Hennepin County District Court File No. 27CR10398
Lori Swanson, Attorney General, St. Paul, Minnesota; and Paul D. Baertschi, Tallen and Baertschi, Minneapolis, Minnesota (for respondent)
James H. Leviton, Minneapolis, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and Bjorkman, Judge.
Appellant challenges his conviction of gross misdemeanor driving with a blood alcohol level above .08 in violation of Minn. Stat. § 169A.20, subd. 1(5) (Supp. 2009) and misdemeanor leaving the scene of an accident in violation of Minn. Stat. § 169.09, subd. 2 (2008), following appellant's stipulation to the prosecution's evidence pursuant to Minn. R. Crim. P. 26.01, subd. 4. Appellant argues that the investigative stop leading to his arrest was unlawful because the police lacked reasonable, articulable suspicion that he was involved in criminal activity when he was seen walking with a limp near the scene of the accident. We affirm.
On the evening of December 17, 2009, Officer Darcy Spong of the Robbinsdale Police Department was dispatched to the scene of an accident, reportedly involving a Dodge truck that was in a ditch. When Officer Spong arrived at the scene, she observed a gray Dodge truck that had struck a pole. The pole was lodged halfway into the engine block. Surveying the scene, Officer Spong also observed a white male standing in front of the truck, "kind of looking at the front of the truck, at the damage on the vehicle." The man walked away. Officer Spong observed no other individuals in the area. Officer Spong radioed her colleague, Sergeant Cody Foss, to look for a "white male wearing a black jacket with red writing on the back" heading south, away from the accident scene. Officer Spong then checked the vehicle to see if anyone was injured.
When Sgt. Foss arrived in the vicinity he observed an individual, later identified as appellant Rory Mysliwiec, who matched the description reported by Officer Spong. As he approached appellant, he noticed that appellant was walking with a limp. As Sgt. Foss turned a corner, he observed that appellant saw his marked squad car and turned the other way. Sgt. Foss activated the lights on his squad car and stopped appellant. As he neared appellant, Sgt. Foss observed that appellant had blood stains on his knees and a red contusion on his forehead. Sgt. Foss also smelled "a strong odor of an alcoholic beverage emitting from his breath and person." Sgt. Foss asked appellant if he knew why he was being stopped. Appellant replied, "yes." Sgt. Foss then asked if appellant was the individual involved in the vehicle crash one block away. Appellant replied, "yes, " and admitted that he was the driver of the car. Sgt. Foss placed appellant in the back of his squad car and transported him back to the scene of the accident where an ambulance was waiting. Appellant refused medical treatment.
Officer Spong also observed that appellant had a "strong odor of an alcoholic beverage on his breath" and thus conducted a preliminary breath test (PBT). The PBT results showed that appellant had a high blood-alcohol concentration. Appellant was arrested and charged with driving while intoxicated and leaving the scene of an accident.
Appellant moved to suppress the evidence obtained from the investigatory stop, arguing that the stop was unlawful. The district court denied the motion, concluding that the stop was justified under the emergency exception because Sgt. Foss observed that appellant matched the description that Officer Spong gave him and because he was walking with a limp. The district court also concluded that the police had reasonable, articulable suspicion that appellant had been involved in the commission of a crime, and that the officers had probable cause to arrest appellant.
Following a Lothenbach hearing pursuant to Minn. R. Crim. P. 26.01, subd. 4, the district court found appellant guilty on ...