                         This opinion will be unpublished and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
                                    A15-1694

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                 Steven Duane Smith,
                                      Appellant.

                                Filed October 24, 2016
                                       Affirmed
                                  Rodenberg, Judge

                             Ramsey County District Court
                               File No. 62-CR-14-6224

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

John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and Liz
Kramer, Brittany S. Mitchell, Special Assistant Public Defenders, Stinson Leonard Street
LLP, Minneapolis, Minnesota (for appellant)

      Considered and decided by Smith, Tracy M., Presiding Judge; Ross, Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Steven Smith appeals from his convictions of driving while intoxicated

and refusing to submit to a chemical test, arguing that the arresting officer’s visual
estimation of his speed was insufficient to support a reasonable articulable suspicion

justifying a traffic stop, that there was insufficient evidence to support his conviction, and

that the test-refusal statute is unconstitutional. We affirm.

                                           FACTS

       On August 17, 2014, St. Paul Police Sergeant Robert Weier was on traffic patrol.

He had just completed an unrelated traffic stop when he observed appellant’s car. Sergeant

Weier visually estimated that appellant’s car was travelling at 45 miles per hour in a 30-

miles-per-hour zone. Sergeant Weier turned his squad car around to follow appellant, and

observed that, when his squad car reached a speed of 40 miles per hour, it was not gaining

on appellant’s car. Sergeant Weier then initiated a traffic stop. When speaking to

appellant, Sergeant Weier observed appellant’s slurred speech and red eyes. He smelled a

faint odor of alcohol on appellant, but appellant denied that he had been drinking. Sergeant

Weier then went through some field sobriety tests with appellant, none of which appellant

performed successfully. Appellant refused to take a preliminary breath test at the scene.

       Sergeant Weier then transported appellant to the Ramsey County Law Enforcement

Center and read appellant the standard implied-consent advisory. Appellant stated several

times that he would not take a test, and when asked to explain his refusal of chemical

testing, appellant stated that the police had no right to pull him over.

       The state charged appellant with first-degree driving while intoxicated and first-

degree test refusal. Appellant moved to suppress and dismiss the charges, arguing that

Sergeant Weier did not have reasonable suspicion sufficient to make the initial stop or to

expand the stop, and there was no probable cause to arrest him. At the suppression hearing,


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Sergeant Weier testified that he had been trained in visual estimation of vehicle speeds and

could visually estimate speed to within five miles per hour. Appellant testified that he had

been driving under the speed limit and argued that the squad video, coupled with

mathematical computations concerning time and distance, proves that he was not speeding

before the stop. The district court denied appellant’s motion to suppress, relying on

Sergeant Weier’s testimony to conclude that the stop was supported by reasonable and

articulable suspicion.

       Appellant stipulated to the state’s case pursuant to Minn. R. Crim. P. 26.01, subd.

4, to obtain appellate review of the denial of his suppression motion. As a part of this

agreement, appellant acknowledged that appellate review would be limited to those issues

raised at the contested suppression hearing. The district court found appellant guilty of

both counts. This appeal followed.

                                       DECISION

       Appellant appeals on three bases. He argues that Sergeant Weier’s visual estimation

of appellant’s speed did not adequately support the traffic stop, that there was insufficient

evidence of intoxication to find appellant guilty of driving while intoxicated, and that the

test-refusal statute is unconstitutional.

       Appellant’s decision to stipulate to the state’s case under Minn. R. Crim. P. 26.01,

subd. 4, limits the scope of our review. When using this procedure, both the state and the

defendant agree that “appellate review will be of the pretrial issue, but not of the

defendant’s guilt, or of other issues that could arise at a contested trial.” Minn. R. Crim.

P. 26.01, subd. 4(f). Accordingly, when an appellant has stipulated to the state’s case, our


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review is limited to the specified pretrial order. State v. Ortega, 770 N.W.2d 145, 149

(Minn. 2009). An appellant who utilizes Minn. R. Crim. P. 26.01, subd. 4, to obtain

appellate review of a pretrial decision is “precluded from raising a sufficiency of the

evidence argument on appeal,” because he has waived his opportunity to argue the

sufficiency of the evidence at trial. State v. Riley, 667 N.W.2d 153, 158 (Minn. App. 2003),

review denied (Minn. Oct. 21, 2003); accord State v. Busse, 644 N.W.2d 79, 88 (Minn.

2002). Challenges based on sufficiency of the evidence or any other argument not raised

at the pretrial hearing are therefore waived.

       As a part of his stipulation under rule 26.01, subdivision 4, appellant acknowledged

that he would be able to seek appellate review of only the issues raised during the

suppression hearing concerning his traffic stop and subsequent arrest.          Appellant’s

sufficiency-of-the-evidence challenge and his constitutional argument are waived. Minn.

R. Crim. P. 26.01, subd. 4(f) (limiting the scope of appellate review to the pretrial issue).

We therefore consider only appellant’s reasonable-suspicion argument.

       Appellant argues that the district court erred in determining that Sergeant Weier had

reasonable articulable suspicion to stop appellant’s car.       Presented with conflicting

testimony on whether or not appellant was speeding just prior to the stop, the district court

credited Sergeant Weier’s testimony and found that he was reasonably suspicious when he

stopped appellant, and articulated the basis of his suspicion by estimating that appellant

was driving too fast.

