Knapp v. Commissioner of Public Safety

• Decision Date: 01 June 1999
• Docket Number: No. CX-98-2163,CX-98-2163
• Citation: 594 N.W.2d 239
• Parties: Michael KNAPP, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Court of Appeals

Page 239

594 N.W.2d 239

Michael KNAPP, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.

No. CX-98-2163.

Court of Appeals of Minnesota.

June 1, 1999.

Syllabus by the Court

Articulable suspicion to sustain a stop for driving under the influence of alcohol cannot be based solely on the results of a prior preliminary screening test where there is no evidence in the record that the factual prerequisites for performing the test existed.

Alan J. Albrecht, Albrecht & Associates, Ltd., Brooklyn Center, for appellant.

Mike Hatch, Attorney General, Michael R. Pahl, Assistant Attorney General, St. Paul, for respondent.

Considered and decided by CRIPPEN, Presiding Judge, AMUNDSON, Judge, and SHUMAKER, Judge.

OPINION

SHUMAKER, Judge.

Appellant challenges the trial court's order sustaining the commissioner of public safety's revocation of appellant's driver's license. The revocation resulted from a stop made by a deputy sheriff who knew only that appellant was found sleeping in the back seat of his vehicle in a parking lot early in the morning, that he had failed a preliminary breath test performed by another deputy, and that he had been instructed not to drive. Appellant alleges that without testimony or other evidence in the record, it cannot be presumed that there existed sufficient indicia of intoxication to perform the breath test and that the subsequent stop was therefore impermissible. We agree with appellant and reverse.

FACTS

Just after his duty shift began at 6:00 a.m. on June 30, 1998, deputy sheriff Holland received a radio dispatch to go to a parking lot and check on the welfare of an individual sleeping in the back seat of a car with its engine running. The lot was shared by a cafe and a liquor store. The individual was Michael Knapp.

By the time Holland arrived, deputy Lang was already talking to Knapp. Holland had no personal contact with Knapp in the parking lot and made no particular observations about him. Holland observed Lang administer a preliminary breath test (PBT) to Knapp and heard Lang tell Knapp not to drive because he had failed the PBT.

Both deputies then drove to another location to discuss information from Lang's night shift patrol. They had no discussion about Knapp. As the deputies talked, Holland saw Knapp drive away. Holland followed him. Knapp's driving conduct was not improper in any respect but Holland stopped him for driving while under the influence of alcohol. Holland based the stop entirely on Lang's admonition to Knapp that he had failed the PBT and therefore was not permitted to drive. Holland administered a second PBT and arrested Knapp.

Knapp challenged his driver's license revocation in an implied consent hearing. Since deputy Lang did not testify, the record is silent as to what prompted him to administer a PBT to Knapp. The trial court sustained the revocation, and Knapp appealed.

ISSUE

An arresting officer's sole reason for believing that a driver was under the influence of alcohol was a statement by another officer that the driver had failed a preliminary screening test. If there is no evidence that the other officer had the requisite factual basis for administering the test, was the arrest proper?

ANALYSIS

If a peace officer "has reason to believe" from the manner in which a person drives, operates, or controls a motor vehicle that the person is under the influence of alcohol, the officer may require the person to provide a breath sample for a preliminary screening test. Minn.Stat. § 169.121, subd. 6 (1996). In order to require the test, the officer must have a specific and articulable suspicion of a violation of Minn.Stat. § 169.121 (1996). State, Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn.1981). Articulable suspicion includes evidence of sufficient indicia of intoxication. State v. Driscoll, 427 N.W.2d 263, 265-66 (Minn.App.1988) (citing Costillo v. Commissioner of Pub. Safety, 416 N.W.2d 730, 733 (Minn.1987)). An automobile stop is valid if the officer had a particularized, objective basis for suspecting criminal activity. State v. L'Italien, 355 N.W.2d 709, 710 (1984) (citation omitted). On review, we must decide whether as a matter of law the basis for the stop was adequate. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985).

Deputy Holland relied in good faith on information he obtained through deputy Lang. Holland testified that he assumed that Lang had observed indicia of intoxication or he likely would not have administered the first PBT.

An arresting officer may rely on all collective information in the police department, and, acting in good faith on the basis of such information, may assume at the time of apprehension that probable cause has been established. Thus, an officer * * *, who in good faith relies on such collective information, is legally justified to make an arrest.

State v. Conaway, 319 N.W.2d 35, 40 (Minn.1982) (quoting Schaffer v. State, 75 Wis.2d 673, 676-77, 250 N.W.2d 326, 329 (1977)). Thus, under the "collective information" rule, Holland properly relied on what he heard Lang say and on his own assumption that Lang had "reason to believe" that Knapp was under the influence. However, the analysis does not end with Holland's justified arrest.

Such legal justification, however, cannot alone constitute probable cause for such an arrest, for it is necessary that the officer's underlying assumption of probable cause be...