                        This opinion will be unpublished and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
                                   A14-1202

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                            Tyler Thomas Devries Morse,
                                     Appellant.

                                 Filed June 22, 2015
                                      Reversed
                                    Minge, Judge
                            Dissenting, Bjorkman, Judge

                             Nobles County District Court
                               File No. 53-CR-12-1086


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

Kathleen A. Kusz, Nobles County Attorney, Travis J. Smith, Special Assistant County
Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Stauber, Presiding Judge; Bjorkman, Judge; and

Minge, Judge.



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                         UNPUBLISHED OPINION

MINGE, Judge

       Appellant Tyler Thomas Devries Morse challenges the district court’s denial of his

motion to suppress evidence asserting that there was not a reasonable, articulable

suspicion of a traffic violation to support a legally proper stop of his vehicle. We reverse.

                                          FACTS

       In the early morning of October 20, 2012, Worthington Police Officer Joshua

McCuen was on patrol in a squad car. Officer McCuen observed a vehicle leaving

Worthington’s downtown area at approximately 2:00 a.m. Officer McCuen testified that

there are bars in downtown Worthington, that it was bar closing time, and that he decided

to investigate the vehicle. The driver of this vehicle was appellant Tyler Thomas Devries

Morse. Officer McCuen’s squad-car video camera recorded the investigation from its

fixed dashboard position facing forward from the center of the squad car.

       Morse’s vehicle traveled northeasterly on Second Avenue. The officer observed

Morse’s vehicle stop at a stop sign at a three-way, T-type intersection. The cross street is

Okabena Street, which runs east-west at an angle with Second Avenue. Both streets have

a single lane of travel in each direction and street parking next to the curb. Because of

the angle of the intersection, a left turn would be tight; going right only requires a gentle

turn. In the vicinity of the intersection between Second Avenue and Okabena Street,

there are no center lines, no marked parking lanes, no lane dividers, no painted lines, no

marked cross-walks, and no fog lines. The record indicates that another squad car was

ahead of Morse. There is no indication that pedestrians or bicyclists were present. There

                                             2
was one parked car on the north side of Okabena Street near the intersection. There are

curbs and sidewalks on each road.

       The squad video indicated, and the district court found, that Morse signaled a right

turn onto Okabena Street, and his vehicle’s left rear tire came close to or touched what

appears to be the unmarked center seam of the road. After traveling a short distance,

Morse made a left turn onto a street with marked lanes. Still following the Morse

vehicle, Officer McCuen observed it move “towards the center line of the road, almost

touching it, and moving back into its lane.” He described the weaving as “[v]ery slight.

Almost a drift.” Officer McCuen testified that the Morse vehicle’s movement within its

lane was significant to him because “most of the time drivers are impaired when they are

drifting like that, at that time of day” and that “[a]t that time I believed the driver was

impaired.”

       Officer McCuen activated his flashing squad-car lights, initiating a traffic stop of

the Morse vehicle. The officer approached the driver and asked for identification and

proof of insurance. Officer McCuen noticed that the driver, Morse, had watery eyes and

a strong odor of alcohol emanated from the vehicle. Officer McCuen asked Morse to step

out of the vehicle and conducted a horizontal-gaze-nystagmus test, “observe[d] all six

clues of impairment,” and observed Morse “sway side to side and front to back

approximately 2 inches.” Morse refused to complete other standard field sobriety tests

and Officer McCuen arrested Morse.

       Once at the Nobles County jail, Officer McCuen read Morse the Minnesota Motor

Vehicle Implied Consent Advisory. When asked whether he would like to speak to an

                                            3
attorney, at 2:20 a.m., Morse indicated that he did. At 3:06 p.m., after multiple phone

calls, Morse spoke to an attorney and agreed to take a breath test. The breath test

indicated that Morse’s alcohol concentration was .19.

      Morse was charged with one count of driving while impaired in violation of Minn.

