Isanti County District Court File No. 30-CR-11-359
Lori Swanson, Attorney General, St. Paul, Minnesota; and Jeffrey R. Edblad, Isanti County Attorney, Timothy Charles Nelson, Assistant County Attorney, Cambridge, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Davi Elstan Forte Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Bjorkman, Judge.
In this appeal from convictions for driving-while-impaired and an open-bottle violation, appellant argues that the stop of her vehicle was not supported by a reasonable, articulable suspicion of criminal activity because the deputy who made the stop gave a different reason for the stop in his testimony at the omnibus hearing than he gave in his investigative report. We affirm.
Appellant Wendy Ann Birk was convicted of two counts of gross-misdemeanor driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1), (5) (2010), and one count of misdemeanor open bottle in a vehicle, in violation of Minn. Stat. § 169A.35, subd. 3 (2010), following a stipulated-evidence trial held under Minn. R. Crim. P. 26.01, subd. 4. She agreed to the stipulated-evidence trial after the district court denied her pretrial motion to suppress all evidence obtained during a traffic stop.
At 1:30 a.m., Isanti County Deputy Sheriff Douglas Barron was on routine patrol at a four-way stop when he saw appellant's vehicle approach the intersection. In an investigative report, Barron wrote that appellant's vehicle "came to a late abrupt stop at the intersection, continuing through the intersection." The report also states that Barron followed appellant's vehicle, which "made late stops into the corner making abrupt braking motions" and slowed down abruptly at a sign posting a speed-limit reduction from 50 miles per hour to 30 miles per hour.
Appellant challenged the factual basis for the stop of her vehicle. At the omnibus hearing, Barron testified that he initially observed appellant driving too fast while approaching the intersection, and he thought the vehicle "was going to continue through the intersection." He then "noticed a very abrupt and late stop to the stop sign. I saw the front end of the car dip pretty significantly as it rolled past the stop sign and into the intersection before it proceeded through the intersection." He also testified that the vehicle "came to a stop after the stop sign in the intersection" and that as he followed appellant's vehicle, it made "some pretty abrupt braking motions" at some curves and "made another abrupt braking motion" to slow down before it reached the sign posting the 30-mile-per-hour speed limit.
Appellant's attorney cross-examined Barron, suggesting that there were factual discrepancies between his investigative report and his omnibus-hearing testimony. When asked about the different descriptions of appellant's driving conduct at the intersection, Barron explained that when he wrote "late" in the investigatory report, he meant that appellant did not stop until she was into the intersection.
The district court denied appellant's motion to suppress the evidence obtained after the stop, stating, "Deputy Barron clarified . . . in his testimony that it was the stop into the intersection, not at the intersection. That along with the totality of his ...