                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2016).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A16-1290

                                     State of Minnesota,
                                          Appellant,

                                              vs.

                                     Mary Lynn Boline,
                                       Respondent.

                                   Filed February 6, 2017
                                          Affirmed
                                        Reyes, Judge

                               Hennepin County District Court
                                  File No. 27-CR-16-749

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

Peter A. MacMillan, Crystal City Attorney, MacMillan, Wallace & Athanases, P.L.L.C.,
Minneapolis, Minnesota (for appellant)

Kyle J. Dreger, Gerald Miller, P.A., Minneapolis, Minnesota (for respondent)


         Considered and decided by T. Smith, Presiding Judge; Johnson, Judge; and Reyes,

Judge.

                          UNPUBLISHED OPINION

REYES, Judge

         Appellant State of Minnesota challenges the district court’s order granting

respondent Mary Lynn Boline’s pretrial motion to suppress evidence, arguing that the
district court erred in concluding that the police officer lacked reasonable, articulable

suspicion to justify stopping respondent’s car. We affirm.

                                          FACTS

       On January 10, 2016, around 1:30 a.m., a police officer began following

respondent’s car after she left a bar on southbound West Broadway. The officer used

radar to determine that respondent was driving 24 mph in a 35 mph zone. The officer

observed respondent use her blinker to indicate a left turn, but she then turned off her

blinker and continued her course. At the next cross street, respondent reactivated her left

blinker and turned left.

       Next, the officer saw respondent pull into the second driveway on the cross street.

He proceeded to run a license-plate check and determined that the car’s registered owner

lived in a neighboring city. He observed that respondent was driving in the opposite

direction of the car’s registered address. After circling the neighborhood, the officer saw

respondent turning onto northbound West Broadway and resumed following her. Shortly

thereafter, West Broadway expanded from one to two northbound lanes. The officer

initiated a traffic stop after observing that respondent did not use her blinker upon

entering the rightmost lane as the road expanded to two northbound lanes. After

speaking with respondent and administering field sobriety tests, the officer formed the

opinion that respondent was driving while under the influence of alcohol and placed her

under arrest.

       Respondent was later charged with third-degree driving under the influence of

alcohol, second-degree test refusal, and possession of marijuana. She moved the district


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court to suppress the evidence obtained from the stop, asserting that there was no legal

basis for the stop. The state argued that the stop was justified based on the officer’s

observations prior to the road expanding to two northbound lanes and respondent’s

failure to signal when the road expanded to two northbound lanes in violation of Minn.

Stat. § 169.19, subd. 4 (2014).

       At the omnibus hearing, the officer testified that he found the following conduct to

be odd or indicative of an attempt to evade police: (1) driving 11 mph slower than the 35

mph speed limit; (2) making a quick turn and parking in a driveway that was different

from the car’s registered address; and (3) turning onto northbound West Broadway

shortly after traveling on southbound West Broadway. The officer also noted that this

conduct occurred around 1:30 a.m., and “there’s definitely a possibility that [respondent]

was leaving the bar, that potentially [respondent] was under the influence of alcohol, and

[was] trying to evade [the officer].” When asked why he did not initiate a traffic stop

prior to the alleged traffic violation, the officer stated, “I didn’t feel that I had a legal

reason to make a traffic stop. It was suspicious, and it was something that drew my

attention to that vehicle. However, at that point in time, I did not see a solid statutory

violation to make a traffic stop.” He further noted that it “[w]ould’ve been a weak stop

[prior to the alleged traffic violation].”

       The district court granted respondent’s motion to suppress, concluding that the

officer lacked reasonable, articulable suspicion and that respondent did not violate Minn.

Stat. § 169.18, subd. 4. The state’s appeal follows.




                                                3
                                     DECISION

       Where the facts are undisputed, our review of a pretrial suppression order is de

novo. State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005). On appeal, the state must

clearly and unequivocally demonstrate that the order will have a critical impact on the

state’s ability to successfully prosecute the defendant and that the order was erroneous.

