author: STREIT, J.

text:
    Margo Jacenta COLLINS-DRAINE, Jodie Trenise Draine, LaDelmar Dewayne Draine, a minor by his mother and next friend, Margo Jacenta Collins-Draine, Plaintiffs-Appellants, v. Richard KNIEF, individually and in his capacity as a police officer for the City of Waterloo, Iowa, and City of Waterloo, Iowa, Defendants-Appellees.
    No. 98-789.
    Court of Appeals of Iowa.
    July 26, 2000.

      Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellants.
    Ivan T. Webber of Ahlers, Cooney, Dor-weiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellees.
    Heard by SACKETT, C.J., and STREIT and VAITHESWARAN, JJ„ MAHAN, J., takes no part.
   STREIT, J.

The rule of law places restraints on individuals and governments alike. This is a fragile balance to maintain, because individuals and governments must abide by the restraints of a structure of laws. One such restraint is the constitutional protection of our people to be free from seizure by the police. In 1993 Jodie Draine, her mother Margo Collins-Draine, and her brother LaDelmar Draine were detained for a number of hours at the Waterloo police station to prevent them from tipping off some acquaintances about an impending drug raid. The family brought a civil suit under 42 U.S.C. § 1983, claiming a violation of their constitutional rights under the Fourth Amendment. The trial court dismissed their claim, finding their detention did not offend any constitutional prescriptions. We reverse the trial court as it applied incorrect law and did not make factual findings supported by substantial evidence.

I. Background Facts & Proceedings.

In the autumn of 1993 Margo permitted some friends of her daughter to stay at her home in Waterloo. The friends were allegedly caught up in drug and gang activity in Colorado and were looking for a fresh start. Upon moving in, however, it appeared the guests could not put their pasts behind them, and they began dealing in narcotics. Based on tips from confidential informants, the Waterloo police department obtained and executed a search warrant for the Collins-Draine home. They only found a small amount of marijuana. Tired and embarrassed, Margo asked her daughter’s friends to leave. They rented two rooms in a local Waterloo hotel accompanied by one of Margo’s daughters, LaNi-tra.

Approximately ten days later, Waterloo police officer Richard Knief was told by fellow officers about the raid of the Collins-Draine home, the suspected traffickers’ move to the hotel, and reports from confidential informants that drug sales were occurring at the hotel. Knief, stepping up his patrol in the area, kept a sharp eye out for cars with out-of-state license plates. One evening on a pass through the hotel parking lot, Knief spotted the car of Jodie Draine, Margo’s other daughter. Knief watched the vehicle. When Jodie and her boyfriend, Billy Trotter, left the hotel around 10 p.m., Knief stopped the vehicle and asked if he could search the car. Permission was granted, but the officer found nothing illegal. Nevertheless, Officer Knief told Jodie and her boyfriend they needed to come to the police station. Knief took Jodie’s keys and registration, moved her vehicle off the road, placed both parties in the squad car, and took them to the station.

Meanwhile, Margo, a social worker for the department of human services, heard about the stop of her daughter over a police scanner. She immediately left for the police station with her fifteen-year-old son, LaDelmar. When she arrived at the police station, Margo spoke with her daughter about the events leading up to her present predicament. Officer Knief asked Margo about the alleged drug activity occurring at the hotel. Margo denied any knowledge of any illegal activity and rose to leave. Officer Knief told both Margo and her son they could not leave as he was attempting to procure a search warrant for the hotel rooms and he feared Margo or her son would warn the hotel occupants of the impending search.

The warrant was executed around 1 a.m. Shortly thereafter, Margo and LaDelmar were permitted to leave. The police held them approximately three hours. The search of the rooms failed to reveal any evidence of high-volume drug trafficking. The sole evidence of illegal activity was the remnants of a single marijuana cigarette. Despite the complete absence of any evidence tying Jodie to any illegal activity, she was not released until 4 a.m. — a period of six hours.

Jodie, Margo, and LaDelmar filed suit alleging their constitutional rights under the Fourth Amendment were denied under the color of law in violation of 42 U.S.C. section 1988 and they were falsely arrested under common law. Upon trial to the bench in 1998, the district court dismissed the plaintiffs’ claims finding the seizure was reasonable to prevent notification of the impending search.

Jodie, Margo, and LaDelmar appeal, claiming the trial court erred in finding their respective detentions constitutionally permissible. This case was transferred to the Court of Appeals in April 2000.

