Robert David Stoneburner v. Commissioner of Public Safety ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0106
Robert David Stoneburner, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed August 8, 2016
Affirmed
Stauber, Judge
Stearns County District Court
File No. 73-CV-15-4852
Robert David Stoneburner, Stoneburner Law Office, Paynesville, Minnesota (attorney pro
se)
Lori Swanson, Attorney General, Cory Beth Monnens, Assistant Attorney General,
St. Paul, Minnesota (for respondent)
Considered and decided by Johnson, Presiding Judge; Stauber, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges the district court’s order sustaining the revocation of his
driving privileges, arguing that the police officer did not have a reasonable, articulable
suspicion of criminal activity to support an investigatory stop and that his constitutional
rights were violated by a warrantless blood test. We affirm.
FACTS
On March 21, 2015, Cold Spring-Richmond police officer Christi Hoffman, who
had more than twelve years of law-enforcement experience, was on patrol in the city of
Richmond. Hoffman was traveling eastbound when she noticed a westbound car on
Highway 23 that she estimated was traveling over the posted 50-mile-per-hour speed
limit. Hoffman activated her squad car radar unit to confirm her visual observation. The
target car was about one-half mile away at that point, which is within the radar-unit
range. The radar unit showed speeds of 62, 61, and 60, at which point she locked the
display, confirming her visual estimate of speed. Hoffman stopped the car, which was
driven by appellant Robert David Stoneburner.
When Hoffman approached Stoneburner’s car, she saw an open beer can on the
console. Stoneburner was unable to perform a series of field sobriety tests, and a
preliminary breath test showed a 0.119 alcohol concentration. Hoffman arrested
Stoneburner and transported him to the Cold Spring police station, where she read him
the implied-consent advisory. After consulting with an attorney, Stoneburner agreed to
take a blood test, the results of which showed an alcohol concentration of greater than
0.08 percent.
Stoneburner requested a contested implied-consent hearing solely on the issue of
whether the stop was valid. Stoneburner challenged Hoffman’s ability to make a visual
estimate of speed, but he primarily asserted that the radar device had not been properly
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calibrated because Hoffman testified that she performed only a limited internal
calibration test, and not an external calibration measurement. The district court sustained
Stoneburner’s license revocation, concluding that Hoffman had a reasonable and
articulable basis for stopping Stoneburner’s car based on her visual observation of speed.
The district court wrote, “Whether or not Officer Hoffman’s radar was precisely accurate
that night, her visual observation alone was enough to justify a stop of [Stoneburner’s]
vehicle under Minnesota law.” Stoneburner moved for amended findings or a new trial,
and, for the first time, argued that the warrantless blood draw was an unconstitutional
search under this court’s opinion in State v. Trahan, 870 N.W.2d 396 (Minn. App. 2015),
review granted (Minn. Nov. 25, 2015). The district court denied Stoneburner’s motion
without commenting on the constitutional issue raised in his motion. This appeal
followed.
DECISION
I.
Both the United States and Minnesota Constitutions prohibit unreasonable
searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. But a police
officer is permitted to make a limited investigatory stop of a motor vehicle if the officer
has a “particularized and objective basis for suspecting the particular person stopped of
criminal activity.” State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004) (quotation
omitted). Even a minor violation of traffic law will support an investigatory stop. Wilkes
v. Comm’r of Pub. Safety, 777 N.W.2d 239, 243 (Minn. App. 2010). We review the
district court’s decision regarding an investigatory stop de novo and consider the totality
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of the circumstances to determine whether a police officer had a reasonable basis for
justifying the stop. Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 628 (Minn.
2000); State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). We review the district court’s
factual findings for clear error. Britton, 604 N.W.2d at 87.
Stoneburner argues that the radar evidence did not provide a particularized and
objective basis for the stop because Hoffman did not comply with Minn. Stat. § 169.14,
subd. 10(a) (2014). This section states that “[i]n any prosecution in which the rate of
speed of a motor vehicle is relevant” radar evidence is admissible if (1) the officer has
been trained to operate the device; (2) the officer can describe how the device was set up
and operated; (3) there was only minimal interference or distortion in the surrounding
environment; and (4) the device was subject to testing by an external method that is
accurate and reliable. Id. Stoneburner argues that Hoffman did not testify about a
reliable external testing mechanism and, therefore, she had no particularized and
objective basis for the stop. But the district court based its order sustaining Stoneburner’s
license revocation primarily on Hoffman’s visual estimate of speed, not on the radar
reading. The district court relied on Hoffman’s training and her 12 years of law-
enforcement experience.
Minnesota courts have approved the use of visual speed estimation when the
witness has an opportunity to observe the subject vehicle and has experience with
estimating the speed of moving vehicles, particularly when the witness, like Hoffman,
has years of law-enforcement experience and training. See State v. Ali, 679 N.W.2d 359,
367 (Minn. App. 2004); Frank v. Comm’r of Pub. Safety, 384 N.W.2d 574, 576 (Minn.
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App. 1986) (stating that the “factual basis for a routine traffic stop is minimal, and a
traffic violation need not even occur,” and reversing suppression of evidence after
investigatory stop based on an estimation of speed).
Stoneburner argues that Minnesota courts have reversed speeding convictions
when the radar operator had not externally calibrated the radar unit on the date of the
offense. See, e.g., State v. Gerdes, 291 Minn. 353, 359, 191 N.W.2d 428, 432 (1971)
(setting forth standards for use of radar units that include external calibration tests). But
the issue here is not whether the state or the commissioner can prove beyond a reasonable
doubt that Stoneburner was exceeding the speed limit prior to the stop; the issue is
whether Hoffman had a “particularized and objective basis for suspecting” that
Stoneburner was violating the law. Wilkes, 777 N.W.2d at 243. “The factual basis
required to justify an investigative seizure is minimal.” State v. Klamar, 823 N.W.2d
687, 691 (Minn. App. 2012). An officer must be able to show that the stop is not a
“product of mere whim, caprice, or idle curiosity.” Id. (quotation omitted). Hoffman
testified to specific facts that led her to conclude that Stoneburner was violating the law:
she visually observed a car that appeared to be exceeding the speed limit; she had
received training in estimating the speed of moving vehicles; and her radar unit, even if
not properly calibrated, confirmed her visual observation. The district court found that
Hoffman was a credible witness. Because these facts provided a basis for a brief
investigatory stop, the district court did not err by determining that the stop was lawful.
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II.
Stoneburner challenges the constitutionality of the warrantless blood draw, relying
on this court’s decision in Trahan. In Trahan, this court concluded that “[w]hen a
warrantless search of a driver’s blood would not have been constitutional under an
exception to the warrant requirement, charging the driver with violating [the test-refusal
statute], for refusing to submit to a blood test, implicates a fundamental right.” 870
N.W.2d. at 398. But in Trahan, the defendant had refused testing and was charged with
the crime of test-refusal. Here, Stoneburner consented to a blood test, and consent is a
valid exception to the warrant requirement. State v. Brooks, 838 N.W.2d 563, 568 (Minn.
2013). Trahan is not applicable when a defendant has consented to testing, and
Stoneburner does not argue that his consent was invalid, not voluntary, or coerced.
Affirmed.
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