State v. Burbach

• Decision Date: 01 December 2005
• Docket Number: No. A04-1530.,A04-1530.
• Citation: 706 N.W.2d 484
• Parties: STATE of Minnesota, Respondent, v. Peggy Louise BURBACH, Appellant.
• Court: Minnesota Supreme Court

Page 484

706 N.W.2d 484

STATE of Minnesota, Respondent, v. Peggy Louise BURBACH, Appellant.

No. A04-1530.

Supreme Court of Minnesota.

December 1, 2005.

COPYRIGHT MATERIAL OMITTED

Richmond H. McCluer, Jr., John Paul Plachecki, Price, McCluer & Plachecki, Winona, MN, for appellant.

Mike Hatch, Attorney General, St. Paul, MN, Charles E. MacLean, Winona County Attorney, Winona County Courthouse, Winona, MN, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

ANDERSON, RUSSELL A., Justice.

In this case, the state appealed a pretrial order by the district court suppressing crack cocaine seized during the consensual search of a vehicle stopped for speeding, and also suppressing additional evidence of drug possession and drug use subsequently seized at the stationhouse from the driver, appellant Peggy Louise Burbach. The court of appeals reversed the district court, concluding that the officer's detection of the odor of alcohol coming from Burbach's vehicle justified the officer's search. State v. Burbach, No. A04-1530, 2005 WL 221980, at *4 (Minn.App. Feb.1, 2005). We granted review and now reverse, concluding, as did the district court, that the officer's request to search the vehicle violated Article I, Section 10 of the Minnesota Constitution because it was not supported by a reasonable, articulable suspicion of additional criminal activity beyond the original purpose of the stop.

Shortly before 1:30 a.m. on February 8, 2004, a police officer clocked Burbach traveling 55 miles per hour in a 30-miles-per-hour speed zone on 6th Street in Winona, Minnesota. The officer pulled up behind Burbach and turned on his lights, and she pulled over after traveling about a block and then drove slowly in the parking lane for three quarters of a block before stopping. Once the officer approached the vehicle and had Burbach identify herself, he remembered her name and her vehicle's license plate from a tip he had received from his sergeant at a shift-change meeting one or two weeks earlier. At the meeting, his sergeant had shown him a short list of the license-plate numbers of vehicles suspected by narcotics officers of carrying crack cocaine. His sergeant also told him the corresponding owners' names, including Burbach's.

As the officer spoke to Burbach, he detected a strong odor of alcohol, but he could not tell if the smell came from Burbach or her passenger, a middle-aged man seated next to her. The passenger volunteered that the alcohol smell came from him, and after ordering Burbach out of the car, the officer smelled no odor of alcohol coming from her. The officer then conducted a nystagmus-gaze test on Burbach, which showed no signs of nystagmus, and a breathalyzer test, which indicated that Burbach's alcohol concentration was .000. In addition, Burbach's eyes were neither watery nor bloodshot, and she had no problems related to balance, coordination, vision, following directions, answering questions, or with slurred or ungrammatical speech. The officer concluded that the odor of alcohol did not come from Burbach, but he felt that she was significantly more nervous, fidgety, and talkative than a normally nervous person in a traffic stop. He asked her if she had recently used any illegal drugs or if she had any in her car. She answered "no" to both questions, although she said she had taken some NyQuil earlier in the evening.

At this point, about 15 minutes into the traffic stop, the officer requested and obtained Burbach's consent to search the vehicle. He testified that he wanted to search the vehicle because Burbach's nervous behavior suggested impairment, and that the tip he had received at the shift-change meeting made him more eager to search due to its suggestion that her car may contain crack cocaine. After a second officer removed Burbach's passenger from the vehicle, the officer opened the driver's side door and saw three baggies of crack cocaine sitting on the passenger seat. The officers then arrested Burbach and her passenger. At the stationhouse, an additional rock of crack cocaine and a pipe were found in Burbach's bra during a body search. She also consented to a urine test, and its results showed that she had marijuana and cocaine in her system.