II. Standard of Review.

We review law actions tried to the district court for correction of errors at law, and the court’s findings of fact have the effect of a special verdict. Iowa R.App.P. 4; Data Documents, Inc. v. Pot-tawattamie County, 604 N.W.2d 611, 614-15 (Iowa 2000). Thus, all findings of fact are binding if supported by substantial evidence. Iowa R.App.P. 14(f)(1); Data Documents, Inc. v. Pottawattamie County, 604 N.W.2d at 614-15. “Evidence is substantial if a reasonable mind could accept it as adequate to reach the same findings.” Bluffs Dev. Co. v. Board of Adjustment, 499 N.W.2d 12, 14 (Iowa 1993). In applying this standard, we view the evidence in a light most favorable to upholding the district court’s judgment. Data Documents, Inc. v. Pottawattamie County, 604 N.W.2d at 615.

III. Claims under 42 U.S.C. § 1983.

In order to support a claim of damages under 42 U.S.C. § 1983, Margo and her family must show Officer Knief (1) deprived them of a right, privilege, or immunity secured by the United States Constitution, and (2) was acting under the color of state law at the time of the deprivation. See Bailey v. Lancaster, 470 N.W.2d 351, 356 (Iowa 1991). There is no question Officer Knief was operating under the color of state law. The sole question before us is whether a constitutional deprivation occurred. Jodie, Margo, and LaDelmar contend Officer Knief s actions violated their clearly established constitutional right to be free from unreasonable seizures under the Fourth Amendment.

The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons from unreasonable government seizures. U.S. Const, amend. IV. Traditionally, any deprivation of a person’s liberty without a warrant issued by a neutral and detached magistrate was considered presumptively unreasonable. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). With time, however, that ironclad presumption became riddled with exceptions whereby the courts found certain seizures did not run afoul of the Constitution, given the inherent reasonableness of the officer’s actions under the circumstances. Id. Among those exceptions carved from the Fourth Amendment is the situation where an officer is permitted to briefly stop and detain an individual for investigatory purposes, if there exists a reasonable and articulable suspicion the person is intending to or just committed a criminal offense. Terry v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968). Such a detention, however, should generally be brief with the officer making diligent efforts to quickly confirm or refute the suspicion. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615-16 (1985). If, however, the officer exceeds the bounds of the investigatory stop, the seizure transforms into a full-fledged arrest, which must then be supported by probable cause. Centanni v. Eight Unknown Officers, 15 F.3d 587, 590 (6th Cir.1994). The bounds of an investigatory stop are excéeded if the officer unnecessarily holds the suspect or transports the suspect to the police station. United States v. Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575, 84 L.Ed.2d at 615 (“Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.”); Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705, 710 (1985) (the full protection of the Fourth Amendment is triggered “when the police without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station.”). Although Terry stops are permissible under the Constitution, there has been no judicially-created exception to the Fourth Amendment that permits law enforcement officials to seize people so as to prevent them from warning suspects of police monitoring. We respectfully note officers place their lives in harm’s way on a regular basis; however, neither the Fourth Amendment nor its éxceptions permit officers to dismiss these constitutional mandates solely because of safety concerns.

We now turn to the individual claims of the appellants. Given the differing circumstances surrounding Jodie’s detention versus the detention of Margo and LaDel-mar, we address their claims separately.

A. The Detention of Jodie. At the outset we must determine if the initial Terry stop of Jodie was supported by reasonable suspicion. To meet the reasonable suspicion standard, an officer must be able to articulate something more than an inchoate and unparticularized hunch. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 308 (1990). Officer Knief said he stopped Jodie’s car to see if the occupants were trafficking drugs because they may have been associated with the hotel group. His suspicions were based upon the following information: (1) the drug raid conducted at the Collins-Draine home, (2) the alleged traffickers moved'to this particular hotel, (3) they were believed to be selling drugs from the hotel, and (4) the license plate of a car in the hotel .lot was registered to Jodie Draine. What Officer Knief did not know was: (1) if Jodie was involved in drug activity, (2) the identity of the two people in the vehicle, (3) what hotel room the car’s occupants had been in, or (4) the length of time the vehicle was parked in the lot. Officer Knief had information that may have supported an investigatory stop of someone leaving the hotel room in question. However, when juxtaposed against the unanswered questions of who these people were, what room they had come from, how long they had stayed, or what they did, articulable suspicion begins to shrink dangerously close to a mere hunch — for simply leaving a hotel complex where believed drug traffickers are operating does not grant an officer the unfettered authority to stop any individuals leaving the hotel. See United States v. Crawford, 891 F.2d 680, 682-83 (8th Cir. 1989). Although we do not find this to be a compelling case of reasonable and articu-lable suspicion — in fact, it appears more akin to a journey of exploration — in viewing the evidence most favorably to upholding the court’s judgment we cannot say the findings are patently unreasonable. The initial stop therefore is upheld.

