Berge v. Commissioner of Public Safety
| Decision Date | 25 June 1985 |
| Docket Number | No. C4-84-2181,C4-84-2181 |
| Citation | 370 N.W.2d 75 |
| Parties | Kent Orrin BERGE, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Trial court did not err in ruling that officer unlawfully stopped a vehicle. The test is particularized and objective basis, not probable cause.
Wayne A. Pokorny, Excelsior, for respondent.
Hubert H. Humphrey, III, Atty. Gen., Blake Shepard, Sp. Asst. Atty. Gen., St. Paul, for appellant.
Heard, considered and decided by POPOVICH, C.J., and SEDGWICK and RANDALL, JJ.
This is an appeal by the Commissioner of Public Safety from an order of the trial court rescinding the revocation of respondent Berge's driver's license. We find that the trial court was not clearly erroneous in its finding of an unlawful stop. We affirm.
On August 13, 1984, Carver County Deputy Sheriff Rod Peddycoart was approaching the "Five Corners" intersection near the Norwood-Young America town line at about 3:30 a.m. Three roads converge at that intersection, and the intersection is regulated by stop signs that are set back several feet from the actual intersection.
As he was approximately one-half to three-quarters of a block away from that intersection, Peddycoart observed a vehicle drive through the intersection. When Peddycoart observed the vehicle, he estimated it to be approximately twenty feet past the controlling stop sign. Peddycoart's view of the stop sign was totally obstructed by foliage, but he knew approximately where the hidden stop sign was located. From his location, Peddycoart estimated the speed of respondent's vehicle to be 20-25 miles per hour as it drove through the intersection.
Peddycoart assumed, based on his recollection of the distance between the stop sign and the actual intersection itself, that the driver could not have gotten up to the speed he estimated the driver was doing when he first saw the car unless the driver had not made a complete stop at the hidden stop sign. Based solely on this assumption, Peddycoart followed respondent for a short distance and then activated the red lights on his squad car and stopped him. Peddycoart did testify that, in following the respondent after he had crossed the intersection, he observed him driving to the left of the center of the road, but testified that he stopped respondent solely on his assumption that respondent had failed to observe the stop sign at "Five Corners". Peddycoart testified that there is no center line on the road past the intersection where he followed respondent, and that he was not concerned with respondent's driving behavior because of that. He admitted that it was not unusual for drivers to use a significant amount of the roadway near Highway 212 where the stop occurred.
After making the stop, Officer Peddycoart testified that he noticed a strong odor of alcohol on respondent's breath, noticed that respondent's eyes were watery, slightly bloodshot, and that his speech was slightly slurred. After a few informal road tests for dexterity, Peddycoart asked respondent to take a preliminary breath test which respondent failed. Peddycoart then arrested respondent for driving under the influence and read him the Minnesota implied consent advisory form.
Respondent agreed to take the breath test and was transported to the Carver County sheriff's office for Intoxilyzer testing. More than one test was run, as the testing officer felt the first test may not have provided an adequate sample. The second sample was described as poor. The two calibrations on the two tests for a total of four different readings were all slightly different. The Intoxilyzer recorded a breath correlation percentage of 96%, and indicated a final reading of .109 which is slightly over the legal limit of .10. Respondent argues that the testing method used was not valid and the test results were not accurate.
The trial court found that the initial stop was improper, that there was no probable cause to believe that respondent was driving the motor vehicle under the influence of alcohol, and that the method used for testing respondent's alcohol concentration was not valid and reliable.
1. Did the police officer have specific articulable facts and an objective basis for stopping respondent's vehicle?
2. Did the officer have probable cause to believe that respondent was driving a motor vehicle while under the influence of alcohol?
3. Was the foundation sufficient for reliability so that the Intoxilyzer results were admissible?
The evidence in the case consists of oral testimony from Officer Peddycoart and respondent. The basic facts are not in dispute. Both parties agree that Peddycoart did not see respondent go through a stop sign, but made the assumption that respondent had because of Peddycoart's estimated speed of 20-25 miles an hour at a point where Peddycoart estimated respondent's car to be 20 feet or more past the hidden stop sign.
