State v. Hussong
| Decision Date | 16 October 2007 |
| Docket Number | No. A07-785.,A07-785. |
| Citation | 739 N.W.2d 922 |
| Parties | STATE of Minnesota, Appellant, v. Joel Clyde HUSSONG, Respondent. |
| Court | Minnesota Court of Appeals |
Lori Swanson, Attorney General, St. Paul, MN; and Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Special Assistant County Attorney, Shakopee, MN, for appellant.
Robert E. Oleisky, Minneapolis, MN, for respondent.
Considered and decided by KALITOWSKI, Presiding Judge; WORKE, Judge; and ROSS, Judge.
The state appeals from a pretrial order suppressing evidence of a boater's intoxication in a boating-while-intoxicated prosecution. The district court held that a deputy who stopped Joel Hussong's boat for a moving violation did not have probable cause or reason to suspect any other offense until after the deputy initiated an unconstitutional safety-equipment inspection of the boat. Minnesota law requires all watercraft to carry an immediately available Type IV personal flotation device. Because Hussong did not have a Type IV device in plain sight of the deputy who stopped his small, open boat, the deputy had probable cause to believe Hussong was violating the law and could therefore ask Hussong to show him the device. While inquiring about the flotation device the deputy developed reasonable, articulable suspicion that Hussong was intoxicated, and his investigation of this offense provided probable cause to arrest Hussong for boating while intoxicated. We therefore reverse the district court's suppression of evidence.
In July 2006 Deputy Brett Krick was patrolling Prior Lake in a patrol boat. Joel Hussong was also operating a boat on the lake. After Deputy Krick observed Hussong fail to yield to the patrol boat's right of way, the deputy activated his emergency lights and stopped Hussong's boat. Deputy Krick positioned his boat next to Hussong's boat so the driver's sides of the boats were adjacent. Because of windy conditions, Hussong's passenger and a deputy accompanying Deputy Krick held the two boats together.
Deputy Krick remained on his boat and asked Hussong whether he knew why Krick had stopped the boat. Hussong indicated he did not, and Deputy Krick explained the moving violation. Deputy Krick then initiated a safety-equipment inspection of the boat. He asked Hussong to produce two life jackets and Hussong did so. He then asked Hussong to show him a Type IV personal flotation device. He testified that Hussong "fumbled around the boat" looking for one but could not find the required device. Deputy Krick then asked to see a fire extinguisher, and Hussong presented his fire extinguisher.
Deputy Krick found Hussong's fumbling to be suspicious and he smelled alcohol. He asked Hussong how much he had drunk, and Hussong admitted to drinking two beers. Deputy Krick administered several field sobriety tests and a preliminary breath test. Based on the results, he arrested Hussong for boating while intoxicated. A later test indicated that Hussong's blood-alcohol concentration was .11.
Following a contested omnibus hearing, the district court granted Hussong's motion to suppress the evidence, holding that Deputy Krick lawfully stopped Hussong's boat but lacked probable cause or reasonable, articulable suspicion to expand the scope of the initial stop. Because the court held that the request for Hussong to produce safety equipment was unconstitutional, it suppressed all evidence obtained after Krick made his request. The state appeals.
I. Is the district court's finding that the deputy did not detect the odor of alcohol before he asked the operator of a lawfully stopped watercraft to show him required safety equipment clearly erroneous?
II. Does the absence of a Type IV personal flotation device in plain sight of an officer who has lawfully stopped a watercraft permit the officer to ask the watercraft's operator to present the device?
Although Hussong challenged the existence of a moving violation before the district court, on appeal the parties do not dispute the validity of the initial stop for Hussong's failure to yield to Krick's right of way. See Minn. R. 6110.1200, subp. 1(C) (2005) (); see also State v. George, 557 N.W.2d 575, 578 (Minn.1997) (). But they dispute Deputy Krick's authority to perform the safety-equipment inspection and administer the field sobriety tests that led to Hussong's arrest. The state asserts three independent bases for reversing the district court: (1) Deputy Krick had probable cause to arrest Hussong for boating while intoxicated before he began the safety check; (2) Deputy Krick had reasonable articulable suspicion that Hussong was violating the law because he did not have a Type IV personal flotation device in plain sight, which permitted the deputy to expand the scope of the stop; and (3) suspicionless safety checks are constitutional, and Deputy Krick did not need reasonable articulable suspicion or probable cause that any other criminal activity was occurring.
