                       This opinion will be unpublished and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
                                  A14-1595

                          Mitchell Frank Mack, petitioner,
                                     Appellant,

                                        vs.

                           Commissioner of Public Safety,
                                  Respondent.

                                Filed May 26, 2015
                                     Affirmed
                                  Chutich, Judge
                          Dissenting, Cleary, Chief Judge

                             Polk County District Court
                              File No. 60-CV-13-1824

Lee M. Orwig, Douglas V. Hazelton, Halberg Criminal Defense, Bloomington,
Minnesota (for appellant)

Lori Swanson, Attorney General, Elizabeth Oji, Assistant Attorney General, St. Paul,
Minnesota (for respondent)



      Considered and decided by Cleary, Chief Judge; Chutich, Judge; and Toussaint,

Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant Mitchell Mack challenges a district court order sustaining his license

revocation under the implied-consent law, arguing that no reasonable, articulable

suspicion supported the initial stop of his truck. He further claims that any reasonable,

articulable suspicion that he was driving while impaired was dispelled before the officer

expanded the scope of the stop by requesting a preliminary breath test.            Because

reasonable, articulable suspicion existed throughout the officer’s investigation, we affirm.

                                          FACTS

         At 2:00 a.m. on August 25, 2013, Sergeant Mike Anderson observed a pickup

truck turn off a seldom-used gravel road in front of his patrol car. The truck kicked up

dust behind it, which caused Sergeant Anderson to believe that it had turned at a high rate

of speed. Sergeant Anderson pulled the truck over after he saw it swerve once and then

cross the fog line three times.

         Sergeant Anderson identified the driver as appellant Mitchell Mack.           Two

passengers were also in the truck. Sergeant Anderson could smell a strong odor of

alcohol coming from the truck and asked Mack if he had been drinking. Mack said that

he had not. Mack also said that he did not know of any open alcohol containers in the

truck.

         Sergeant Anderson noticed a whiskey bottle and several beer cans in the truck cab.

The three eventually told Sergeant Anderson that they had gone to Grand Forks to watch

races, but the races were rained out so instead they drank in the truck. Mack then
conceded that he had been drinking earlier in the evening. Sergeant Anderson did not

notice any slurred speech from Mack but told Mack that he would get a ticket for

allowing open containers in the truck. Sergeant Anderson directed the passengers to put

the bottle and cans in a bag and then place the bag in the truck bed. He took IDs from all

three persons to check for warrants. As he approached his squad car, Sergeant Anderson

privately told another officer who had arrived that he was not going to ticket any of the

three but that he was just going to scare them and “kick them loose.”

      When Sergeant Anderson ran Mack’s license through his computer, he learned

that Mack, who was then 21 years old, had previously been arrested for driving while

impaired. Sergeant Anderson returned to the truck to give Mack a preliminary breath

test, but Mack blocked the straw with his tongue, forcing Sergeant Anderson to capture a

manual sample. This sample registered an alcohol concentration of .10.

      Sergeant Anderson then had Mack perform field sobriety tests. Mack showed five

clues of impairment in the horizontal gaze nystagmus test. Sergeant Anderson gave

Mack another preliminary breath test, and this properly captured sample registered an

alcohol concentration of .139.    Sergeant Anderson arrested Mack for driving while

impaired, and Mack’s driving privileges were revoked under the implied-consent law.

      In September 2013, Mack filed a petition for judicial review of the license

revocation. The district court held a hearing in April 2014 and sustained the revocation.

Mack appealed.




                                            3
                                      DECISION

I.     Stop of the Truck

       Mack first argues that the district court clearly erred in finding that Sergeant

Anderson had a valid reason for stopping Mack, claiming that the squad car video shows

that he did not cross the fog line. The commissioner counters, and we agree, that the

district court’s findings are not clearly erroneous.

       This court reviews a district court’s determination regarding the legality of an

investigatory traffic stop and reasonable suspicion de novo. Wilkes v. Comm’r of Pub.

