                        This opinion will be unpublished and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
                                   A14-1919

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Aamir Karmoeddien,
                                    Appellant.

                               Filed December 7, 2015
                                      Affirmed
                                    Reyes, Judge

                           Hennepin County District Court
                               File No. 27CR146894

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

Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota; and

Michael J. Colich, Brooklyn Park City Attorney, Amanda J. Grossman, Assistant City
Attorney, Colich & Associates, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant
State Public Defender, St. Paul, Minnesota (for appellant)

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

Rodenberg, Judge.
                         UNPUBLISHED OPINION

REYES, Judge

       Appellant argues that the police officer lacked an objective basis to stop his

vehicle and that his test-refusal conviction must be reversed because Minnesota’s test-

refusal statute is unconstitutional. We affirm.

                                          FACTS

       On the evening of March 13, 2014, Brooklyn Park Police Officer Nicholas Joe

Courtwright (the officer) observed a 2002 Lincoln LS driven by appellant, Aamir

Karmoeddien, approximately 25-50 yards in front of him travelling westbound on

Brookdale Drive. The officer testified that the vehicle caught his attention because it

weaved within its lane two to three times within 30 to 60 seconds and crossed over the

fog line. He also stated that he noticed “suspended objects from [the] rearview

mirror.” The officer’s squad-car video camera shows appellant’s vehicle weaving from

side to side two to three times and crossing over the fog line, with a visible object

hanging from the rearview mirror.

       The officer testified that when appellant rolled down the window, he observed an

“odor of alcoholic beverage coming from inside the vehicle,” which intensified as

appellant looked up and spoke to him. He also stated that appellant had bloodshot and

glossy eyes. Appellant refused to perform field sobriety tests or submit to a preliminary

breath test. The officer placed appellant under arrest on suspicion of DWI and

transported him to the Brooklyn Park Police Department.




                                              2
       The officer read appellant the Minnesota implied-consent advisory and then gave

him a phone and phone books to contact an attorney. He asked appellant whether he

would submit to a breath test, and appellant refused.

       The state charged appellant with second-degree test refusal in violation of Minn.

Stat. § 169A.20, subd. 2 (2012); second-degree driving while impaired in violation of

Minn. Stat. § 169A.20, subd. 1(1) (2012); having an open bottle of alcohol in the vehicle

in violation of Minn. Stat. § 169A.35, subd. 3(2012)1; and providing a peace officer with

a false name in violation of Minn. Stat. § 609.506, subd. 1 (2012). Appellant moved to

dismiss the charges and suppress evidence obtained during the traffic stop, arguing that

the officer lacked a reasonable basis for the traffic stop. Appellant also moved to dismiss

the test-refusal count, arguing that Minnesota’s test-refusal statute is unconstitutional.

The district court denied both motions. The jury found appellant guilty of the first three

counts and acquitted him of providing a peace officer with a false name. This appeal

follows.

                                      DECISION

I.     The district court did not err in holding that the officer had a reasonable
       articulable suspicion justifying the traffic stop.

       Appellant argues that the district court erred by concluding that the officer had a

reasonable articulable suspicion to support his stop, and therefore erred by denying

appellant’s motion to suppress evidence obtained as a result of the stop. “When

reviewing a pretrial order on a motion to suppress evidence, we may independently

1
  The open bottle of alcohol charge is not argued on appeal. As such, the facts regarding
this charge have been omitted.

                                              3
review the facts and determine whether, as a matter of law, the district court erred in

suppressing or not suppressing the evidence.” State v. Askerooth, 681 N.W.2d 353, 359

(Minn. 2004). This court “accept[s] the district court’s factual findings unless they are

clearly erroneous.” State v. Smith, 814 N.W.2d 346, 350 (Minn. 2012). “Findings of fact

are clearly erroneous if, on the entire evidence, [the court is] left with the definite and

firm conviction that a mistake occurred.” State v. Diede, 795 N.W.2d 836, 846-47

(Minn. 2011).

       The United States and Minnesota Constitutions guarantee the right to be secure

against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,

§ 10. These rights under the Fourth Amendment extend to searches of motor vehicles.

See State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

       However, “an officer may, “consistent with the Fourth Amendment, conduct a

brief, investigatory stop” of a motor vehicle provided that “the officer has a reasonable,

articulable suspicion that criminal activity is afoot.” State v. Timberlake, 744 N.W.2d

390, 393 (Minn. 2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,

675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884–85 (1968))). This

court reviews de novo a district court’s determination of whether there was reasonable

suspicion to justify a stop. Britton, 604 N.W.2d at 87. But this court reviews the factual

findings underlying that determination for clear error. State v. Lee, 585 N.W.2d 378, 383

(Minn. 1998). Reasonable suspicion exists if, “in justifying the particular intrusion the

police officer [is] able to point to specific and articulable facts which, taken together with




                                               4
rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S.

at 21, 88 S. Ct. at 1880.