We review a pretrial order suppressing evidence by independently examining the facts to determine whether, as a matter of law, the district court erred in its decision. State v. Askerooth, 681 N.W.2d 353, 359 (Minn.2004). We will not reverse the district court's factual findings, however, unless they are clearly erroneous. State v. Ruoho, 685 N.W.2d 451, 458 (Minn.App.2004), review denied (Minn. Nov. 16, 2004).
We first address the state's argument that Deputy Krick had probable cause to arrest Hussong before conducting the challenged safety check. Probable cause to arrest exists when there are objective facts that would lead a reasonable person to believe that a crime has been committed. State v. Laducer, 676 N.W.2d 693, 697 (Minn.App.2004). We conduct an objective inquiry and review the totality of the circumstances to determine whether probable cause existed. Id. The state asserts that soon after the stop, Deputy Krick had probable cause to arrest Hussong for boating while intoxicated based on Hussong's driving conduct, the odor of alcohol, and Hussong's admission to drinking two beers. Central to the state's position is its factual contention that the deputy smelled alcohol and obtained Hussong's admission to drinking before he asked Hussong to present the safety equipment. But the district court's findings that these events occurred after Deputy Krick initiated the inspection are not clearly erroneous, and without these additional facts Deputy Krick did not have reason to believe that Hussong was intoxicated.
Deputy Krick testified that he questioned Hussong about his alcohol consumption when he smelled alcohol. Hussong testified that the deputy did not ask him whether he had been drinking until after he asked him to produce the safety equipment. Deputy Krick's testimony did not directly contradict Hussong's testimony, and, even if it had, credibility determinations are for the factfinder. See State v. Colbert, 716 N.W.2d 647, 653 (Minn.2006) (). Deputy Krick testified that nothing about Hussong's driving conduct was peculiar except for his failure to yield. He stopped the boat to "have a little chat with him about the fact that he could have caused an accident." He testified that "[a]fter I explained the reason for the stop to [Hussong], I proceeded to do a safety check on the boat." He then explained that he observed Hussong fumbling while looking for the Type IV personal flotation device. When asked whether Hussong's behavior had raised any suspicions of other criminal activity, Deputy Krick again noted the fumbling and stated, "any time somebody is fumbling around for things you begin to suspect that [the person] possibly ha[s] been drinking."
The state points to Deputy Krick's responses to two questions to support its position. Referring to his requests for safety equipment, he was asked, "At that point and time while [Hussong] was doing these various tasks that you asked him to do, had you smelled any alcohol up until that juncture?" Deputy Krick responded, "Yes, when I was talking to him." He also testified that he smelled alcohol "very soon" after he stopped Hussong. But his testimony does not clearly establish a time frame because the first question refers to the time up until Hussong was in the act of retrieving the safety devices, meaning that Deputy Krick could have detected the odor of alcohol while asking him to find the items. Similarly, the deputy's testimony that he smelled alcohol soon after he stopped the boat is not dispositive because the record is unclear as to how much time elapsed between explaining the basis for the stop and initiating the safety check. When asked about Hussong's signs of intoxication, Deputy Krick pointed to several facts, in this order: Hussong's inability to perform manual tasks when looking for the flotation device; the odor of alcohol; and Hussong's admission to drinking two beers. After making all of these observations, Deputy Krick decided to administer the field sobriety tests. The district court's finding that the deputy did not detect the odor of alcohol and obtain the admission from Hussong until after he began the safety check is not clearly erroneous.
Hussong's failure to yield to the patrol boat is alone insufficient to constitute probable cause to arrest for boating while intoxicated. Because Deputy Krick did not develop a basis to believe that Hussong was boating while intoxicated until after he began the safety check, we must determine whether asking Hussong to present the safety equipment after he stopped Hussong's boat exceeds the constitutional limits of the deputy's authority.
This case calls into question the quantum of evidence necessary before a police officer may...
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