Stat. § 169A.20, subd. 1(1) (2012), and one count of driving while impaired with an

alcohol concentration of .08 within two hours of driving in violation of Minn. Stat.

§ 169A.20, subd. 1(5) (2012). Because of two qualified prior impaired driving incidents,

Morse was charged with second-degree driving while impaired and subject to penalties as

enumerated in Minn. Stat. § 169A.25, subd. 2 (2012).

      At a contested omnibus hearing, Morse challenged the traffic stop and asked the

district court to dismiss the charges. Officer McCuen testified that he saw the vehicle

make a wide right turn where “it crossed over the center of the road almost striking a

vehicle that was parked on the [north] side of [Okabena Street].”        Morse testified,

denying the driving offenses. The squad video and police report were submitted as

evidence.

      At the outset, the district court reviewed the constitutional standard for traffic

stops. Then it discussed the record stating that the squad video was “significantly less

compelling than [Officer McCuen’s] testimony indicated, and the video evidence clearly

does not support [Officer McCuen’s] recollection that [Morse’s] vehicle nearly struck a

vehicle parked along the curb” as Morse took a right turn. But it also found that the

video “supports [Officer McCuen’s] assertion that [Morse’s] vehicle had made a [right

turn] that was not ‘as close as practicable to the right-hand curb or edge of the roadway’

                                            4
as prohibited by Minn. Stat. § 169.19, subd. 1(a).” In making this finding, the district

court observed that this “statutory standard is admittedly somewhat vague.” The district

court found that Morse’s vehicle drifted close to the center line of another street prior to

being stopped and that the in-lane movement together with the officer’s reliance on his

training and experience were relevant in determining the legality of the stop. The district

court concluded that based on the totality of all these circumstances, the stop was

supported by reasonable, articulable suspicion of criminal activity.

       Morse also challenged the admission of the breath test results, claiming he had not

consented. While Morse’s case was pending in the district court, the United States

Supreme Court issued Missouri v. McNeely, 133 S. Ct. 1552 (2013). In McNeely, the

appellant challenged the constitutionality of his breath test. Id. at 1557. On July 23,

2013, the district court held a second contested omnibus hearing in which Officer

McCuen testified again and Morse’s implied-consent advisory audio recording was

submitted to the district court. The district court took the constitutional matter under

advisement. On October 20, 2013, the Minnesota Supreme Court issued State v. Brooks,

838 N.W.2d 563 (Minn. 2013). In Brooks, the Minnesota Supreme Court applied the

United States Supreme Court’s decision in McNeely, rejecting the single-factor exigency

standard and reinforcing the totality-of-the-circumstances test when evidence is seized

without a warrant. Id. at 567, 572; see also id. at 573 (holding that Minnesota implied

consent law is constitutional). On November 25, 2013, the district court denied Morse’s

motion to suppress the breath test results. Morse had a stipulated-facts trial under Minn.

R. Crim. P. 26.01, subd. 4, was found guilty of operating a motor vehicle with an alcohol

                                             5
concentration of .08 within two hours of operation, and the prosecutor dismissed the

remaining charges.

                                      DECISION

       Morse’s appeal raises two issues: the validity of the initial traffic stop and the

denial of his motion to suppress the results of the breath test.

       “We review a district court’s determination regarding the legality of an

investigatory traffic stop and questions of reasonable suspicion de novo.” Wilkes v.

Comm’r of Pub. Safety, 777 N.W.2d 239, 242-43 (Minn. App. 2010). “When reviewing a

pretrial order on a motion to suppress evidence, we may independently 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). We

will not set aside a district court’s findings of fact unless clearly erroneous. State v.

Gauster, 752 N.W.2d 496, 502 (Minn. 2008). We defer to the district court’s credibility

determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

       In Minnesota, we require police officers to have an “objective individualized

articulable suspicion of criminal wrongdoing before subjecting a driver to an

investigative stop.” Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 187 (Minn.

1994). With their training and experience, officers are generally given deference to

“properly act on suspicion that would elude an untrained eye” of a layperson. State v.