State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted). Evidence

obtained as the result of a constitutional violation must be suppressed. State v. Jackson,

742 N.W.2d 163, 177-78 (Minn. 2007). Here, it is undisputed that the critical-impact

element is met because the district court’s order precludes the state from introducing any

evidence stemming from the traffic stop, which is necessary to show that respondent

committed the charged offenses. Accordingly, our analysis addresses whether the district

court erroneously determined that the officer did not have a particularized and objective

basis for the stop.

       To justify a brief investigatory traffic stop, police must have a reasonable,

articulable suspicion of criminal activity. Heien v. North Carolina, 135 S. Ct. 530, 536

(2014); State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001). “The reasonable-

suspicion standard is not high.” State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011)

(quotation omitted). “The officer need not be absolutely certain of the possibility of

criminal activity, but he cannot satisfy the test of reasonableness by relying on an

inchoate and unparticularized suspicion or hunch.” State v. Schrupp, 625 N.W.2d 844,

847 (Minn. App. 2001) (quotation omitted), review denied (Minn. July 24, 2001). A stop

will be upheld when police can articulate a particular objective basis for the stop. State v.


                                              4
Timberlake, 744 N.W.2d 390, 393 (Minn. 2008). A traffic violation, no matter how

insignificant, generally provides such a basis. State v. Anderson, 683 N.W.2d 818, 823

(Minn. 2004).

I.     Respondent’s driving conduct prior to the alleged traffic violation

       First, the state argues that the district court’s suppression order was erroneous

because the officer’s observations, prior to the road expanding to two northbound lanes,

gave rise to a reasonable, articulable suspicion. The state maintains that the officer

articulated specific facts upon which he based his suspicion of criminal activity. The

officer observed respondent driving at a lawful speed after leaving a bar around 1:30

a.m., parking in a driveway that differed from the car’s registered address, and turning

back on to West Broadway shortly thereafter to drive in the direction of the car’s

registered address. The officer testified that such conduct was “odd” and indicated a

possibility that respondent was under the influence of alcohol and was trying to evade

him. However, despite these observations, the officer chose not to initiate a traffic stop at

that time because it “[w]ould’ve been a weak stop at that point”; he stated at the hearing,

“I didn’t feel that I had a legal reason to make a traffic stop.”

       As noted in State v. Johnson, there are some types of motorist behavior that are

not unusual and, standing alone, will not provide justification for an investigatory stop.

444 N.W.2d 824, 826 (Minn. 1989). Here, the only observation pertaining to

respondent’s driving style was that she was traveling below the speed limit. However,

contrary to the state’s assertion, it is not odd or unusual to travel below the speed limit

when driving in dark conditions. And, unlike the facts of State v. Haataja, the record


                                               5
does not indicate that respondent’s slow driving was impeding traffic. 611 N.W.2d 353,

355 (Minn. App. 2000), review denied (Minn. May 16, 2000).

       The facts of this case are also distinguishable from Johnson, where the defendant

exited the highway after making eye contact with a police officer. 444 N.W.2d at 825.

Shortly thereafter, the officer saw the defendant reemerge back onto the highway and

inferred that he was attempting to avoid the officer. Id. Under those facts, the supreme

court determined that the officer had a sufficient basis to stop the driver, reasoning that

“if the driver’s conduct is such that the officer reasonably infers that the driver is

deliberately trying to evade the officer and if, as a result, a reasonable police officer

would suspect the driver of criminal activity, then the officer may stop the driver.” Id.

