State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1579

State of Minnesota,
Appellant,

vs.

Isaiah Kerry Toussaint,
Respondent.

Filed June 28, 2021
Affirmed
Frisch, Judge

Hennepin County District Court
File No. 27-CR-20-1198

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James R. Rowader, Jr., Minneapolis City Attorney, David S. Bernstein, Assistant City
Attorney, Minneapolis, Minnesota (for appellant)

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

Tayler J. Rahm, Rahm Law, PLLC, Minnetonka, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Ross, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
The state appeals the district court’s pretrial order granting respondent’s motion to
suppress evidence obtained after officers expanded a traffic stop. We affirm.
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FACTS
At approximately 1:50 a.m. on January 13, 2020, Officer Rachel Batinich and Field
Training Officer David Nerling stopped respondent Isaiah Toussaint for minor traffic
violations.1 Officer Batinich approached the driver’s side of Toussaint’s vehicle and
Officer Nerling approached the passenger side. Toussaint was coherent, responsive,
compliant, and respectful with officers. He answered all questions asked , followed all
directions from the officers, and provided his driver’s license and proof of insurance.
While Toussaint retriev ed his proof of insurance, Officer Nerling made a hand gesture
directed toward Officer Batinich, after which Officer Batinich asked Toussaint if he had
been drinking. Toussaint replied that he had not.
Officer Nerling then walked toward the back of Toussaint’s car and spoke with two
other officers for approximately 30 seconds . Officer Nerling then instructed Officer
Batinich to “tell him to get out .” Toussaint responded, “No problem, sir.” As Toussaint
exited the car with his hands in the air, an other officer grabbed Toussaint and pulled him
out of his vehicle. Officers Batinich and Nerling both pat searched Toussaint.
Officer Nerling then instructed Toussaint to stand behind his vehicle, and Toussaint
complied. Officer Nerling asked Toussaint, “ So you haven’t had anything to drink all

1 The officers described the alleged traffic violations in different ways. At the initiation
of the traffic stop, Officer Batinich told Toussaint that he was “going fast and blew through
[a] stop sign.” After removing Toussaint from the vehicle, Officer N erling told Toussaint
he was “all over the road, . . . speeding, and also . . . went through a stop sign.” At the
pretrial hearing, Officer Batinich testified the initial stop occurred because Toussaint was
driving too fast for the road conditions and that Toussaint “rolled through two stop signs.”
Officer Nerling also testified that Toussaint was driving too fast given the road conditions
and failed to make a complete stop at two stop signs.
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night?” Toussaint responded that he had not. Officer Nerling then informed Toussaint that
Officer Batinich was going to do a couple of tests “mainly because of [Toussaint’s] driving
conduct.” Officer Nerling said, “I don’t know if you are on the phone or whatever the deal
is, but . . . what was it because you’re all over the road, you’re speeding, and also you went
through a stop sign?” Toussaint stated, “I was following my GPS.”
Although several additional events occurred thereafter, the district court limited its
consideration of the suppression motion to the foregoing events.
On January 14, 2020, the state charged Toussaint with one count of second -degree
gross misdemeanor driving while impaired (DWI)-refusal to submit to a breath test,
pursuant to Minn. Stat. § 169A.20, subd. 2(1) (2020), and one count of third -degree gross
misdemeanor DWI-operation of a motor vehicle under the influence of alcohol, pursuant
to Minn. Stat. § 169A.20, subd. 1(1) (2020). Toussaint moved to suppress all evidence
obtained after the traffic stop expanded into a DWI investigation. The district cour t held
an evidentiary hearing where Officers Batinich and Nerling testified.
In determining the propriety of the expansion of the stop, t he district court
considered Officer Batinich’s body -camera footage up to the point where field sobriety
tests began. Officer Nerling testified that the initial stop occurred because Toussaint was
driving too fast given the road conditions, he estimated Toussaint to be driving five miles
over the speed limit, and Toussaint failed to make a complete stop at two stop sign s.
Officer Nerling testified that he ordered Toussaint to be removed from the vehicle because
he “could smell the odor of an alcoholic beverage coming from the vehicle.” Officer
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Batinich testified that she observed Toussaint to have bloodshot and glossy eyes, slurred
speech, and slow responses.
The district court granted Toussaint’s motion to suppress evidence, finding Officer
Nerling and Officer Batinich’s testimony about their reasons for expanding the stop not
credible and concluding the officers di d not have the requisite reasonable, articulable
suspicion to expand the traffic stop. This appeal follows.
DECISION
In an appeal by the state of a pretrial order of the district court, an appellate court
will only reverse if the state can “clearly and unequivocally show both that the trial 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) (quotations omitted). “We view critical impact as a threshold issue and will
not review a pretrial order absent such a showing.” State v. Osorio, 891 N.W.2d 620, 627
(Minn. 2017) (quotations omitted). “Critical impact has been shown not only in those cases
where the lack of the suppressed evidence completely destroys the state’s case, but also in
those cases where the lack of the suppressed evidence significantly reduces the likelihood
of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987).
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determination s de novo.” State v. Gauster , 752 N.W.2d 496, 502
(Minn. 2008) (quotation omitted).
5
I. The district court did not clearly err in d iscrediting Officer Nerling’s
testimony.

