                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-2125

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                               Bryan Anthony Hartshorn,
                                      Appellant.

                                 Filed August 17, 2015
                                        Affirmed
                                     Worke, Judge
                                Dissenting, Smith, Judge

                               Ramsey County District Court
                     File Nos. 62SU-CR-13-1221 and 62-CV-13-3183

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Patrick Kelly, Little Canada City Attorney, Martin H.R. Norder, Assistant City Attorney,
Joseph A. Kelly, Assistant City Attorney, Kelly & Lemmons, P.A., St. Paul, Minnesota
(for respondent)

Brian P. Karalus, St. Paul, Minnesota (for appellant)

         Considered and decided by Worke, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.
                        UNPUBLISHED OPINION

WORKE, Judge

       Appellant challenges his conviction for driving while intoxicated, arguing that the

sheriff’s deputy lacked a reasonable, articulable basis to support expansion of his traffic

stop. We affirm.

                                         FACTS

       Shortly after midnight on April 4, 2013, a deputy sheriff observed appellant Bryan

Anthony Hartshorn traveling 62 miles per hour in an area with a posted speed limit of 35

miles per hour. The deputy stopped Hartshorn and asked him if he knew why he had

been stopped. Hartshorn said he did not know. While talking to Hartshorn, the deputy

observed that “his eyes were red and watery” and noticed that Hartshorn “was smoking a

large cigar.” The deputy did not smell the odor of alcoholic beverages, but believed this

could be because of the overpowering smell of the cigar. The deputy believed that

Hartshorn was under the influence of something.

       The deputy asked Hartshorn if he had consumed any alcohol that evening, and

Hartshorn denied it. Hartshorn also denied using any medications or drugs. The deputy

performed a horizontal gaze nystagmus test on Hartshorn and observed signs of

intoxication. The deputy performed a record check and discovered that Hartshorn had

one prior conviction for driving while under the influence of drugs.

       The deputy then performed a second horizontal gaze nystagmus test, again

observing signs of impairment. Hartshorn was able to perform the one-leg-stand test, but




                                            2
showed signs of impairment in the walk-and-turn test.          The deputy administered a

preliminary breath test on Hartshorn, which indicated a .10 blood-alcohol concentration.

After arresting Hartshorn for DWI, the deputy performed a breath test which yielded a

result indicating a .11 blood-alcohol concentration.

       The state charged Hartshorn with third-degree DWI. Hartshorn moved the district

court to suppress the evidence obtained during the traffic stop, arguing that the deputy

had “no reasonable basis for the continued detention of [Hartshorn] after the purpose of

the traffic stop was completed.”1      The district court denied the motion, ruling that

Hartshorn’s bloodshot and watery eyes established a reasonable suspicion that he was

impaired.

       Hartshorn stipulated to the prosecution’s case, under Minn. R. Crim. P. 26.01,

subd. 4, to preserve the pretrial ruling for appeal. The district court found him guilty.

                                      DECISION

       Hartshorn concedes that the initial stop was justified, but contends that the officer

expanded the scope of the stop without a reasonable, articulable basis. A police officer

may stop a motor vehicle to investigate “when the officer has a reasonable, articulable

suspicion that criminal activity is afoot.” State v. Timberlake, 744 N.W.2d 390, 393

(Minn. 2008) (quotation omitted). The scope of the investigation must be limited to the

reason for the stop unless the officer develops reasonable, articulable suspicion of another


1
  In support of the suppression motion, Hartshorn submitted the deputy’s written incident
report. No testimony or other evidence was submitted to the district court in connection
with the motion.


                                              3
criminal offense. State v. Diede, 795 N.W.2d 836, 845 (Minn. 2011). “[W]e review de

novo whether the stipulated facts were sufficient to provide the officer with a reasonable,

articulable suspicion” to expand the scope of the investigatory stop. See State v. Lemert,

843 N.W.2d 227, 231 (Minn. 2014).

       We look to the totality of the circumstances to determine whether a reasonable,

articulable suspicion existed. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998).

The totality of the circumstances “include[s] the officer’s general knowledge and

experience, the officer’s personal observations, information the officer has received from

other sources, the nature of the offense suspected, the time, the location, and anything

else that is relevant.” Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn.

1987). We have previously held that “an officer need only have one objective indication

of intoxication to constitute [probable cause] to believe a person is under the influence.”

See Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983).

Bloodshot, watery eyes are a common indicator of intoxication.          See, e.g., State v.

