                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A14-1202

Court of Appeals                                                              Lillehaug, J.
                                                                   Took no part, Chutich, J.

State of Minnesota,

                      Appellant,
vs.                                                                   Filed: May 11, 2016
                                                                 Office of Appellate Courts
Tyler Thomas Devries Morse,

                      Respondent.

                               ________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Kathleen Kusz, Nobles County Attorney, Worthington, Minnesota, Travis J. Smith,
Special Assistant County Attorney, Slayton, Minnesota, for appellant.

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
State Public Defender, Saint Paul, Minnesota, for respondent.

                               ________________________

                                      SYLLABUS

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

police officer had a reasonable, articulable suspicion to justify the stop of the appellant’s

vehicle.

       Reversed and remanded.




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                                      OPINION

LILLEHAUG, Justice.

       After respondent Tyler Thomas Devries Morse allegedly took a wide right turn

and weaved once within his lane around 2:00 a.m., he was pulled over by a police officer

on suspicion of driving while impaired. The question presented in this case is whether,

under the totality of the circumstances, the officer had a reasonable, articulable suspicion

to justify the vehicle stop. We conclude that he did, and accordingly reverse the court of

appeals and remand to that court to address any remaining issues on appeal.

                                             I.

       Shortly before 2:00 a.m., bar closing time, on October 20, 2012, a Worthington

police officer observed Morse’s pickup truck leaving the downtown area. The officer

approached Morse’s vehicle from behind while Morse was stopped at a stop sign with his

right-turn signal activated, at the intersection of Second Avenue and Okabena Street.

       Morse turned right on Okabena Street. The officer testified that the angle of the

right turn onto Okabena Street is “somewhere between 100- and 120-degree[s].”

Okabena Street does not have a painted center stripe. According to the officer, Morse’s

vehicle “crossed over the center of the road almost striking a vehicle that was parked on

the other side of the road.” The officer followed Morse’s vehicle. Morse then made a

left turn onto First Avenue. The vehicle “weaved towards the center line of the road,

almost touching it, and move[d] back into its lane.” Morse did not cross the centerline.

The officer testified that the weaving was “[v]ery slight. Almost a drift.” In the officer’s




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opinion, the drift was significant because “most of the time drivers are impaired when

they are drifting like that, at that time of day.”

       The officer stopped Morse’s vehicle on First Avenue.           The officer observed

several indicia of impairment, including watery eyes and a strong odor of alcohol coming

from inside of the vehicle. The officer asked Morse to step out of the vehicle and to

perform standard field sobriety tests. Morse completed the horizontal gaze nystagmus

test, during which the officer “observe[d] all six clues of impairment.”

       The officer arrested Morse and took him to the jail. At 3:06 a.m., Morse provided

a breath sample with an alcohol concentration of 0.19 percent. Morse was then charged

with one count of second-degree driving while impaired—under the influence of alcohol,

Minn. Stat. §§ 169A.20, subd. 1(1) (2014), 169A.25, subd. 2 (2014), and one count of

second-degree driving while impaired—alcohol concentration of 0.08 or more within

2 hours, Minn. Stat. §§ 169A.20, subd. 1(5) (2014), 169A.25, subd. 2.

       Morse moved to dismiss the charges, arguing that there was no valid basis for the

traffic stop. During the contested omnibus hearing, the officer testified and the squad-car

video was received as evidence. The district court found the video evidence of Morse’s

right turn “to be significantly less compelling than the Officer’s testimony indicated, and

the video evidence clearly [did] not support the Officer’s recollection that [Morse’s]

vehicle nearly struck a vehicle parked along the curb of Okabena Street.” The court

found that “the driver’s side rear tire of his vehicle appear[ed] to at least touch the center

seam of the road,” and therefore, Morse did not turn “as close as practicable to the right-

hand curb or edge of the roadway,” as required by Minn. Stat. § 169.19, subd. 1(a)


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(2014). The court also found that the squad video “clearly show[ed] [Morse’s] vehicle

drifting.” Although the court noted that the “statutory standard [for a right turn] is

admittedly somewhat vague,” it concluded that, based on the totality of the

circumstances—Morse’s driving conduct, the time of night, and the officer’s training and

experience—there was a reasonable, articulable suspicion to justify the stop. Observing

that the “basis for the traffic stop . . . rests on a relatively thin reed,” the court

acknowledged that “this ‘thin reed’ passes constitutional scrutiny based on the facts

presented.” The court therefore denied Morse’s motion to dismiss the charges.

       Following a stipulated-facts trial, Morse was found guilty of one count of second-

degree driving while impaired—alcohol concentration of 0.08 or more within 2 hours,

Minn. Stat. §§ 169A.20, subd. 1(5), 169A.25, subd. 2. The prosecutor dismissed the

remaining charge. The district court stayed execution of a 365-day sentence and placed

Morse on probation. Morse appealed the conviction on two issues: (1) the validity of the

initial traffic stop; and (2) the denial of his motion to suppress the results of the breath

test because he had not voluntarily consented to the test.