We begin by emphasizing that the district court “is in the best position to evaluate
witness credibility,” and we will not disturb those findings so long as they are supported
by “reasonable evidence .” Bobo v. State , 860 N.W.2d 681, 684 -85 (Minn. 2015). We
review such credibility determinations for clear error. Id. at 684. Clear error is a “high
threshold,” and “[w] e will not disturb the [district] court’s findings of fact if reasonable
evidence supports those findings.” Id. at 684-85 (quotation omitted). We are in no position
as an appellate court to dissect all reasonable inferences that might have been drawn from
the record and second guess the district court’s judgment as to the credibility of witness
testimony. See id. Rather, it is our duty t o affirm reasonable findings and credibility
determinations made by the district court, which is in a superior position to make such
determinations, unless clearly against the weight of the evidence. See id. (explaining the
high deference given to the dis trict court’s findings of fact and credibility determinations
because it is in best position to make those findings); see also State v. Evans, 756 N.W.2d
854, 870 (Minn. 2008) (stating “great deference” is given to a district court’s findings of
fact and they will not be set aside “unless clearly erroneous”).
We review a district court’s factual findings with respect to its determination of the
legality of an officer’s expansion of a traffic stop for clear error. State v. Smith, 814 N.W.2d
346, 350 (Minn. 2012). “The clearly erroneous standard requires that we be left with the
definite and firm conviction that a mistake has been made.” Evans, 756 N.W.2d at 870
(quotation omitted). Clear error is a “high threshold,” and “[w] e will not disturb the
6
[district] court’s findings of fact if reasonable evidence supports those findings. ” Bobo,
860 N.W.2d at 684-85 (quotation omitted).
The district court found the testimony from Officers Nerling and Batinich regarding
their reasons for expanding the stop not credible and that “[b]ecause there was no
reasonable basis for expanding the stop, the stop became invalid when the officers grabbed
Mr. Toussaint and pulled him out of the vehicle.” The district court specifically found that
Officer Nerling’s testimony that he smelled alcohol was not credible because Officer
Nerling did not mention this observation (1) to any of the five other officers present, (2) to
Toussaint, or (3) as a basis for administering field sobriety tests.
The state argues that the district court clearly erred because it found all other
portions of Officer Nerling’s testimony to be credible, it did not specifically weigh witness
credibility factors set forth in a model jury instruction, no conflicting testimony was given
at the evidentiary hearing, and “there is substantial and unchallenged evidence that directly
contradicts the district court’s findings.” Notably, the state does not argue that the district
court erred in discrediting Officer Batinich’s testimony about her claimed observations of
Toussaint having bloodshot and glossy eyes, slurred speech, and slow responses.
As a threshold matter, the state cites no authority in support of its contention that a
district court is required to find the entirety or none of a witness’s testimony credible, that
a district court is required to find a witness credible if conflicting testimony is not offered,
or that a district court commits clear error when it does not analyze certain witness
credibility factors set forth in a model jury instruction. Fact-finders are not required to
check a box naming a witness credible or not credible, either accepting all statements as
7
true or none as true. Additionally, the district court did not and was not required to make
findings that all of Officer Nerling’s testimony was credible except for his testimony about
the perceived odor of alcohol. That the district court focused only on evidence relevant to
the suppression motion —at the state’s request, no less —does not mean that the district
court may not have had other reasons for discrediting testimony. Indeed, the state does not
allege that the district court committed clear error when it discredited that portion of Officer
Batinich’s testimony regarding her alleged observations of signs of intoxication.2
The record supports the district court’s finding that Officer Nerling did not credibly
testify that he smelled alcohol. The district court considered testimony from both officers
together with the footage from Officer Batinich’s body -worn camera in making its
determination. At the evidentiary hearing, Officer Nerling testified that when Toussaint
rolled down his passenger window, Officer Nerling “could smell the odor of an alcoholic
beverage coming from the vehicle.” Officer Nerling testified that he was positioned above
the window and would have had to bend down to see Toussaint’s face. Officer Batinich
testified that, although she stood closer to Toussaint than Officer Nerling, she did not smell
alcohol, but noted that her “nose was very stuffed” from a cold. Officer Nerling testified