The state charged Burbach with possession of narcotics, driving under the influence of a controlled substance, possession of drug paraphernalia, speeding, and failure to provide proof of insurance. Burbach moved to suppress the crack cocaine and the other drug-related evidence found during the vehicle search and subsequently at the stationhouse, arguing that the search of her vehicle was a violation of her rights under Article I, Section 10 of the Minnesota Constitution because the search was not supported by a reasonable, articulable suspicion of criminal activity beyond the original purpose of the stop, and that evidence obtained subsequent to the search was therefore also tainted. Relying on our decision in State v. Fort, 660 N.W.2d 415 (Minn.2003), the district court agreed that the officer's request to search the vehicle was not supported by reasonable, articulable suspicion, and therefore suppressed the crack cocaine, the pipe, and the urine-test results, and dismissed the drug-related charges. The state appealed the pretrial order,¹ and the court of appeals reversed the district court's order, basing its decision on State v. Schinzing, 342 N.W.2d 105 (Minn.1983), in which we permitted a vehicle search when an officer detected the odor of alcohol coming from a vehicle. Burbach, 2005 WL 221980. We then granted Burbach's petition for review.

I.

This case presents two questions. First, Burbach asks us to revisit the court of appeals' determination that a request to search a vehicle is justified under the Minnesota Constitution when an officer detects the odor of alcohol coming from an adult passenger. Second, we consider the state's contention that, under the totality of circumstances in this case, the officer's request to search Burbach's vehicle was justified by a reasonable, articulable suspicion of drug possession.

We undertake a de novo review to determine whether a search or seizure is justified by reasonable suspicion or by probable cause. State v. Lee, 585 N.W.2d 378, 382-83 (Minn.1998) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). The district court's findings of fact are reviewed for clear error. Id. Here, the facts are undisputed, and so our review is entirely de novo.

Both the United States and Minnesota Constitutions prohibit "unreasonable searches and seizures." U.S Const. amend. IV; Minn. Const. art. I, § 10. Generally, "a search conducted without a warrant issued upon probable cause is per se unreasonable." State v. Hanley, 363 N.W.2d 735, 738 (Minn.1985) (internal quotations omitted) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). However, this rule is "subject * * * to a few specifically established and well delineated exceptions." Id. Due to the exigent circumstances presented by automobiles, there is "a well-established exception to the search warrant requirement for cases involving transportation of contraband goods in motor vehicles." State v. Munson, 594 N.W.2d 128, 135 (Minn.1999).

In Atwater v. City of Lago Vista, the United States Supreme Court determined that "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). When the offender is the occupant of a vehicle, the officer may also conduct a search of the vehicle. See id. at 364, 121 S.Ct. 1536 (O'Connor, J., dissenting); see also New York v. Belton, 453 U.S. 454, 462-63, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

But we have rejected the Atwater approach as a "sharp departure" from our search and seizure jurisprudence. State v. Askerooth, 681 N.W.2d 353, 362 (Minn.2004). In contrast to the laxer requirements of the United States Constitution as articulated in Atwater, we have held that Article I, Section 10 of the Minnesota Constitution requires that "the scope and duration of a traffic stop investigation must be limited to the justification for the stop." Fort, 660 N.W.2d at 418. And any "intrusion not closely related to the initial justification for the search or seizure is invalid under article I, section 10 unless there is independent probable cause or reasonableness to justify that particular intrusion." Askerooth, 681 N.W.2d at 364. Both probable cause and reasonableness are evaluated by looking at the "totality of the circumstances." State v. Henning, 666 N.W.2d 379, 384-85 (Minn.2003). Analysis under these standards must be "particularized" and "individualized to the driver." Askerooth, 681 N.W.2d at 364; Fort, 660 N.W.2d at 418.

When an officer expands a traffic stop by requesting to search a vehicle, and when this request is not justified by the original purpose of the stop, the officer must have a "reasonable articulable suspicion of other criminal activity" going beyond the initial reason for the stop. Fort, 660 N.W.2d at 419. Here, since the officer's request to search Burbach's vehicle was not justified by Burbach's speeding, to be valid under the Minnesota Constitution, the request must have been supported by a reasonable, articulable suspicion of additional criminal activity. And to be reasonable, any intrusion in a routine traffic stop must be supported by an "objective" and fair "balancing of the government's need to search or seize `and the individual's right to personal security free from arbitrary interference by law officers.'" Askerooth, 681 N.W.2d at 364-65 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).

Since reasonable, articulable suspicion must be "particularized," we must...