Bernard, 859 N.W.2d 762, 764 (Minn. 2015), appeal docketed (U.S. June 16, 2015);

State v. Fleck, 777 N.W.2d 233, 235 (Minn. 2010).

       Hartshorn cites several cases involving illegal expansion of traffic stops to support

his argument that red and watery eyes are insufficient indicia of intoxication. But he fails

to cite any legal authority to support his position that the presence of one common,




                                             4
objective indicator of intoxication is insufficient to establish reasonable, articulable

suspicion to expand the scope of a traffic stop to investigate possible impaired driving.2

       The totality of the circumstances supports the district court’s conclusion that the

deputy had a reasonable, articulable suspicion that Hartshorn was under the influence. In

addition to the officer’s observation of Hartshorn’s bloodshot, watery eyes, the totality of

the circumstances include the lateness of the hour, Hartshorn’s driving conduct, and his

admitted lack of awareness as to his driving conduct prior to the stop. These facts meet

the minimal standard needed to expand the traffic stop to investigate possible

intoxication. See State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006) (noting that “the

reasonable suspicion showing is not high” (quotation omitted)). Accordingly, we affirm

the denial of Hartshorn’s suppression motion and his conviction for driving while

intoxicated.

       Hartshorn’s argument that his bloodshot and watery eyes do not provide a

sufficient basis to expand the traffic stop because there may be an innocent explanation is

misplaced. As we noted above, Hartshorn is unable to cite a single case holding that a

peace officer’s observation of a single, common indicator of intoxication is insufficient

for reasonable suspicion. More importantly, “reasonable suspicion need not rule out the

possibility of innocent conduct.” Navarette v. California, 134 S. Ct. 1683, 1686 (2014)


2
 The dissent highlights a question posed to respondent’s counsel at oral argument about
whether the deputy’s observation of Hartshorn’s bloodshot and watery eyes was
sufficient, standing alone, to expand the stop. But improvident remarks attributed to
counsel are not evidence and not a part of the stipulated facts that comprise the record
before us.


                                             5
(quotation omitted); see State v. Horner, 617 N.W.2d 789, 797 (Minn. 2000) (Page, J.,

concurring in part and dissenting in part) (“The fact that there may be other reasons for [a

person’s] bloodshot eyes does not mean that his bloodshot eyes do not support probable

cause.”).

       The dissent suggests that Hartshorn’s traffic violation should not be considered

part of the totality of the circumstances. But the case it cites provides no direct support

for this contention. In State v. Carver, the defendant was arrested for DWI before

officers had observed any objective indication of impairment (only subsequent to arrest

did officers note the odor of alcohol and bloodshot, watery eyes). 577 N.W.2d 245, 248-

49 (Minn. App. 1998). The officers observed the driver only speeding and parking his

car awkwardly prior to his arrest. Id. at 249. The Carver court did not say that the

defendant’s traffic violation should be excluded from consideration of the totality of the

circumstances, only that traffic violations in the absence of any other indication of

impairment did not constitute probable cause to arrest for intoxication.

       Hartshorn’s driving offense is part of the totality of the circumstances, and it was

egregious—driving nearly double the speed limit. When considered in combination with

the fact that Hartshorn expressed confusion as to why he was stopped, the violation

supports the deputy’s reasonable suspicion of impairment. See Navarette, 134 S. Ct. at

1691 (stating that dangerous driving, as opposed to going “slightly over the speed limit,”

may be an indication of “decreased vigilance, impaired judgment, or some combination

of those recognized drunk driving cues”).




                                             6
       Finally, we note that there is no indication that Hartshorn’s bloodshot and watery

eyes was the only factor upon which the deputy based his belief that Hartshorn was

impaired. The deputy’s report notes the time of day, 12:30 in the morning, and the

speeding which led to the initial stop. On this record we conclude that the totality of the

circumstances that the deputy was faced with create reasonable suspicion that Hartshorn

was impaired. The district court did not err in denying Hartshorn’s motion to suppress

the test results because the arrest was valid.

       Affirmed.




