                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0229

                             Teric Alan Carlson, petitioner,
                                      Appellant,

                                           vs.

                             Commissioner of Public Safety,
                                    Respondent.

                                Filed September 2, 2014
                                       Affirmed
                                    Peterson, Judge

                              Brown County District Court
                                File No. 08-CV-12-574

Philip Jay Elbert, Fairmont, Minnesota (for appellant)

Lori Swanson, Attorney General, Rory Christopher Mattson, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

      Considered and decided by Peterson, Presiding Judge; Reyes, Judge; and

Klaphake, Judge.*

                        UNPUBLISHED OPINION

PETERSON, Judge

      In this appeal from a district court order sustaining the revocation of appellant’s

driver’s license under the implied-consent law, appellant argues that the odor of alcohol


*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
emanating from the passenger compartment of the car he was driving did not provide a

basis for the deputy sheriff to expand the traffic stop by asking him to perform field

sobriety tests. We affirm.

                                         FACTS

       At approximately 1:30 a.m., Deputy Matthew Ibberson of the Brown County

Sheriff’s Department stopped a car because the tint on its windows was “extremely dark.”

See Minn. Stat. § 169.71, subd. 4(a)(3) (2012) (“No person shall drive or operate any

motor vehicle required to be registered in the state of Minnesota upon any street or

highway . . . when any side window or rear window . . . has a light transmittance of less

than 50 percent plus or minus three percent in the visible light range . . . .”). Ibberson

walked to the passenger side of the vehicle and, as soon as the passenger-side window

was rolled down, he “smelled a strong odor of alcoholic beverage coming out of the

vehicle.”

       Appellant Teric Carlson was driving the vehicle, and a female passenger sat in the

passenger’s seat. Ibberson explained why he had stopped the car, and he asked appellant

whether he had been drinking. Appellant said that he had not been drinking and stated

that he was giving someone a ride home from the bar where he was working that night.

       After going to his squad car to run appellant’s driver’s license through police

records, Ibberson returned and asked appellant if he would perform field sobriety tests.

Appellant got out of his car, and Ibberson noticed that his eyes were glassy and his breath

smelled of alcohol. Appellant refused to perform field sobriety tests, but he asked to take

a breath test. Ibberson administered a preliminary breath test, and the result was .138.


                                            2
       Ibberson arrested appellant for driving while impaired and took him to the Sleepy

Eye Police Department, where he read appellant the implied-consent advisory. Ibberson

then brought appellant to Sleepy Eye Medical Center for a blood draw; appellant’s

alcohol concentration was .13.

       Respondent Commissioner of Public Safety revoked appellant’s driving privileges,

and appellant moved to rescind the revocation, arguing that Ibberson improperly

expanded the scope of the stop. The district court sustained the revocation.

       Appellant’s counsel wrote to the district court, asking it “to correct a legal finding”

in the order. Counsel wrote: “In the Order, the Court stated that the odor of alcohol

emanating from Petitioner’s vehicle ‘…provided a basis for some further investigation

into the possibility that Petitioner was driving while impaired.’ I submit that this is an

incorrect statement of the law.” The district court reaffirmed its order and explained that

it likely wrote the statement appellant’s counsel quoted “because this is an impaired

driving case and those were the facts of this case. A better phrasing might have been that

the odor of alcohol from Petitioner’s vehicle ‘provided a basis for further investigation

into other possible illegal activity,’ which it certainly did.”

       Almost 11 months later, appellant brought a motion to reopen the matter under

Minn. R. Civ. P. 60.02, which the district court denied. This appeal followed.1


1
  Because the record does not show that any party served written notice of the filing of
any of the district court’s orders, the 60-day period for filing an appeal from the orders
did not begin to run, and the appeal from the order sustaining the revocation of
appellant’s driver’s license is properly before us. See Minn. R. Civ. App. P.104.01, subd.
1 (appeal may be taken from appealable order within 60 days after service by any party of
written notice of its filing).

                                               3
                                      DECISION

       Appellant argues that the district court erred when it found that the odor of

alcoholic beverage coming from inside appellant’s car provided a basis for further

investigation into other possible illegal activity. “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 district court’s

findings of fact are reviewed for clear error.” Id.

       In interpreting article I, section 10, of the Minnesota constitution, the supreme

court has explicitly adopted the principles and framework of Terry v. Ohio, 392 U.S. 1,

88 S. Ct. 1868, 20 L.Ed.2d 889 (1968), for evaluating the reasonableness of seizures

during traffic stops even when a minor law has been violated.        State v. Askerooth, 681

N.W.2d 353, 363 (Minn. 2004). Under these principles and framework:

              The basis for intrusion must be reasonable so as to comply
              with article I, section 10’s general proscription against
              unreasonable searches and seizures. To be reasonable, the
              basis must satisfy an objective test: would the facts available
              to the officer at the moment of the seizure . . . warrant a man
              of reasonable caution in the belief that the action taken was
              appropriate. The test for appropriateness, in turn, is based on
              a balancing of the government’s need to search or seize and
              the individual’s right to personal security free from arbitrary
              interference by law officers. Finally, it is the state’s burden to
              show that a seizure was sufficiently limited to satisfy these
              conditions.

Id. at 364-65 (Minn. 2004) (citations and quotations omitted).

              Article I, Section 10 of the Minnesota Constitution requires
              that each incremental intrusion during a traffic stop be tied to
              and justified by one of the following: (1) the original
              legitimate purpose of the stop, (2) independent probable


                                              4
              cause, or (3) reasonableness, as defined in Terry.
              Furthermore, the basis for the intrusion must be
              individualized to the person toward whom the intrusion is
              directed.

Id. at 365.

       Ibberson’s request that appellant submit to field sobriety testing was not tied to

and justified by the original purpose of the stop, which was to investigate the tint of

appellant’s car windows. Ibberson made the request only after he detected the odor of

alcohol. But because an odor of alcohol may be present even when a driver is not

impaired, Ibberson’s detection of an alcohol odor did not establish probable cause that

appellant was driving while impaired. See State v. Johnson, 314 N.W.2d 229, 230 (Minn.

1982) (stating that “[t]he test of probable cause to arrest is whether the objective facts are

such that under the circumstances ‘a person of ordinary care and prudence (would)

entertain an honest and strong suspicion’ that a crime has been committed.” (quoting

State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978)).

       Thus, the issue before us is whether the incremental intrusion of asking appellant

to submit to field sobriety testing was reasonable. That is, would the facts available to

Ibberson at the moment he asked appellant to perform field sobriety tests warrant a

person of reasonable caution in the belief that the request was appropriate? Whether the

request was appropriate is based on a balancing of the government’s need to prevent

impaired driving and appellant’s right to be free from arbitrary interference by Ibberson.

“[I]n justifying the particular intrusion the police officer must be able to point to specific

and articulable facts which, taken together with rational inferences from those facts,



                                              5
reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880. All that is

required is that the intrusion is not the product of mere whim, caprice, or idle curiosity.

Marben v. Comm’r of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).

       Ibberson testified that at the moment he asked appellant to perform field sobriety

tests he knew that appellant was driving a car with one passenger at 1:30 a.m. after

leaving the bar where he had been working that night, and there was a strong odor of

alcohol emanating from the car. Ibberson did not know whether the source of the odor

was appellant, his passenger, or both of them. These facts would warrant a person of

reasonable caution in the belief that asking appellant to perform field sobriety tests to

determine whether he was under the influence of alcohol was appropriate. The expansion

of the stop was limited to this purpose.

       Affirmed.




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