Safety, 777 N.W.2d 239, 242-43 (Minn. App. 2010). Findings of fact are reviewed for

clear error, and due weight is given to the inferences drawn from those facts by the

district court. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). A finding of fact is

clearly erroneous only when the court is left with the “definite and firm conviction that a

mistake has been committed.” Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440

(Minn. 2002) (quotation omitted).

       A traffic stop is permissible if “the officer had a particularized and objective basis

for suspecting the particular person stopped of criminal activity.” State v. Anderson, 683

N.W.2d 818, 822-23 (Minn. 2004) (quotation omitted). Generally, the observation of any

traffic violation—no matter how insignificant—sufficiently supports a particularized and

objective basis for the stop. Id. at 823. Minnesota law requires a car to be driven within

a single lane of traffic. Minn. Stat. § 169.18, subd. 7(a) (2014). Crossing a traffic line, or

even swerving within a driver’s own lane, provides reasonable, articulable suspicion to




                                              4
justify a traffic stop. See State v. Wagner, 637 N.W.2d 330, 336 (Minn. App. 2001);

State v. Dalos, 635 N.W.2d 94, 96 (Minn. App. 2001).

       The district court heard testimony from Sergeant Anderson in which he testified

that Mack crossed over the fog line “on a few different occasions.” The district court

also viewed the squad car footage and stated that the “quality and clarity of the recording

made it difficult to determine whether [Mack] crossed the fog line.” The district court

credited Sergeant Anderson’s testimony and found that the truck crossed the fog line on

more than one occasion.

       Mack claims that review of the squad car video shows that the truck did not cross

the fog line, thereby discrediting Sergeant Anderson’s testimony and showing that the

district court’s finding was clearly erroneous. But as the district court noted, the quality

of the video makes it difficult to determine if Mack crossed the fog line. Because the

video lacks clarity, Mack cannot establish that the district court’s finding is clearly

erroneous. A district court has discretion to make factual findings based on testimony

and review of a video. State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999).

Where the two conflict, a district court must make factual findings, and we defer to the

district court’s credibility determinations. Id. The district court credited the testimony of

Sergeant Anderson, and our review of the video does not give rise to a definite and firm

conviction that a mistake was made.

II.    Expansion of the Scope of Search

       Mack next asserts that the district court erred by ruling that Sergeant Anderson

validly expanded the scope and duration of the stop. The commissioner contends that the


                                             5
totality of the circumstances supports an objective finding of reasonable, articulable

suspicion that Mack was driving while impaired. We agree.

       The scope and duration of an investigatory traffic stop must be limited to the

justification for the stop. State v. Fort, 660 N.W.2d 416, 418 (Minn. 2003). But an

officer may expand the scope of a stop beyond the initial justification if the officer has

independent, reasonable, and articulable suspicion of other criminal activity. State v.

Burbach, 706 N.W.2d 484, 488 (Minn. 2005). Similarly, a police officer may request a

preliminary breath test if the officer possesses “specific and articulable facts” that lead

the officer to believe that a person has been driving while intoxicated. State, Dept. of

Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981); see also Minn. Stat.

§ 169A.41, subd. 1 (2014) (stating that a preliminary screening test may be given when

an “officer has reason to believe” that a person is driving while impaired); State v.

Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (noting that administering a

preliminary breath test does not require probable cause), review denied (Minn. May 16,

1986). Reasonable, articulable suspicion is an objective standard determined by the

totality of the circumstances. Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246

(Minn. App. 1986). We review whether reasonable, articulable suspicion existed de

novo. Burbach, 706 N.W.2d at 487.

       Mack argues that Sergeant Anderson improperly expanded the scope of the stop

by giving him a preliminary breath test after he no longer suspected that Mack was

driving while impaired. Mack claims that the video demonstrates that Sergeant Anderson

no longer believed that Mack was driving while impaired, including Sergeant Anderson’s


                                            6
statements to Mack that he could not smell alcohol on Mack and, “No one’s drunk and

I’m happy about that.” Mack additionally points to several statements that Sergeant

Anderson made to another officer, including that “the driver hasn’t been drinking at all,”

“I’m just going to run them and kick them loose,” and “I’m just going to scare . . . them

and send them down the road.” Mack asserts that these statements show that Sergeant

Anderson’s initial suspicion was dispelled, and he only decided to give Mack a

preliminary breath test once he learned that Mack had a previous driving while impaired

conviction.