It is settled that the findings of fact of a trial court are entitled to the same weight as the verdict of a jury, and with oral testimony involved the trial court alone has the opportunity to adjudge the credibility of witnesses, and thus findings of fact are not to be set aside unless clearly erroneous. State, Department of Highway v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971).
The minimum requirements for a peace officer to make a valid investigatory stop (not amounting to a full arrest) are specific and articulable facts which have a particularized and objective basis for suspicion of criminal activity. State v. Wellman, 355 N.W.2d 331 (Minn.Ct.App.1984); State v. Kvam, 336 N.W.2d 525 (Minn.1983); United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Engholm, 290 N.W.2d 780 (Minn.1980).
In this case, as in Kvam, there are no specific findings which are preferred for proper appellate review. Our review is further hampered by ambiguity on the record resulting from the trial court's failure to set out the standard of law it applied to the stop. At one point, the court stated its reason for finding the stop unlawful:
* * * Officer Peddycoart did not actually see the stop sign violation. He suspected there was one. He certainly could judge speed, thinking probably the fellow didn't stop, but he didn't see it. * * *
The court's statement that the officer did not see a driving violation but suspected one is consistent with lack of a particularized and specific objective basis which is the correct standard. Wellman, 355 N.W.2d at 332. On the other hand, in response to a question from appellant asking for clarification as to specific grounds for rescinding the revocation, the court mentioned lack of probable cause to stop and lack of probable cause to believe respondent was under the influence. For a lawful stop, probable cause is not the test, a particularized and articulable objective basis is.
Although the court did not precisely define the threshold it used in judging the evidence relative to the stop, where we have been able to infer the findings from the trial court's conclusions, we are not bound to select our option to remand. Kvam, 336 N.W.2d at 528. An example cited in Kvam is State v. Rainey, 303 Minn. 550, 226 N.W.2d 919 (Minn.1975): "Where there was no conflict in the evidence, the trial court's conclusions were consistent with the evidence." Kvam, 336 N.W.2d at 528.
We will only reverse a trial court's findings if a review of the record leaves us with the firm conviction that a mistake was made and the findings were erroneous. Kvam, 336 N.W.2d at 529.
Cases discussing the minimum threshold needed for lawful investigatory stops of automobiles show varied fact situations and modest thresholds. In State v. Barber, 308 Minn. 204, 241 N.W.2d 476 (Minn.1976), the court affirmed a stop by a highway patrolman who observed license plates on an automobile wired on with baling wire. The court found that the officer's visual observation of an unusual, although not illegal, method of securing license plates was enough to find the stop not the product of whim, caprice or idle curiosity. Id. at 477. In this case the trial court found no such minimal threshold. Although we might have found differently if reviewing the facts de novo, we cannot say the trial court's finding of an unlawful stop was clearly erroneous. Distinguishing it from Barber, we find that in Barber there was an actual objective observation of something unusual--license plates held on by wire which could indicate a stolen vehicle with different plates affixed rapidly.
In this case the State concedes there was no objective observation of respondent going through a stop sign, no speeding, nor any unlawful or unusual conduct by respondent while driving through the intersection. The officer's entire suspicion rested on an assumption that he knew from previous experience with the intersection about where the hidden stop sign was, and he estimated from one-half block or more away that, when he saw respondent's car, it was going 20-25 miles an hour. He assumed the car must not have made a complete stop in order to reach that estimated speed several feet from the approximate location of the stop sign. Thus, here the officer's stop was made, not on an objective basis, but on assumption.
There was no corroboration for the officer's estimation of speed of the car when he saw it going through the intersection. Witnesses are entitled to give an opinion as to the speed of vehicles they observe, but the weight to be given that opinion is uniquely within the discretion of the finder of fact, and can be accepted, rejected or modified based on how the factfinder views foundation and witness credibility.
Although the facts are arguably susceptible of more than one reasonable interpretation, we do not find clear error, and thus affirm the trial court's finding of an unlawful initial stop. For...
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