Marben v. State, Dept. of Public Safety

• Decision Date: 01 August 1980
• Docket Number: No. 50173.,50173.
• Parties: Richard Walter MARBEN, Petitioner, Appellant, v. STATE of Minnesota, DEPARTMENT OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Supreme Court

294 N.W.2d 697 (1980)

Richard Walter MARBEN, Petitioner, Appellant, v. STATE of Minnesota, DEPARTMENT OF PUBLIC SAFETY, Respondent.

No. 50173.

Supreme Court of Minnesota.

May 23, 1980.

Rehearing Denied August 1, 1980.

Genty & Eggert and Richard D. Genty, Winsted, for appellant.

Warren Spannaus, Atty. Gen., and Joel A. Watne, Sp. Asst. Atty. Gen., St. Paul, for respondent.

Heard before ROGOSHESKE, TODD, YETKA, and SCOTT, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

This is an appeal from an order of the Seventh Judicial District Court which sustained the revocation of appellant's driving privileges for his refusal to submit to testing requested pursuant to Minn.Stat. § 169.123, subd. 2 (1976), commonly known as the "Implied Consent Law." We affirm.

On June 23, 1978, at about 7:30 p. m., Minnesota State Patrol Trooper Curran Larson was on duty near the intersection of Interstate 94 and Highway 23 in Stearns County. At that time, while stopped with a motorist on I-94, Larson received a CB radio communication from an unidentified trucker. According to Larson, the trucker stated that he could see the squad car parked by the freeway and asked Larson to "check out a vehicle that had been following him the trucker for the last 60, 70 miles * * * just about under his trailer * * *." The trucker also informed the trooper that the vehicle in question was then exiting from I-94 onto Highway 23.

Larson pursued the subject vehicle, whose driver and lone occupant was later identified as Richard Marben, appellant herein. The car turned right on Highway 23 and traveled a brief distance on that highway until it pulled onto a median crossing and stopped. Although there is some conflict in the testimony regarding the stopping of Marben's car,¹ Larson admits that he saw no improper driving by Marben. Larson parked his squad car next to Marben's vehicle and requested that Marben walk toward the patrol car. As Marben approached the police vehicle, Larson observed that his walk was unsteady and his eyes were watery and bloodshot. Larson also noticed that the odor of alcohol was present.

Larson then had Marben perform some roadside physical coordination tests, after which the trooper concluded that Marben was under the influence of alcohol. Marben was asked by Larson whether he had been drinking, to which he responded that he had had a "couple of beers" in Alexandria. Larson placed Marben under arrest for driving while under the influence of alcohol and proceeded to read him the implied consent advisory form. Marben was offered tests of his blood or breath, but he refused them, claiming that "it the testing was stupid."

On August 23, 1978, respondent Department of Public Safety sent Marben notice of the proposed revocation of his driving privileges for his refusal to submit to testing when asked to do so under the Implied Consent Law. Marben requested a hearing on the matter, which was held before the Stearns County Court on February 1, 1979, and resulted in an order sustaining the proposed revocation. Thereafter, the Stearns County District Court heard the case de novo, and by order dated April 20, 1979, affirmed the revocation of Marben's driving privileges.

On appeal, Marben claims that the Implied Consent Law was illegally invoked against him for two reasons: (1) that the initial stop of Marben's vehicle was inconsistent with Fourth Amendment protections and consequently the subsequent application of the Implied Consent Law to him was improper; and (2) that, in any event, the trooper did not properly arrest Marben and thus testing for alcohol content was not authorized by the Implied Consent Law. We find both these contentions unpersuasive.

1. It is well settled that in accordance with the Fourth Amendment of the United States Constitution a police officer may not stop a vehicle without a reasonable basis for doing so. Consistent with the principles set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officer must have a specific and articulable suspicion of a violation before the stop will be justified. E. g., Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); State v. Engholm, 290 N.W.2d 780 (Minn.1980); State v. Johnson, 257 N.W.2d 308 (Minn.1977); State v. McKinley, 305 Minn. 297, 232 N.W.2d 906 (1975). In Engholm, supra, Johnson, supra, and McKinley, supra, this court quoted with approval the following summarization of the applicable standard as adopted by the court in People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 74, 330 N.E.2d 39, 44 (1975):

It should be emphasized that the factual basis required to support a stop for a "routine traffic check" is minimal. An actual violation of the Vehicle and Traffic Law need not be detectable. For example, an automobile in a general state of dilapidation might properly arouse suspicion of equipment violations. All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." (Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, supra.)

Also, the factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information acquired from another person. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); People v. Tooks, 403 Mich. 568, 271 N.W.2d 503 (1978).

In this case, we believe that, as a result of the trucker's communication with Larson, the trooper had a specific and articulable suspicion of a violation so as to warrant a stop of Marben's vehicle. The informant was apparently a private citizen and thus is presumed to be reliable. See, State v. Phelps, 297 Minn. 61, 209 N.W.2d 780 (1973); People v. Tooks, supra. Moreover, due to the trucker's reference to the location of Larson's squad car and the vehicle in question, the trooper was able to verify that the trucker was in the area, and in close proximity to the subject car. This enhanced the reliability of the trucker's information. Consequently, based on the informant's claim of tailgating,² the trooper had a specific and articulable suspicion that a traffic violation had occurred and thus the stop of Marben's vehicle was proper.

2. Under Minn.Stat. § 169.123, subd. 2 (1976), a peace officer may test a driver's blood, breath or urine for the purpose of ascertaining the...