        The video does not conclusively show that Sergeant Anderson’s suspicion was

dispelled, however. His statements, questions, and actions show that he was continuing

to investigate the initial reason for which he pulled Mack over until he ultimately

administered the preliminary breath test. And even if Sergeant Anderson subjectively

believed that Mack was not intoxicated, an officer’s subjective beliefs are generally

irrelevant when analyzing the validity of a search. See, e.g., State v. Everett, 472 N.W.2d

864, 867 (Minn. 1991). Reviewing the totality of the circumstances under the proper

objective standard, reasonable, articulable suspicion that Mack was driving while

impaired existed, and therefore Sergeant Anderson could request a preliminary breath

test.

        Sergeant Anderson initially stopped Mack for swerving and crossing the fog line

three times.    This reason, coupled with the late hour, would support reasonable,

articulable suspicion of impaired driving.       See Dalos, 635 N.W.2d at 95-96. Once

Sergeant Anderson made contact with Mack, he smelled a strong odor of alcohol in the


                                             7
truck and saw that Mack’s eyes were watery. Mack admitted, after first denying it, that

he drank earlier in the night. And Sergeant Anderson found open alcohol containers in

the truck, including a bottle of whiskey. These circumstances provided an objective basis

to conclude that reasonable, articulable suspicion existed for a preliminary breath test to

be given. See, e.g., State v. Klamar, 823 N.W.2d 687, 696 (Minn. App. 2012) (stating

that two indicia of intoxication provided reasonable, articulable suspicion for a

preliminary breath test); State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001)

(holding that an odor of alcohol provides a lawful basis to continue a detention), review

denied (Minn. Sept. 25, 2001).

       To be sure, the video shows that Sergeant Anderson did not say out loud that he

was going to give Mack a preliminary breath test until after he learned of Mack’s earlier

charge.2 But a preliminary breath test may be given even when an officer is unsure

whether a driver is under the influence of alcohol. Marben v. State, Dept. of Pub. Safety,

294 N.W.2d 697, 700 (Minn. 1980). Indeed, Sergeant Anderson testified that he planned

on giving Mack a preliminary breath test before he learned of Mack’s previous driving-

while-impaired charge, and the district court found this testimony to be credible.

       In addition to these circumstances, Sergeant Anderson also learned that Mack,

who was only 21 years old at that time, was previously arrested for driving while

impaired.   We agree with Mack that this fact, standing alone, would not support

reasonable, articulable suspicion. See State v. Henning, 666 N.W.2d 379, 385-86 (Minn.

2
  Sergeant Anderson testified that he made the statement about giving Mack a
preliminary breath test to a ride-along student in his patrol car to inform the student what
he was thinking.

                                             8
2003) (holding that mere presence of special license plates issued under Minnesota

Statutes section 169A.60 does not support reasonable, articulable suspicion); cf. State v.

Carter, 697 N.W.2d 199, 205 (Minn. 2005) (stating that a criminal record cannot form

the sole basis for probable cause). But we do not agree that this fact, once known to

Sergeant Anderson, cannot be considered with the many other facts giving rise to

reasonable, articulable suspicion that Mack was driving under the influence of alcohol.

After stopping Mack for crossing the fog line at 2:00 a.m., smelling alcohol, noticing a

whiskey bottle and beer cans, and being lied to by Mack about whether he had been

drinking, Mack’s earlier conviction for driving while impaired was but one more fact for

Sergeant Anderson to consider in deciding to test Mack. And given these circumstances,

Sergeant Anderson would have been remiss had he not ensured that Mack could safely

drive before he allowed him to continue on his way.           In sum, the totality of the

circumstances demonstrates that Sergeant Anderson had objective, reasonable, and

articulable suspicion to request that Mack take a preliminary breath test.