2 The state suggests that because the district court only co nsidered the exhibit containing
footage from Officer Batinich’s body-worn camera through the initiation of field sobriety
testing that the remainder of the footage in the exhibit is not “evidence.” This argument is
unavailing. Our rules provide that the record on appeal consists of “the documents filed in
the trial court, the exhibits, and the transcript of the proceedings. ” Minn. R. Civ. App.
P. 110.01. In other words, the entirety of an exhibit received into evidence is part of the
record on appeal . In any event, we need not consider the camera footage beyond the
initiation of field sobriety testing because the district court’s credibility determinations are
supported by limited camera footage considered by the district court and the remainder of
the record considered by the district court.
8
that the hand gesture he made was intended to indicate to Officer Batinich that Officer
Nerling “thought [Toussaint] may have been drinking” and to prompt Officer Batinich to
“get [Toussaint] out of the car.”
Yet after Toussaint denied drinking, rather than removing Toussaint from the car or
stating that he smelled alcohol, Officer Nerling asked Toussaint several questions about
what he was doing in the area and then walke d toward the back of the vehicle to converse
with other officers. And on cross-examination, Officer Nerling professed that he could not
recall, despite having be en shown body-worn camera footage, whether he mentioned the
odor of alcohol to the other offic ers. There is no evidence in the record showing that he
mentioned an odor of alcohol to them. It was not until Officer Nerling had stood near the
rear of Toussaint’s car for approximately 30 seconds, nearly two minutes after Officer
Nerling made the hand gesture toward Officer Batinich, that Officer Nerling suddenly, and
without explanation, instructed Officer Batinich to direct Toussaint to exit his vehicle.
Based on these facts, the testimony of Officer Nerling on both direct and cross -
examination, and the district court’s conclusion that Officer Batinich’s testimony was not
credible (which the state does not dispute on appeal), we see no clear error by the district
court in discrediting Officer Nerling’s testimony. The record supports the findin g that
Officer Nerling did not mention his observation to Toussaint. The credited record evidence
supports the finding that Officer Nerling did not mention smelling alcohol to other officers
at the scene. And although the district court also discredited Officer Nerling’s testimony
because he did not mention smelling alcohol before administering the preliminary breath
test well after the expansion of the traffic stop, the district court’s finding s necessarily
9
discredited Officer Nerling’s testimony that he had Toussaint removed from his vehicle
because he “could smell the odor of an alcoholic beverage coming from the vehicle.” We
cannot say that any of these specific findings are clearly erroneous.
The district court made other findings in support of the c onclusion that the officers
were acting on a mere hunch that they would find something to support the expansion of
the stop after the fact. See State v. Diede , 795 N.W.2d 836, 843 -44 (Minn. 2011)
(concluding reasonable, articulable suspicion must exist prior to a search and seizure). The
district court specifically found Officer Nerling’s “observation” of the odor of alcohol not
credible. Additionally, the district court specifically found that other indicia of impairment,
including bloodshot and glossy eyes, slurred speech , and slow responses, were not
supported by the body -worn camera footage. The district court also noted that neither
officer could corroborate the other officer’s alleged obse rvations of indications of
impairment.
These findings, too, are supported by the record. The district court could have
reasonably found suspect Officer Nerling’s certainty that he smelled alcohol compared
with his inability to recall other events occurrin g within seconds of the time he allegedly
detected an odor of alcohol, even after watching footage multiple times in the presence of
the fact-finder in an effort to refresh his memory. Although Officer Batinich testified that
she had a bad cold at the time that interfered with her ability to smell, the district court may
have reasonably considered her position in closer proximity to Toussaint and that an odor
that was not strong enough to penetrate through Officer Batinich’s “stuffed up” nostrils
may not have been strong enough to carry over to the passenger-side window where Officer
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Nerling stood. The state argues that Officer Nerling’s hand gesture was an indication that
he smelled alcohol, but the district court did not find this explanation credible. And we see
no clear error by the district court in questioning the credibility of Officer Nerling when he
failed to state to anyone that he smelled alcohol and his statements and actions at the scene
