Itasca County District Court File No. 31-CR-11
The opinion of the court was delivered by: Rodenberg, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Affirmed in part, reversed in part, and remanded
Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Rodenberg, Judge.
UNPUBLISHED OPINION RODENBERG, Judge
On appeal from his conviction of second degree possession of methamphetamine, third-degree test refusal, and fourth-degree driving while impaired (DWI), appellant Darin Thomas Mousseau challenges the expansion of the traffic stop which led to the search of his vehicle and evidence seized during the warrantless search. In the alternative, appellant argues that his sentence for fourth-degree DWI must be vacated because it arose from the same behavioral incident as the third-degree test-refusal charge. We affirm in part, reverse in part, and remand.
In the early morning hours of July 11, 2011, Officer Breeden was patrolling the beach area of the O'Brien Reservoir in Itasca County near Highway 169. He followed a vehicle traveling westbound. He observed the driver-side tires of the vehicle cross the marked centerline by approximately one foot, followed by the driver's "jerking motion" back into his own lane of traffic. He also noted that the passenger-side tires made contact with the fog line. A license plate check indicated that the vehicle's tabs had expired in February 2010. Officer Breeden initiated a traffic stop. Appellant does not challenge the validity of the initial traffic stop.
Officer Breeden recognized appellant because he had previously charged him with third-degree possession of methamphetamine in 2010. Standing outside of appellant's open window, Officer Breeden immediately noticed that appellant's face was "real pale," he was "sweating around his hairline and face area," he had some "fresh new marks" and some "older scabs" on the outside of his left forearm, "bloodshot eyes," more constricted pupils than normal based on lighting conditions, and appeared to be "real shaky." Officer Breeden also noticed that appellant had dried saliva around his mouth and that he "smack[ed] his mouth" as he spoke. Appellant told Officer Breeden that he had bought the vehicle one to two months earlier and had transferred the title and the tabs to his name. Appellant started looking for the receipt to prove the ownership and current licensing of the vehicle. Officer Dasovich arrived at the scene to assist Officer Breeden.
Officer Breeden saw a large amount of cash when appellant opened his wallet to retrieve his driver's license. Appellant explained that he was unemployed but that his wife had given him the cash. Officer Breeden observed that the vehicle was in "disarray" and that there was a "fuzz buster" above the rear-view mirror and three air fresheners hanging from the center air vent. Officer Breeden also saw a vent on the driver's side at a "weird angle," which appeared to have been tampered with, and noticed that panels and portions of the vehicle interior had been removed, exposing wiring.
Officer Breeden ran appellant's driver's license through dispatch and found that he was on probation for a third-degree possession of methamphetamine charge from 2010. Based on his observations, Officer Breeden suspected that appellant was under the influence of controlled substances and that controlled substances could be present in the vehicle. Appellant located the receipt for his renewed tabs, and Officer Breeden determined that the receipt was valid. At that time, while still standing outside the driver's side window, and with Officer Dasovich at the passenger-side door shining his flashlight inside appellant's vehicle, Officer Breeden surveyed the interior of the car and noticed a small, black, "cinch end" bag just behind the passenger seat. Officer Breeden shined his flashlight through the back window of the vehicle and saw near the open end of the black bag "[what] appeared to be a large amount of money folded up, a stack of baggies . . . , some Q-tips . . . , and [what] appeared to be the stem smoking portion of a-a glass pipe." Officer Breeden recognized the pipe based on similar pipes he had seen in past drug arrests.
Officer Breeden sought consent to search the vehicle and interpreted appellant's ambiguous response as affirmative.*fn1 In the car, Officer Breeden confirmed the presence of a large amount of cash, small baggies, Q-tips, and a glass smoking device that had "white residue toward the mouthpiece." Officer Breeden then arrested appellant for possession of a pipe containing controlled substance residue.
Appellant fell asleep in the squad car before Officer Breeden could administer field sobriety tests, which were later performed at the police station. Officer Breeden concluded that appellant was under the influence of a controlled substance. Appellant was unable to provide a urine sample. He admitted to jail staff that he had used methamphetamine and THC approximately three days prior to his arrest.
Appellant was charged with second-degree possession of methamphetamine; third-degree test refusal; fourth-degree DWI; possession of a small amount of marijuana; and possession of drug paraphernalia. He moved to suppress the evidence seized during the stop. The district court found that the initial stop was justified by the observed driving conduct and that Officer Breeden had a reasonable suspicion to expand the scope of the stop to investigate possible drug offenses. The district court concluded that the search was justified by the plain-view and automobile exceptions to the warrant requirement. Following a trial on stipulated facts, ...