                                                 7
SMITH, Judge (dissenting)

       I respectfully dissent because I believe that our review should be limited to

considering the sufficiency of the facts actually relied upon by the deputy to support

reasonable suspicion of intoxication rather than all facts potentially available to support

reasonable suspicion. When, as here, the facts are stipulated, we review de novo whether

those facts provided a law-enforcement officer with a reasonable, articulable suspicion to

support the expansion of an investigatory stop. See State v. Lemert, 843 N.W.2d 227,

231 (Minn. 2014). We consider the totality of circumstances, “includ[ing] the officer’s

general knowledge and experience, the officer’s personal observations, information the

officer has received from other sources, the nature of the offense suspected, the time, the

location, and anything else that is relevant.” Appelgate v. Comm’r of Pub. Safety, 402

N.W.2d 106, 108 (Minn. 1987).

       The majority applies de novo review and the totality-of-circumstances test to

consider the full constellation of facts potentially available to the deputy here, including

Hartshorn’s bloodshot eyes as well as his speeding and his purported lack of awareness of

his speeding, and to conclude that these facts were sufficient to constitute reasonable,

articulable suspicion that Hartshorn was intoxicated. Although I respect the majority’s

reasoning, I must disagree with the premise that de novo review and the totality-of-

circumstances test allows consideration of facts beyond those actually identified by the

deputy as the basis for his suspicion that Hartshorn was intoxicated.

       The state has the burden to demonstrate that expansion of a traffic stop was

justified by reasonable suspicion of criminal activity beyond the reason for the original


                                            D-1
stop.   See State v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004).             I believe this

requirement constrains our de novo review in two aspects relevant here: First, this

standard excludes from our consideration Hartshorn’s speeding because speeding in and

of itself does not indicate potential impairment. Cf. State v. Carver, 577 N.W.2d 245,

247, 249 (Minn. App. 1998) (holding that travelling 75 m.p.h. in a 55-m.p.h. zone gave

“no indication” of probable cause to support an arrest for driving while intoxicated).

Similarly, Hartshorn’s denial of awareness regarding the reason that he was stopped does

not indicate impairment, only Hartshorn’s reluctance to admit to speeding. This amounts

to an invocation of Hartshorn’s constitutional right against self-incrimination. See Taylor

v. Lieffort, 568 N.W.2d 456, 458 (Minn. App. 1997) (“In addition to allowing refusal to

testify at one’s criminal trial, the [constitutional] prohibition [against compelled self-

incrimination] permits refusal to answer any official questions if the answers might be

incriminating in a future criminal proceeding.”) As it is a constitutionally protected right,

I believe Hartshorn’s refusal to admit to the crime of speeding cannot be used as a fact

supporting a reasonable suspicion of intoxication.

        Second, the state’s burden to justify expansion of the stop requires that the state—

not judges—identify the facts that supported the deputy’s reasonable suspicion of

intoxication. Here, the state identified solely Hartshorn’s “red and watery eyes” and its

belief that the deputy “could not smell any alcohol on [Hartshorn] because of the cigar.”1


1
  Because the state submitted no evidence in response to the suppression motion, the state
waived its opportunity to highlight any reasonable-suspicion bases beyond those
identified by the deputy in his report. See Roby v. State, 547 N.W.2d 354, 357 (Minn.
1996).

                                            D-2
Although understandable, the deputy’s speculation about the odor-masking effect of the

cigar is a mere hunch that is insufficient to support reasonable suspicion of intoxication.

See State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989) (“The suspicion that the

officer must be able to articulate must be more than an unarticulated ‘hunch;’ the officer

must be able to point to something that objectively supports his suspicion.”).        And

although “even a single objective indication of intoxication may be sufficient, depending

upon the circumstances in each case,” Martin v. Comm’r of Pub. Safety, 353 N.W.2d

202, 204 (Minn. App. 1984) (emphasis added), the particular fact of red and watery eyes

is, by itself, insufficient to support reasonable suspicion of intoxication. Unlike other

physical manifestations of intoxication, such as unusually dilated eyes or nystagmus, red

and watery eyes often result from mere fatigue or the presence of an irritant such as cigar

smoke or an allergen.2 To allow such a fact to support expansion of a traffic stop to

investigate intoxication would run afoul of the supreme court’s caution in State v.

Burbach against “permit[ting] highly speculative searches against a large group of

entirely law-abiding motorists” based on an “attenuated inference” of potentially illegal

activity.   706 N.W.2d 484, 489 (Minn. 2005).         Although the reasonable-suspicion

standard is “not high,” State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006), it must be

more than an officer’s hunch in order to retain any meaning. I therefore respectfully

dissent.




2
  In response to a question at oral argument, counsel for respondent stated that a driver’s
red and watery eyes did not by itself support reasonable suspicion of intoxication.

                                           D-3