       The supreme court has held that an officer’s observation of a minor traffic

violation can support the officer’s reasonable suspicion to justify the stop of a vehicle.

See State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (“Ordinarily, if an officer

observes a violation of a traffic law, however insignificant, the officer has an objective

basis for stopping the vehicle.”).

       Here, the district court concluded that the officer had a reasonable articulable

suspicion to justify stopping the vehicle based on the officer’s observation that

appellant’s vehicle “sufficiently” went over the fog line and because there was “an item

hanging from the rearview mirror.” Both of these observations are traffic violations.

Minn. Stat. §§ 169.18, subd. 7(a), .71, subd 1(2) (2012). Therefore, the officer had

reasonable articulable suspicions to stop appellant’s vehicle.

II.    The district court did not err in holding that Minnesota’s test-refusal statute
       is constitutional.

       Appellant argues that Minnesota’s test-refusal statute violates his right to

substantive due process because it criminalizes his Fourth Amendment right to refuse a

warrantless search. Minn. Stat. § 169A.20, subd. 2, (“It is a crime for any person to

refuse to submit to a chemical test of the person’s blood, breath, or urine under section

169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation

of license).”). Appellant further contends that the test-refusal statute violates the

unconstitutional-conditions doctrine.



                                              5
       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) (quotation omitted). The

reviewing court presumes that statutes are constitutional and will strike down a statute

only if absolutely necessary. State v. Melde, 725 N.W.2d 99, 102 (Minn. 2006). “[A]

party challenging the constitutionality of a statute must demonstrate beyond a reasonable

doubt that the statute violates a constitutional provision.” State v. Cox, 798 N.W.2d 517,

519 (Minn. 2011).

       Because appellant bases his substantive due-process argument on a Fourth

Amendment violation, we first decide whether a warrantless search of appellant’s breath

would have been constitutional under the Fourth Amendment. See State v. Bernard,

859 N.W.2d 762, 766 (Minn. 2015). Appellant’s argument is unavailing in light of the

Minnesota Supreme Court’s recent decision in Bernard.

       In Bernard, the supreme court held that a warrantless breath test of the driver is

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

warrant requirement. Id. at 772. The supreme court upheld the constitutionality of

Minnesota’s test-refusal statute as it applied to Bernard’s case, concluding that a

warrantless breath test did not violate the Fourth Amendment because it qualifies as a

search incident to Bernard’s valid arrest. Id.

       Under the search-incident-to-arrest exception, an officer may search a suspect

when the officer has probable cause to arrest the suspect. Arizona v. Gant, 556 U.S. 332,

338, 129 S. Ct. 1710, 1716 (2009). Probable cause to arrest exists when “the objective

facts are such that under the circumstances a person of ordinary care and prudence


                                              6
[would] entertain an honest and strong suspicion that a crime has been committed.” State

v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quotation omitted). Here, the officer

observed an item hanging from appellant’s rearview mirror and observed appellant cross

over the fog line. He then detected the odor of alcohol emanating from appellant and

observed appellant’s bloodshot and glossy eyes. Accordingly, the officer possessed the

requisite probable cause to arrest appellant for suspicion of DWI.

       Because the officer had probable cause to arrest appellant, a warrantless breath test

would have been constitutional as a search incident to a valid arrest. See Bernard, 859

N.W.2d at 767. Moreover, appellant’s reliance on McNeely, 133 S. Ct. 1552, 1556

(2013), is misplaced. McNeely only addressed the single-factor exigency exception to the

warrant requirement and the Minnesota Supreme Court declined to extend McNeely to the

search-incident-to-arrest exception. Bernard, 859 N.W.2d at 772 (“McNeely does not

foreclose our decision regarding the search-incident-to-arrest exception to the warrant

requirement.”).

       Appellant also argues that the test-refusal statute violates the unconstitutional-

conditions doctrine “because it compels the surrender of the constitutional right to

withhold consent to a warrantless search as a condition of driving.” This court recently

held that “Minnesota’s test-refusal statute does not violate the unconstitutional-conditions

doctrine by imposing a criminal penalty on a person who has been arrested for driving

while impaired and has refused to submit to a breath test.” State v. Bennett, 867 N.W.2d

539, 540 (Minn. App. July 27, 2015). Appellant’s unconstitutional-conditions challenge

fails under Bennett.


                                              7
       In sum, appellant’s argument that the government violated his right to due process

by threatening him with unauthorized criminal prosecution for test refusal fails because

application of the criminal test-refusal statute in this case would not have violated

appellant’s right to substantive due process and because the test-refusal statute does not

violate the unconstitutional-conditions doctrine.

       Affirmed.




                                              8