Britton, 604 N.W.2d 84, 88-89 (Minn. 2000). We do not inquire into or defer to the

officer’s subjective reasoning for initiating a traffic stop and whether it was justified;

rather we require that there be an objective justification for the stop. See State v. Koppi,

                                              6
798 N.W.2d 358, 363-64 (Minn. 2011) (quoting State v. Speak, 339 N.W.2d 741, 745

(Minn. 1983)); see also State v. Schrupp, 625 N.W.2d 844, 846-47 (Minn. App. 2001)

(stating that an “officer’s subjective good-faith belief” that “criminal activity may be

afoot” is not sufficient and the officer “must articulate specific facts” that reasonably

justify the stop), review denied (Minn. July 24, 2001). The stop cannot be “the product of

mere whim, caprice, or idle curiosity.” State v. Johnson, 257 N.W.2d 308, 309 (Minn.

1977) (citation omitted). Similarly, because the focus is on objective facts, we do not

speculate whether a stop is pretextual and set aside such stops. See State v. Olson, 482

N.W.2d 212, 214 (Minn. 1992) (stating that the supreme court has consistently held “that

if there is an objective basis for it, an arrest or search is lawful even if the officer . . .

based his or her action on the wrong ground or had an improper motive”); see also State

v. Everett, 472 N.W.2d 864, 867 (Minn. 1991) (stating that our supreme court follows the

United States Supreme Court case Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717

(1978), in determining that a search will be upheld if there is an objective legal basis for

an arrest or search, even if the police officer had an improper motive).

       Minnesota law does “not require much” to justify a law-enforcement officer’s

traffic stop. 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.” Id. However, some apparent violation is

required; a single observation of a swerve within the vehicle’s lane, alone, is insufficient

to justify a traffic stop. State v. Brechler, 412 N.W.2d 367, 368-69 (Minn. App. 1987).



                                              7
       Appellant asserts that Officer McCuen made an unconstitutional stop of his

vehicle. We recognize that the constitution requires an ascertainable standard for police

to stop a person. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1858

(1983). A criminal statute may be unconstitutionally vague if it provides the police with

absolute discretion to decide what activities violate the statute. See City of Chicago v.

Morales, 527 U.S. 41, 61, 119 S. Ct. 1849, 1861 (1999) (stating that the Illinois Supreme

Court held that loitering ordinance was unconstitutionally vague because it provided

police absolute discretion to decide what activities constituted loitering); see also

Kolender, 461 U.S. at 858, 860-61, 103 S. Ct. at 1858-60 (concluding statute requiring a

person to provide “credible and reliable” identification was unconstitutionally vague

because police had complete discretion to determine what conduct satisfied the statute).

The problem with a vague statute is that it “lets enforcers define who is a violator in the

first place.” In re Welfare of B.A.H., 845 N.W.2d 158, 164 (Minn. 2014).

       Here, we must determine whether or not Officer McCuen had a reasonable,

articulable suspicion of criminal activity, specifically a traffic violation, based on

Morse’s driving conduct. The district court found that Morse’s left rear tire came close to

or touched the unlined center seam of the roadway, but specifically discredited the

officer’s testimony that Morse’s vehicle threatened the parked car. The district court did

not find that Morse crossed an unmarked center line to enter the opposing lane of travel,

but simply found that Morse violated a traffic law by failing to turn “as close as

practicable to the right-hand curb or edge of the roadway.” Minn. Stat. § 169.19, subd.

1(a). The district court concluded “the basis for the traffic stop in this case . . . rests on a

                                               8
relatively thin reed -- on the officer’s observation of one arguably insignificant violation

of a traffic law on a street without a marked center line” and a single slight drift.

       The statute at issue is as follows:

              Subdivision 1. Turning at intersection. The driver of a
              vehicle intending to turn at an intersection shall do so as
              follows:

              (a) [B]oth the approach for a right turn and a right turn shall
              be made as close as practicable to the right-hand curb or edge
              of the roadway.