       On the first issue, a divided panel of the court of appeals reversed. The court, sua

sponte, addressed the constitutionality of Minnesota’s right-turn statute, Minn. Stat.

§ 169.19, subd. 1(a). The court concluded that the “definition of ‘practicable’ is not only

flexible and subject to differences of opinion, it is inherently ambiguous and vague.”

State v. Morse, No. A14-1202, 2015 WL 3822833, at *5 (Minn. App. June 22, 2015).

The court also stated that “[f]ailing to turn ‘as close as practicable’ is not measurable by

some objective standard. . . .” Id. The court “note[d] the risk that [the] statute is


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unconstitutionally vague unless it is narrowly construed.” Id. And when the doctrine of

reasonable, articulable suspicion was “combined with vagueness of the right-turn law, the

subjectivity of the standard [was] compounded.          This create[d] a level of officer

discretion . . . of constitutional concern.”      Id.   To avoid what the court termed

“compounded subjectivity,” it narrowly applied Minn. Stat. § 169.19, subd. 1(a) to the

facts of this case. Reversing the district court, the court held that Morse did not violate

the statute, that there was “no traffic violation to supplement the single weave,” and that

therefore the stop was improper. Id. The State filed a petition for review, which we

granted.

       The State contends that the court of appeals erred in its analysis of the

constitutionality of Minn. Stat. §169.19, subd. 1(a), and that, in any event, the stop was

supported by a reasonable, articulable suspicion.       Morse responds that the court of

appeals’ constitutional analysis was well-reasoned. Morse also argues that, regardless of

whether the statute is constitutional, the record demonstrates that the district court erred

by concluding that the stop was supported by a reasonable, articulable suspicion.

                                            II.

       The court of appeals erred in addressing the constitutionality of the right-turn

statute. Neither party raised this constitutional issue in the district court. Nor was it

raised or argued on appeal. We have said, “A reviewing court must generally consider

‘only those issues that the record shows were presented and considered by the trial court

in deciding the matter before it.’ ” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)

(quoting Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982)).


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       The court of appeals appears to have seized on the district court’s passing

comment that the right-turn statute is “somewhat vague.” But this comment was not

essential to the district court’s holding. Therefore, we conclude that the court of appeals

erred when it raised the constitutionality of the right-turn statute sua sponte and then

decided the issue.

                                             III.

       We now turn to whether the district court erred by concluding that a reasonable,

articulable suspicion supported the stop. “In reviewing a district court’s determinations

of the legality of a limited investigatory stop, we review questions of reasonable

suspicion de novo.” State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). “Reasonable

suspicion must be ‘based on specific, articulable facts’ that allow the officer to ‘be able to

articulate . . . that he or she had a particularized and objective basis for suspecting the

seized person of criminal activity.’ ” State v. Diede, 795 N.W.2d 836, 842-43 (Minn.

2011) (quoting State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995)).

       “The reasonable-suspicion standard is ‘not high.’ ”           Id. (quoting State v.

Timberlake, 744 N.W.2d 390, 393 (Minn. 2008)). “[A] trained police officer is entitled

to draw inferences on the basis of ‘all of the circumstances . . . inferences and deductions

that might well elude an untrained person.’ ” State v. Johnson, 444 N.W.2d 824, 826

(Minn. 1989) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). The district

court’s findings of fact will not be set aside unless they are clearly erroneous. State v.

Gauster, 752 N.W.2d 496, 502 (Minn. 2008).




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        Morse’s argument relies on the contention that neither the wide right turn nor the

single weave alone would have justified the stop, but the district court did not rely on any

single factor. The district court correctly assessed the totality of the circumstances of the

stop.

        The relevant circumstances found by the district court included: (1) the squad-car

video supporting the officer’s assertion that Morse’s right turn “onto Okabena Street was

not as close as practicable to the right-hand curb or edge of the roadway”; (2) the squad-

car video showing Morse’s vehicle drifting in its lane; (3) the fact that the events

occurred close to 2:00 a.m. bar closing time; (4) the fact that Morse was leaving

downtown, an area with bars; and (5) the officer’s training and experience.

        On the second circumstance, this court has held a stop to be justified when an

officer observed a vehicle weaving within its lane even when the officer did not believe

that the driving violated the traffic laws. State v. Ellanson, 293 Minn. 490, 490-91,

198 N.W.2d 136, 137 (1972) (concluding the stop was reasonable because the officer

“had a right to stop [the driver] in order to investigate the cause of the unusual driving”).

The first, third, fourth, and fifth circumstances, considered collectively, fortify the basis

for the investigatory stop.

        Based on the totality of the circumstances, including the deference given to

officers regarding inferences and deductions made based on their training, we have no

difficulty in concluding that the district court correctly determined that the stop of

Morse’s vehicle was valid because it was supported by a reasonable, articulable

suspicion.


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       Accordingly, we reverse the decision of the court of appeals and remand to that

court to address any remaining issues on appeal.

       Reversed and remanded.



       CHUTICH, J., not having been a member at the time of submission, took no part

in the consideration or decision of this case.




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