                          This opinion will be unpublished and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
                                     A15-1859

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Robert Frederick Smart,
                                        Appellant

                                  Filed August 29, 2016
                                        Affirmed
                                      Worke, Judge

                             Hennepin County District Court
                       File No. 27-CR-14-33018, 27-CV-14-18854

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

Amy B. Schutt, Alina Schwartz, Campbell Knutson, P.A., Eagan, Minnesota (for
respondent)

Barry S. Edwards, Barry S. Edwards Law Office, Minneapolis, Minnesota (for appellant)

         Considered and decided by Worke, Presiding Judge; Ross, Judge; and Connolly,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his test-refusal conviction, arguing that the stop of his

vehicle was not based on reasonable, articulable suspicion and that Minnesota’s test-

refusal statute is unconstitutional. We affirm.
                                         FACTS

       At approximately 1:34 a.m. on November 10, 2014, Plymouth Police Officer Amy

Therkelsen was dispatched to a residence. The reporting party stated that five people

were fighting in a parking lot before four of them got into a small black car and traveled

east on 14th Avenue.

       En route to the reported address, Officer Therkelsen observed a small black sedan

occupied by at least four people traveling east on County Road 6. County Road 6 runs

parallel with and is approximately one block north of 14th Avenue. Officer Therkelsen

observed the vehicle three minutes after receiving the call, and there were no other

vehicles on the road at that time. Officer Therkelsen stopped the vehicle and identified

the driver, appellant Robert Frederick Smart. The stop occurred less than one mile from

the residence.

       After approaching the vehicle, Officer Therkelsen detected a strong odor of an

alcoholic beverage and observed that Smart’s eyes were bloodshot and watery. Smart

was arrested after unsuccessfully attempting field sobriety tests. Officer Therkelsen read

the implied-consent advisory to Smart, and Smart refused to take a breath test.

       Smart was charged with third-degree refusal to submit to a chemical test, fourth-

degree driving while under the influence (DWI), and careless driving.             After an

evidentiary hearing, the district court denied Smart’s motion to suppress and concluded

that Officer Therkelsen had reasonable suspicion to stop Smart’s vehicle. The district

court found Smart guilty of third-degree test refusal and fourth-degree DWI. This appeal

follows.


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                                     DECISION

Reasonable articulable suspicion

       Smart argues that the district court erred by denying his motion to suppress

because Officer Therkelsen did not have a “legal justification” to stop his vehicle. “In

reviewing a district court’s determinations of the legality of a limited investigatory stop,

[an appellate court] review[s] questions of reasonable suspicion de novo.” State v.

Britton, 604 N.W.2d 84, 87 (Minn. 2000). Law enforcement may temporarily detain a

suspect if “the stop was justified at its inception by reasonable articulable suspicion, and

. . . the actions of the police during the stop were reasonably related to and justified by

the circumstances that gave rise to the stop in the first place.” State v. Diede, 795

N.W.2d 836, 842 (Minn. 2011) (quotation omitted). An appellate court reviews the

events surrounding a stop and considers the totality of the circumstances to determine

whether a reasonable basis justified the stop. Britton, 604 N.W.2d at 87.

       Smart argues that Officer Therkelsen did not have reasonable suspicion to stop his

vehicle because: (1) the informant did not report a crime or indicate that anyone was

injured, (2) Officer Therkelsen did not observe illegal or suspicious activity, and

(3) Officer Therkelsen did not independently corroborate the informant’s “sketchy

information.” We are not persuaded.

       First, the informant reported that five people were fighting in a parking lot. Thus,

it was reasonable to conclude that an assault or disorderly conduct occurred. Second,

Officer Therkelsen did not need to observe illegal conduct because reasonable suspicion

to stop a vehicle “may be supplied by information acquired from another person.” See


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Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). “Information

from a private citizen is presumed reliable.” Playle v. Comm’r of Pub. Safety, 439

N.W.2d 747, 748 (Minn. App. 1989).

       To justify a traffic stop, “an informant’s tip must possess sufficient indicia of

reliability.” Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000)

(quotation omitted). An appellate court reviewing a traffic stop based on an informant’s

tip focuses mainly on: “(1) identifying information given by the informant, and (2) the

facts that support the informant’s assertion[s].” Id. Here, the informant provided his

name and number. See Playle, 439 N.W.2d at 748–49 (stating that tip was reliable when,

in part, the informant identified himself as an employee of a particular restaurant). And

the informant observed a fight, provided a vehicle description, identified the number of

suspects who entered the vehicle, and accurately stated that the vehicle was traveling

east. See Jobe, 609 N.W.2d at 922 (stating that tip was reliable when the informant

offered accurate information about the suspect’s vehicle and driving conduct). Thus, the

informant’s tip was sufficiently reliable.

       Third, Officer Therkelsen independently corroborated the informant’s information.

The informant indicated that four suspects got into a black car and traveled east. Within

three minutes, Officer Therkelsen identified a black car, with four occupants, traveling

east, within a mile of the reported crime, at a time when there were no other vehicles on

the road.

       Moreover, when determining whether a stop was justified under the

circumstances, an appellate court may consider:


                                             4
              (1) the particularity of the description, if any, of the offender;
              (2) the size or extent of the area in which the offender may be
              found as indicated by such facts as the elapsed time since the
              crime occurred; (3) the number of persons about in the area;
              (4) the known or possible direction of a person’s flight, if
              any; (5) the observed activity of the person stopped;
              (6) knowledge or suspicion that the person stopped has been
              involved in criminality of the type presently under
              investigation.

Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988). Based on the above analysis, these

factors support the district court’s finding that Officer Therkelsen had reasonable,

articulable suspicion to conduct an investigative stop. Therefore, the district court did not

err when it denied Smart’s motion to suppress.

Implied consent

       Smart also argues that Minnesota’s implied-consent law is unconstitutional as

applied to him because the state cannot criminalize his right to refuse an illegal,

warrantless search.1 The constitutionality of a statute is a question of law that this court

reviews de novo. State v. Ness, 834 N.W.2d 177, 181 (Minn. 2013). In Minnesota, “[i]t

is a crime for any person to refuse to submit to a chemical test of the person’s . . . breath.”

Minn. Stat. § 169A.20, subd. 2 (2014).

       In State v. Bernard, the supreme court stated that the state could criminalize the

refusal to submit to a breath test and that a warrantless breath test was constitutional


1
  The state argues that we should not consider Smart’s argument because he failed to
raise the issue before the district court. Both parties acknowledged before the district
court that this court would review the constitutionality of the test-refusal statute.
Additionally, the state briefed the issue. See Woodhall v. State, 738 N.W.2d 357, 363 n.6
(Minn. 2007) (stating that the state would not be prejudiced by addressing the
constitutionality of a statute because the state briefed the issue).

                                              5
under the search-incident-to-arrest exception to the Fourth Amendment’s warrant

requirement. 859 N.W.2d 762, 772, 774 (Minn. 2015), aff’d sub nom. Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016). Here, Officer Therkelsen arrested Smart and read Smart

the implied-consent advisory. After speaking with an attorney, Smart refused to provide

a breath sample. Smart does not argue that Officer Therkelsen lacked probable cause to

arrest him. Therefore, Smart’s argument is unpersuasive because, as applied to Smart,

Minnesota’s test-refusal statute is constitutional.

       Affirmed.




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