Id.1 The statute requires that a driver’s turn be “as close as practicable” to the curb.

       “Practicable” is defined by Black’s Law Dictionary as “reasonably capable of

being accomplished; feasible in a particular situation.” Black’s Law Dictionary (10th ed.

2014). What constitutes “as close as practicable” is highly dependent on the “particular

situation” present. The statute presumably does not require that drivers “hug the curb”

through the turn or begin and end the turn in lanes used for parking when there are no

cars parked in those lanes. Conversely, if one encounters a double-parked delivery van in

one’s lane of travel, turning from or into the opposing lane of travel may be as close as

practicable. Driving a bus, or semi-truck, or car with a trailer, one may find it physically

necessary to turn into the opposing lane. Therefore, the interpretation of the right-turn


1
  Subdivision one, subpart a of Minn. Stat. § 169.19 was amended in 2014 to read:
“Except as otherwise provided in this paragraph, both the approach for a right turn and a
right turn shall be made as close as practicable to the right-hand curb or edge of the
roadway. When necessary to accommodate vehicle configuration, a driver is permitted to
make a right turn into the farthest lane of a roadway with two or more lanes in the same
direction in order to make a U-turn at a reduced conflict intersection, if it is safe to do
so.” 2014 Minn. Laws ch. 287, § 10. Because appellant’s offense occurred prior to the
effective date of the amendment, we only consider the earlier version of the statute.
                                              9
traffic law, and a determination of whether it was violated, requires analysis of all the

circumstances surrounding the turn.

       The definition of “practicable” is not only flexible and subject to differences of

opinion, it is inherently ambiguous and vague. Failing to turn “as close as practicable” is

not measurable by some objective standard like failing to stop at a stop sign, violating the

speed limit, or violating the boating-hours statute. See State v. Gresser, 657 N.W.2d 875,

879-80 (Minn. App. 2003) (concluding boating-hours statute, which restricted operating

personal watercraft one hour before sunset, was not unconstitutionally vague because

sunrise and sunset times are easily accessible). The district court acknowledged that the

turn statute is “somewhat vague.” Because the statute permits police officers to decide,

subjectively, when a turn is not “as close as practicable” to the curb, we note the risk that

a statute is unconstitutionally vague unless it is narrowly construed.          See State v.

Crawley, 819 N.W.2d 94, 105 (Minn. 2012) (“we can uphold [the statute’s]

constitutionality by construing it narrowly”).

       Here, our standard for a permissible stop only requires a reasonable articulable

suspicion. See Britton, 604 N.W.2d at 88 (requiring reasonable articulable suspicion to

justify a stop). When combined with vagueness of the right-turn law, the subjectivity of

the standard is compounded.        This creates a level of officer discretion that is of

constitutional concern.     To avoid this problem of compounded subjectivity, we

conservatively construe the right-turn statute in effect at the time of this offense so as not

to criminalize the right turn of a vehicle at this angled intersection with single lanes of

travel when the vehicle does not enter the opposing lane of travel.

                                             10
       It does not appear from the district court’s findings of fact and the squad video that

Morse crossed into the opposing lane of traffic when he turned. We conclude that, on

these facts, Morse’s right turn did not violate this narrowed construction of the then-

effective version of Minn. Stat. § 169.19, subd. 1(a).

       Because we conclude that Morse’s driving conduct was not a violation of a traffic

law, there is no traffic violation to supplement the single weave observed by Officer

McCuen and the officer’s training and experience that led him to subjectively believe that

Morse may be driving while impaired. We also avoid the district court’s concerns that

the right-turn basis for the stop was “significantly less compelling than the Officer’s

recollection,” that the video evidence was unconvincing, and that the stop of appellant

“rests on a relatively thin reed.” Accordingly, we conclude that this case is similar to our

supreme court’s Brechler case because the driving conduct was too slight to warrant

reasonable suspicion of a traffic violation and that the stop was improper. See Brechler,

412 N.W.2d at 369.

       Because we conclude that Morse’s traffic stop was improper, the evidence

obtained as a result of that stop is not admissible. Therefore, we reverse the district

court’s denial of Morse’s motion to suppress the evidence obtained from the traffic stop,

and we reverse Morse’s conviction.