       Here, there is no suggestion that respondent’s conduct constituted a deliberate

attempt to evade the officer, nor is there any indication that respondent knew the officer

was following her. Therefore, the facts of Johnson are distinguishable from the current

case, and the officer’s suspicion that respondent engaged in furtive conduct to evade a

traffic stop was unreasonable. See State v. Schrupp, 625 N.W.2d 844 (Minn. App. 2001)

(holding officer did not have sufficient justification where a man was driving a car

registered to a woman; the owner’s address was in a city other than where the car was

being driven; and the driver pulled quickly into a driveway and returned to the road

shortly), review denied (Minn. July 24, 2001).

       The state further maintains that we must view the evidence from the perspective of

an objective officer, and “[t]he fact that the officer [did] not believe the facts sufficient

[to support the stop] is not the issue.” Here, the officer chose not to initiate a stop before


                                               6
the alleged traffic violation and later testified to his doubt regarding the existence of a

reasonable, articulable suspicion based solely on respondent’s earlier driving conduct.

Accordingly, the officer’s decision-making and testimony further support the district

court’s conclusion that, under the applicable objective analysis, “the facts available to the

officer at the moment of the seizure . . . [would not] warrant a man of reasonable caution

in the belief that the action taken was appropriate.” Terry v. Ohio, 392 U.S. 1, 21-22, 88

S. Ct. 1868, 1880 (1968).

II.    Respondent’s alleged traffic violation

       Second, the state argues that the district court’s suppression order was erroneous

because respondent violated Minn. Stat. § 169.19, subd. 4, by failing to use her blinker.

In response, respondent argues that she did not violate the statute because she “was

simply following the fog line and remaining in the most right lane.”

       Statutory interpretation based on a given set of facts is a legal question, which we

review de novo. Dep’t of Pub. Safety v. Van Bus Delivery Co., 400 N.W.2d 759, 760

(Minn. App. 1987). When a statute’s text is plain and unambiguous, a court must not

engage in further construction. Anderson, 683 N.W.2d at 821. Statutes are ambiguous

when their language is subject to more than one reasonable interpretation. Id. at 822. “In

reading a traffic regulation, the court may view the statute as a whole and consider its

purpose and what it regulates.” State v. Bissonette, 445 N.W.2d 843, 845 (Minn. App.

1989) (citation omitted).




                                               7
       The statute at issue in this case provides:

              No person shall turn a vehicle at an intersection unless the vehicle
              is in proper position upon the roadway as required in this section,
              or turn a vehicle to enter a private road or driveway or otherwise
              turn a vehicle from a direct course or move right or left upon a
              highway unless and until the movement can be made with
              reasonable safety after giving an appropriate signal in the
              manner hereinafter provided.

Minn. Stat. § 169.19, subd. 4 (emphasis added). This court has determined that the

statute requires the use of a turn signal when changing lanes on a highway regardless of

whether other traffic will be affected. Bissonette, 445 N.W.2d at 846.

       The plain language of Minn. Stat. § 169.19, subd. 4, requires drivers to signal

when “turn[ing] a vehicle from a direct course or moving right or left upon a highway.”

There is no language requiring drivers to signal in situations where, as here, a road

expands to add an additional lane. Respondent did not move right or left upon the

highway or cross the broken white line when entering the rightmost lane on West

Broadway. Such conduct is readily distinguishable from the typical highway lane change

between established lanes, as addressed in Bissonette. See 445 N.W.2d at 844 (noting

defendant’s failure to signal before several highway lane changes). Nor did she turn her

car from a direct course. Put another way, respondent merely continued to follow the fog

line and remained in the rightmost lane as the roadway expanded from one to two

northbound lanes.

       Accordingly, we conclude that the officer’s suspicion was inchoate because

respondent’s conduct did not support an objectively reasonable suspicion of criminal

activity. Moreover, respondent maintained a direct course and did not move right or left


                                               8
upon a highway by following the fog line and remaining in the rightmost lane, without

using her blinker. This did not constitute a violation of Minn. Stat. § 169.19, subd. 4,

justifying an investigatory traffic stop. Therefore, the district court did not err in granting

respondent’s motion to suppress the evidence obtained from the stop.

       Affirmed.




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