs moving in and out of view. After reviewing
the evidence in the record, the district court found the officer’s testimony credible. Because
we afford considerable deference to the dist rict court’s credibility determination and the
squad car video does not clearly contradict th e officer’s testimony, we conclude that the
district court’s factual finding regarding th e officer’s observation of Ochs “flailing and
demonstrating erratic behavior ” was not clearly erroneous. See Klamar , 823 N.W.2d
at 691 (“Deference must be gi ven to the district court’s credibility determinations.”); see

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also Barshaw , 879 N.W.2d at 366 (a factual finding “is not clearly erroneous if it is
reasonably supported by the evidence as a whole”).
Ochs next argues that the district court erred when it concluded that the expansion
of the stop was supported by a reasonable, ar ticulable suspicion that Ochs was driving
while impaired. Ochs contends that the district court’s conclusion is erroneous because the
officer’s suspicion was based solely on Ochs “flailing and demonstrating erratic behavior,”
which Ochs maintains is not supported by the record. According to Ochs, the officer had
only a “hunch” that Ochs was driving under the influence. We are not persuaded.
First, as discussed above, the district court’s finding that the officer observed Ochs
“flailing and demonstra ting erratic behavior” is supported by the record. Second, the
officer did not rely solely on his observation of Ochs flailing and demonstrating erratic
behavior when he concluded that he had a basis to expand the stop. The officer testified to
a number of facts that support a reasonable, articulable suspicion that Ochs was driving
under the influence. Again, th e officer testified that Ochs had glassy eyes. The officer
further testified that glassy eyes can indicat e impairment. The officer also observed that
Ochs was trying to avoid eye contact when he first spoke with her and testified that, based
on his experience, the most common reason a person avoids eye contact is if the person has
been drinking or doing drugs and wants to avoid showing the officer his or her eyes. The
officer further testified that when he was in his squad car completing the citation, he
observed Ochs acting erratically. Based on his observations and his familiarity with Ochs
from an encounter a few months earlier, the offi cer suspected that Ochs was impaired at
the time of the traffic stop. Officers may make “inferences and deductions that might elude

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someone without similar training.” Wilkes, 777 N.W.2d at 244. Moreover, the stop
occurred on a Friday ni ght around 9:40 p.m. See State v. Lee , 585 N.W.2d 378, 383
(Minn. 1998) (considering the time of day as one factor in determining whether warrantless
blood test was justified by probable cause). Considering the totality of the circumstances,
we conclude that the officer had a reasonable, articulable suspicion that Ochs was driving
while impaired and that the district court th erefore did not err in concluding that the
expansion of the stop was justified.
And even if we assume that the district court’s finding regarding Ochs “flailing and
demonstrating erratic behavior” was clea rly erroneous, the to tality of the other
circumstances are more than sufficient to support the expansion of the stop. See
Otto v. Comm’r of Public Safety, 924 N.W.2d 658, 661 (Minn. App. 2019) (noting that an
officer needs only one objective indication of impairment to expand the scope of the stop)
(citing Holtz v. Comm’r of Public Safety, 340 N.W.2d 363, 365 (Minn. App. 1983)).
In sum, we conclude that the factual fi ndings challenged by Oc hs are not clearly
erroneous. We further conclude that the distri ct court did not err in its determination that
the officer had a lawful basis to expand the stop.
Affirmed.