       Mack also argued in his brief that the warrantless search of his breath was

unconstitutional and that the implied consent advisory violated his due-process rights. At

oral argument, however, he conceded that these issues are without merit following State

v. Bernard, 859 N.W.2d 762 (Minn. 2015).

              Affirmed.




                                             9
CLEARY, Chief Judge (dissenting)

       I agree with the majority that the district court was not clearly erroneous in ruling

that the stop of appellant’s truck was valid. I respectfully dissent only as it regards the

remaining issue: whether the officer illegally expanded the scope of the stop. I believe

that the officer’s reasonable suspicion for stopping appellant was dispelled after his

conversation with appellant, as the officer’s own statements confirm. The only reason

the officer had for requiring appellant to provide a breath sample for a preliminary

screening test was his belated discovery of a prior conviction for driving while impaired.

This is an insufficient basis under the applicable statute.

       The statute regarding preliminary breath tests (PBT) provides:

                      When a peace officer has reason to believe from the
               manner in which a person is driving, operating,
               controlling, or acting upon departure from a motor
               vehicle, or has driven, operated, or controlled a motor
               vehicle, that the driver may be violating or has violated
               [169A.20, 169A.31, or 169A.33], the officer may require the
               driver to provide a sample of the driver’s breath for a
               preliminary screening test . . .

Minn. Stat. § 169A.41, subd. 1 (2014) (emphasis added).

       Here, the “reason to believe” appellant might be impaired was not “the manner” in

which appellant had been driving but the fact that he had been convicted before for

driving while impaired. This basis for requiring a breath sample is not authorized under

the statute.

       As the majority notes, a police officer can request a preliminary breath test if the

officer has a “specific and articulable suspicion” that a suspect was driving while



                                             D-1
impaired. State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981);

see also Minn. Stat. § 169A.41, subd. 1 (describing when police can give a PBT). We

determine the existence of a reasonable, articulable suspicion objectively under the

totality of the circumstances. Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246

(Minn. App. 1986). However, the constitutionality of the initial stop does not establish

the constitutionality of a later intrusion. State v. Hickman, 491 N.W.2d 673, 675 (Minn.

App. 1992), review denied (Minn. Dec. 15, 1992). An officer’s reasonable, articulable

suspicion can be dispelled by subsequent information.           Id.   When the suspicion is

dispelled, “[t]he legal test for continuing detention is the same as that for the initial stop.”

State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001), review denied (Minn. Sept. 25,

2001).

         In this case, even assuming that the officer had a reasonable suspicion justifying

the stop, those suspicions were dispelled after his interaction with appellant.

Consider: (1) the officer stated that he did not smell any alcohol on appellant;

(2) appellant did not have slurred speech; (3) the officer told appellant that no one was

drunk and he was happy about that; (4) the officer told appellant that he was getting a

ticket for open container; (5) the officer told another officer that he was going to “scare”

them and then “send them down the road” and let appellant and his passengers go without

a ticket after running them for warrants; and (6) the officer stated that he did not believe

that appellant had been drinking at all. An objective examination of the totality of the

circumstances, as described by the officer who stopped the vehicle, demonstrates that




                                             D-2
there was no reasonable, articulable suspicion to believe that appellant was driving while

impaired.

       Once the officer dispelled any reasonable suspicion, he was required to reestablish

reasonable suspicion that appellant was driving while impaired to make a subsequent

search. See Hickman, 491 N.W.2d at 675. The officer ran appellant’s information to

check for warrants, revealing that appellant had a prior driving while impaired

conviction. After discovering this information, the officer stated that he was going to

give appellant a PBT. A prior violation does not give the police a reasonable, articulable

suspicion that a driver was driving while impaired. See State v. Henning, 666 N.W.2d

379, 385-86 (Minn. 2003) (holding that police could not pull over a vehicle based solely

on special plates indicating that one of the vehicle’s owners had driven while impaired).

       In requesting that appellant provide a breath sample pursuant to Minn. Stat.

§ 169A.41, subd. 1, the officer illegally expanded the scope and duration of the initial

stop. Consequently, the district court order should be reversed and the revocation of

appellant’s driver’s license should be rescinded.




                                           D-3