were not consistent with his testimony.
Based on the record, including the limited body-worn camera footage, and the high
deference we give to a district court’s credibility findings, we cannot find with a “definite
and firm conviction that a mistake has been made” by the district court in discrediting the
testimony of Officer Nerling. See Evans, 756 N.W.2d at 870.
II. The district court did not err in concluding th at the officers did not have
reasonable, articulable suspicion to expand the scope of the traffic stop.
“We undertake a de novo review to determine whether a search or seizure is justified
by reasonable suspicion or by probable cause.” State v. Burbach , 706 N.W .2d 484, 487
(Minn. 2005). The United States and Minnesota Constitutions protect individuals against
“unreasonable searches and seizures” by the government. U.S. Const. amend. IV; Minn.
Const. art. I, § 10. Warrantless searches and seizures are presumpt ively unreasonable.
State v. Lugo, 887 N.W.2d 476, 486 (Minn. 2016). If officers seize a person or evidence
in violation of the constitution, that evidence must be suppressed. Diede, 795 N.W.2d at
842. An officer may initiate a limited , warrantless investigatory stop if the officer can
articulate specific facts supporting a reasonable, articulable suspicion of criminal activity.
Id. at 842-43. “[A]ny 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
11
415, 419 (Minn. 2003) . When expanding a traffic stop, an officer must be able to “point
to specific and articulable facts which, together with reasonable inferences from those
facts, reasonably warrant the intrusion.” Paulson v. Comm’r of Pub. Safety, 384 N.W.2d
244, 246 (Minn. App. 1986).
Police must be able to articulate more than an inchoate and
unparticularized suspicion or hunch of criminal activity. They
must articulate a particularized and objective basis for
suspecting the particular person stopped of criminal activity.
That standard is met when an officer observes unusual conduct
that leads the officer to reasonably conclude in light of his or
her experience that criminal activity may be afoot.
State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotations omitted). An officer
who detects the odor of alcohol during a traffic stop may have “reasonable suspicion of
criminal activity” sufficient to expand the stop for further investigation. State v. Lopez ,
631 N.W.2d 810, 814 (Minn. App. 2001), review denied (Minn. 2001).
After discrediting the testimony from Officers Nerling and Batinich regarding their
observations about the smell of alcohol and signs of impairment, the district court
concluded that “[t]he [s]tate offered no credible evidence of other circumstances that
warranted the expansion” from a traffic stop to a DWI investigation and “[b]ecause there
was no reasonable basis for expanding the stop, the stop became invalid when the officers
grabbed Mr. Toussaint and pulled him out of the vehicle.” The state argues th e district
court erred in reaching this conclusion because “[w]hen considering the totality of the
circumstances—the driving conduct at that time of day in addition to the odor of an
alcoholic beverage —the officers objectively had reasonable, articulable suspicion to
expand the scope of the stop and conduct a driving while impaired investigation.”
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In the absence of the discredited testimony from Officers Batinich and Nerling, we
are left to consider whether minor driving offenses occurring early in the morning provided
officers with a “reasonable, articulable sus picion” that Toussaint was driving under the
influence of alcohol. See Fort, 660 N.W.2d at 419. At the evidentiary hearing, Officer
Nerling testified that Toussaint was not swerving and slowed down at each stop sign.
Officer Batinich admitted that coming to a complete stop would have been difficult given
the road conditions and testified that the claimed minor offenses by Toussaint were often
committed by sober people. Indeed, immediately before conducting field sobriety tests,
Officer Nerling asked Toussaint whether his phone use caused the traffic infractions. And
Officer Nerling testified that Toussaint pulled his vehicle over when prompted by flashing
lights and parked in a reasonable location. During the stop, Toussaint denied drinking, was
respectful and cooperative, and answered all questions directly, appropriately, and
coherently. The state cites no additional facts in support of an expansion of the traffic stop
and cites no authority that minor traffic offenses occurring early in the morning are
sufficient to meet the standard of objectively reasonable suspicion required to expand a
traffic stop into a DWI investigation . The cited minor traffic infractions occurring in the
early morning hours are not the type that would ordinarily indicate impaired driving, and
therefore, the officers had no reasonable, articulable suspicion to expand the traffic stop to
conduct a DWI investigation.
Affirmed.