       “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


                                                4
district court’s legal determinations de novo.’” State v. Gauster, 752 N.W.2d 496, 502

(Minn. 2008) (quoting State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007)). We review

determinations of reasonable suspicion de novo. State v. Britton, 604 N.W.2d 84, 87

(Minn. 2000); In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997). We consider

the totality of the circumstances to determine whether a reasonable basis justified a stop.

Britton, 604 N.W.2d at 87.

       The Fourth Amendment to the United States Constitution and Article I of the

Minnesota Constitution protect citizens from unreasonable searches and seizures. U.S.

Const. amend. IV; Minn. Const. art. I, § 10. However, a law enforcement officer may

temporarily detain a person that he suspects has engaged in criminal activity 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). Traffic violations, “however insignificant,” provide a legal basis for

stopping a vehicle. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Where an officer

has reasonable suspicion that a driver has committed a traffic violation, he may initiate a

stop. Sazenski v. Comm’r of Pub. Safety, 368 N.W.2d 408, 409 (Minn. App. 1985).

              An actual violation of the vehicle and traffic laws need not be
              detectable. The police must only show that the stop was not
              the product of mere whim, caprice or idle curiosity, but was
              based upon specific and articulable facts which, taken together
              with rational inferences from those facts, reasonably warrant
              that intrusion.

State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quotation omitted).



                                               5
       At the suppression hearing, Sergeant Weier testified that he had two reasons to

suspect appellant was travelling faster than the 30-miles-per-hour speed limit. First,

Sergeant Weier, relying on his training and years of police experience, visually estimated

the speed of appellant’s car at 45 miles per hour. Second, while following appellant,

Sergeant Weier’s squad reached a speed of 40 miles per hour without gaining on

appellant’s car. The district court determined that Sergeant Weier reasonably believed

appellant was speeding.

       Citing State v. George, appellant argues that he was not speeding, and that therefore

Sergeant Weier could not have had reasonable suspicion to stop his car. However, State v.

George addresses mistakes of law, not mistakes of fact. 557 N.W.2d at 579 (holding that

a stop of a motorcycle with three headlights, premised on the mistaken belief that the law

prohibited such a configuration, was unconstitutional because there was no objective basis

in the law for the officer to reasonably suspect a crime had occurred).1 Here, appellant

argues that Sergeant Weier mistakenly determined appellant to have been driving 45 miles

per hour: a mistake of fact. A mistake of fact does not invalidate a traffic stop so long as

that mistake is reasonable. See State v. Johnson, 392 N.W.2d 685, 687 (Minn. App. 1986)

(holding that mistaken identity did not render a stop invalid). An officer who visually

estimates the excessive speed of a car, and is able to corroborate his estimate by following


1
  In Heien v. North Carolina, 135 S. Ct. 530 (2015), the United States Supreme Court held
that, in some circumstances, a reasonable mistake of law may not invalidate a traffic stop.
We have no occasion to consider whether George survives Heien by affording greater
constitutional protection of personal liberty under Article I, § 10 of the Minnesota
Constitution than is afforded under the Fourth Amendment of the United States
Constitution. George is not relevant to this case.

                                             6
that car, has a reasonable and articulable suspicion of a traffic violation. Even if appellant

can now demonstrate that he was not speeding (which we need not determine for

reasonable-suspicion purposes), Sergeant Weier’s suspicion that appellant was speeding

was reasonable and sufficient to support a stop.

       Appellant also argues that an officer’s testimony concerning visual estimation

cannot, on its own, support a finding of reasonable suspicion. However, we have held that

a law enforcement officer’s visual estimation of a driver’s excessive speed is sufficient to

support a traffic stop. Sazenski, 368 N.W.2d at 409. A finding of reasonable suspicion on

the basis of excessive speed does not depend upon whether a defendant is charged with

speeding or whether the officer “clock[s] the vehicle’s exact speed.” Frank v. Comm’r of

Pub. Safety, 384 N.W.2d 574, 576 (Minn. App. 1986). Additionally, the district court

found as a fact that Sergeant Weier’s “visual estimates of speeds are accurate within five

miles per hour or less.” Appellant does not challenge this finding as clearly erroneous, and

the record supports it. The district court did not err in determining that an experienced

officer’s visual estimate and subsequent attempt at pacing were sufficient to support this

traffic stop.

       Finally, appellant attacks the quality of Sergeant Weier’s visual estimate of

appellant’s speed, arguing that Sergeant Weier was distracted when he first spotted

appellant’s car. The record does not support this assertion. The district court found that

Sergeant Weier “had just cleared a traffic stop” and “was traveling north on Lexington”

when he noticed appellant’s vehicle. Appellant does not challenge this finding of fact as

clearly erroneous, but would have us infer distraction from the fact that Sergeant Weier


                                              7
had just concluded a traffic stop. No such inference is warranted. The district court found

that the officer was able to see the car and estimate its speed. Whether it might have made

other findings or inferences is not a proper consideration on appeal. State v. Halverson,

373 N.W.2d 618, 621 (Minn. App. 1985) (“It is not the function of the reviewing court to

second guess and substitute its judgment for that of the trial court.”). We review the

findings and legal conclusions that the district court did make, and the record supports

them.

        The district court did not err in finding Sergeant Weier had reasonable suspicion to

stop appellant’s vehicle. We therefore affirm its denial of appellant’s motion to suppress.

        Affirmed.




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