Opinion
No. C6-02-1176.
Filed December 31, 2002.
Appeal from the District Court, Hennepin County, File No. 02036306.
Mike Hatch, Attorney General, and Kenneth N. Potts, Shorewood City Attorney, (for appellant)
David L. Valentini, Valentini Associates, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Respondent Jessica Ann Linn was charged with third-degree driving while impaired and third-degree alcohol- concentration over 0.10 within two hours of driving. After a Rasmussen hearing, the district court found that there was no reasonable, articulable suspicion for stopping Linn after the officer observed her weaving in her lane and crossing the center and fog lines in a construction zone, and the court stayed the proceedings pending appeal. Because we hold that the officer had reasonable, articulable suspicion for stopping Linn because of her improper driving conduct, we reverse and remand.
FACTS
Around 11:20 p.m. on Friday, April 26, 2002, Officer Justin Ballsrud of the South Lake Minnetonka Police Department observed Linn's Honda Accord traveling eastbound on Highway 7. As Linn's car approached the intersection of Highway 41 and Highway 7, Ballsrud saw Linn's car cross over the fog line with both right-side tires for about two to three car lengths. At this point, Highway 7 divided into two lanes, and Linn moved over to the left lane. After Linn passed Highway 41, Ballsrud noted that her car was weaving in its lane, crossing over the white centerline once and then over the yellow fog line once. Shortly after seeing these traffic violations and following Linn for 2.2 miles, Ballsrud stopped Linn's car. Ballsrud ultimately arrested Linn for driving while under the influence. Her intoxilyzer reading was 0.15.
Highway 7 was under construction at this time. The road had potholes and an uneven surface because it had been partially stripped. Linn contends she was trying to avoid these conditions by weaving and crossing the center and fog lines. Linn argues that she commutes to work every day on Highway 7, knows the road conditions from memory, and intentionally drove in a manner that would avoid the potholes and slanted road. After the Rasmussen hearing, the district court found that there was not a reasonable, articulable suspicion to support Linn's stop because the driving conduct was minimal and was a good-faith effort to avoid the poor road conditions. The court ordered the proceedings stayed for appeal. The state appeals the district court's Rasmussen ruling.
DECISION
In appeals from pretrial suppression orders, we independently review the facts and determine as a matter of law whether the trial court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). To conduct a stop for limited investigatory purposes, an officer must have 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, 20-22, 88 S.Ct. 1868, 1879-80 (1968)). We review questions of reasonable, articulable suspicion de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). The key to determining whether there is a reasonable basis to justify a stop is to consider the totality of the circumstances. Id. A stop "must not be based on mere whim, caprice, or idle curiosity." State v. Haataja, 611 N.W.2d 353, 354 (Minn.App. 2000), review denied (Minn. July 25, 2000).
Ballsrud did not recall that the road had potholes and a slanted surface, and the district court found Linn's testimony regarding the road conditions more credible. It is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the finder of fact. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). The district court did not find that Ballsrud's testimony lacked credibility, but rather that Linn's improper driving conduct was minimal and that Linn was acting in good faith. The court noted that this "does make the defense argument more credible." So, we will review as a matter of law whether Ballsrud had reasonable, articulable suspicion to stop Linn for weaving and crossing the center and fog lines while driving in a construction zone that had potholes and a slanted road, which Linn argues she was trying to avoid.
"Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle." State v. George, 557 N.W.2d 575, 578 (Minn. 1997). A driver must drive "as nearly as practicable entirely within a single lane." Minn. Stat. § 169.18, subd. 7(a) (2000). When an officer sees a driver cross the centerline, the officer has the requisite reasonable, articulable suspicion for a valid investigatory stop. State v. Wagner, 637 N.W.2d 330, 335-36 (Minn.App. 2001). We have also held that an officer can stop a driver even if there is no violation of any traffic laws, as long as the officer's suspicion is "specific and articulable." Warrick v. Comm'r of Pub. Safety, 374 N.W.2d 585, 586 (Minn.App. 1985) (quoting Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980)).
If a stop is supported by articulable, objective facts, the stop is permissible, and a finding to the contrary is clearly erroneous. The facts that Ballsrud observed and articulated were: (1) both right-side tires of Linn's car crossed over the fog line for two to three car lengths, (2) Linn's car was weaving in its lane, (3) Linn's car crossed over the white centerline once, and (4) Linn's car crossed over the yellow fog line once. We hold that Ballsrud's observation of these traffic violations gave him reasonable, articulable suspicion to stop Linn's car.
Although Linn relies on Warrick, that case is distinguishable from Linn's situation because in Warrick the defendant did not cross either the fog or centerlines, but just weaved in her lane on a windy night. Warrick, 374 N.W.2d at 585. Thus, Warrick is factually distinguishable. Linn's situation is also distinguishable from State v. Anderson, where an officer stationed himself at a road-closed barricade to stop cars to make sure the occupants of the cars were local residents. State v. Anderson, 620 N.W.2d 56, 57 (Minn.App. 2000). In Anderson, the officer stopped vehicles before he suspected criminal activity. Id. at 58. Ballsrud, on the other hand, saw Linn commit traffic violations before he stopped her. Thus, Anderson is also distinguishable on its facts.
Linn contends that the road conditions must be taken into consideration in determining whether Ballsrud had reasonable, articulable suspicion for stopping her. We have previously decided the issue of what an officer must observe and infer to have reasonable, articulable suspicion when there are poor road conditions. The dispositive case on this point is Shull v. Comm'r of Pub. Safety, 398 N.W.2d 11 (Minn.App. 1986). In Shull, an officer saw the defendant driving slower than necessary on a snow-packed and icy road and weaving back and forth over the centerline. Id. at 13. We held in Shull that even though an officer could infer that the driver's conduct was innocent, based on the officer's training and experience, if the officer infers that the driving conduct violates the law, the officer has a reasonable, articulable suspicion for the stop. Id. at 14. Linn's situation is very similar to Shull's. Ballsrud could have inferred that Linn's driving conduct was innocent, that she was driving through a construction zone and trying to avoid the slanted road and potholes. But, under Shull, Ballsrud could also properly infer that the driving conduct violated the law. Based on the officer's training and experience, Linn's driving conduct could reasonably lead him to suspect that Linn might be impaired.
The district court found that Linn's improper driving conduct was minimal and that she was acting in good faith in trying to avoid the slanted road and potholes. Minimal improper driving conduct is still a basis for a stop. Poor road conditions and good faith do not negate that basis. Linn contends that her facts are different from those in Shull because in Shull the weather conditions would not have caused the driver to weave out of a single lane; rather, he could have slowed down and adapted his driving to those conditions. But Linn overlooks the fact that in Shull the driver had in fact slowed down and was allegedly driving in a manner to prevent the weather conditions from causing him to slide into a ditch. Id. at 14. Linn's asserted reason for swerving is similar to Shull's because Linn was driving to avoid the road conditions. Linn's explanation for her driving conduct does not change the facts that Ballsrud observed. It was those observable, articulable facts that provided the officer with the authority to stop Linn's car and investigate further.
Linn also contends that Ballsrud admitted that he would not have reasonable, articulable suspicion to stop Linn if there were potholes and construction that she was trying to avoid on the road. Under Wagner, it does not matter whether an officer subjectively believes that reasonable, articulable suspicion would not exist under certain circumstances. That is a legal conclusion for the court to draw. Wagner, 637 N.W.2d at 336. We hold that Ballsrud had reasonable, articulable suspicion to stop Linn's car and that the district court erred by deciding otherwise.