       Given our conclusion that Morse’s conviction must be reversed, we do not need to

reach the second issue dealing with the constitutional adequacy of his consent to the

breath test. Nonetheless, we note that the supreme court in Brooks, 838 N.W.2d 570-72,

upheld warrantless searches premised on voluntary consent. Under the standard of that

                                             11
decision, the record supports the district court’s determination that Morse’s consent was

voluntary.

      Reversed.




                                           12
BJORKMAN, Judge (dissenting)

       I respectfully dissent. Because the district court’s findings of fact are not clearly

erroneous and its legal conclusion that the traffic stop was valid is sound, I would affirm.

       This court reviews de novo the legality of an investigatory stop. Wilkes v. Comm’r

of Pub. Safety, 777 N.W.2d 239, 242-43 (Minn. App. 2010). But we will not set aside a

district court’s findings of fact unless they are clearly erroneous. Jasper v. Comm’r of

Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002).

       A limited investigatory stop of a motorist is permissible “if the state can show that

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).    An officer’s observation of a traffic violation, no matter how

insignificant, generally “forms the requisite particularized and objective basis for

conducting a traffic stop.” Id. at 823. That is precisely the situation in this case.

       The district court found that Officer McCuen saw Morse’s vehicle make a wide

right turn. The district court discredited the officer’s testimony that the turn was so wide

that Morse’s vehicle nearly struck a vehicle parked on the other side of the street but

found that the driver’s side rear tire of Morse’s vehicle was near or touching the center

seam of the road. And the district court expressly found that there were no parked

vehicles or other obstacles to Morse’s right as he turned, so the turn “wasn’t as close to

the right curb . . . as it could have been.” Morse does not challenge these findings. Nor

does he challenge the conclusion that this driving conduct violates the law requiring

drivers to execute such turns “as close as practicable to the right-hand curb or edge of the

                                             D-1
roadway.” Minn. Stat. § 169.19, subd. 1(a) (2012). Morse contends only that this traffic

violation cannot justify the stop because it is “insignificant.” But that is all the law

requires to justify a traffic stop. See Anderson, 683 N.W.2d at 823; see also Rose v.

Comm’r. of Pub. Safety, 637 N.W.2d 326, 328 (Minn. App. 2001) (stating that “[t]he

factual basis necessary to maintain a routine traffic stop is minimal”).

       Moreover, other unchallenged findings of fact further support the validity of the

stop. Moments after making the wide turn, Morse’s vehicle drifted noticeably within its

lane. In Officer McCuen’s experience, such driving conduct often indicates impairment,

particularly late at night around the time of bar closing. Viewing Morse’s undisputed

traffic violation and these other circumstances together, I would conclude that the traffic

stop was valid.

       Morse’s argument regarding his breath test is similarly unavailing. A warrantless

search of a person’s breath, blood, or urine is valid if the person voluntarily consents to

the search. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013). Whether consent is

voluntary is a question of fact, determined by examining the totality of the circumstances.

State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). Morse challenges the district

court’s finding that he voluntarily consented to breath testing, arguing that his consent

could not have been voluntary because he was in police custody and the record does not

clearly indicate whether he had the opportunity for meaningful consultation with an

attorney. But the record reveals, and Morse does not dispute, that he exhibited numerous

indicia of intoxication, Officer McCuen was neither coercive nor aggressive, and Morse

received a standard implied-consent advisory and more than 40 minutes to contact an

                                            D-2
attorney before agreeing to and completing the testing process.        This record amply

supports the district court’s finding that Morse voluntarily consented to the breath test.

Accordingly, I would conclude that the breath test was valid and affirm in all respects.




                                           D-3