If the stop is valid, however, the officer must still take steps calculated to quickly dispel or confirm the suspicion. If the officer’s suspicions are dispelled, the detainee must be released. See Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317, 334 (1984). In the present case, Officer Knief searched Jodie’s vehicle. The search uncovered no evidence of any criminal activity. Officer Kniefs suspicions should have been dispelled and Jodie released. Any additional detention was no longer justified as a Terry stop, nor was there probable cause for an arrest. As Officer Kniefs continued seizure of Jodie’s person was without constitutional authority, his actions constituted a violation of Jodie’s Fourth Amendment right to be free from unreasonable seizures.

Even if Officer Kniefs suspicions were not adequately quelled, his subsequent actions of removing Jodie from the scene and transporting her to the police station transformed the brief investigatory stop into an arrest. See Hayes v. Florida, 470 U.S. at 816, 105 S.Ct. at 1647, 84 L.Ed.2d at 710 (the full protection of the Fourth Amendment is triggered “when the police without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station.”); Centanni v. Eight Unknown Officers, 15 F.3d at 590. The district court found Jodie consented to going to the police station. This conclusion is not supported by substantial evidence. The record is completely void of any evidence Jodie willingly went to the police station. She was told she needed to come to the station, was placed in the back of a squad car, and her car keys and registration were taken from her. The only conclusion, based on the evidence, is Jodie was involuntarily taken to the police station, thus dashing any remaining remnants of an investigatory stop and turning it into an arrest not supported by probable cause.

The present case is strikingly similar to Centanni v. Eight Unknown Officers, 15 F.3d 587 (6th Cir.1994). In Centanni, officers were watching the home of a shooting suspect, when Centanni left the residence. Id. at 588. The officers detained her, searched her, brought her to the police station, interrogated her, and then held her for four hours until they were able to effectuate the suspect’s arrest. Id. at 589. Centanni was not involved with the shooting. Id. The Sixth Circuit held the officers’ actions constituted a violation of Cen-tanni’s constitutional rights as there was no exception to the Fourth Amendment permitting the indefinite holding of an innocent party in order to prevent the possibility of forewarning the suspect. Id. at 590-91. The court further found Centan-ni’s prolonged detention was not one of the “ ‘narrowly defined intrusions’ contemplated by Terry [as] there is no such thing as a Terry ‘transportation.’ ” Id. at 591.

Even if we were to assume the officer’s suspicions were not dispelled or Jodie voluntarily went to the police station, her detention at the police station for a minimum of five hours was clearly not the brief investigatory stop contemplated by Terry. United States v. Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575, 84 L.Ed.2d at 615. The search of the hotel rooms was conducted between 1:00 and 1:30 a.m. The search turned up a small amount of marijuana attributed to one of the men from Colorado. Nevertheless, Jodie continued to be restrained for an additional three hours. Such restraint served no legitimate purpose.

The City points to Michigan v. Summers in asserting people may be detained to prevent warning others of an impending search. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Summers only permits officers who hold a valid search warrant to briefly detain occupants of the premises while the search is conducted. Id. at 705, 101 S.Ct. at 2595, 69 L.Ed.2d at 351. The rationale in granting such an exception was fourfold. First, the officers would be armed with a warrant issued by a neutral and detached magistrate — thus eliminating the risk of officers acting outside the bounds of the Constitution. See id. at 701, 101 S.Ct. at 2593, 69 L.Ed.2d at 349. Second, the detention would occur in the detainee’s own residence, which “could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.” Id. at 702, 101 S.Ct. at 2594, 69 L.Ed.2d at 349. Third, there exist such exigencies as possible flight and officer safety. Id. Finally, detention may add to the orderly completion of the search as the occupant may be able to unlock doors or open locked containers. Id. at 703, 101 S.Ct. at 2594, 69 L.Ed.2d at 350.

Summers could not be more inapposite to the present case. Jodie was not detained pursuant to a validly obtained search warrant; there was no evidence she was an “occupant” of the hotel room; and the detention occurred at the police station, was not brief, and did not add to the orderly execution of the warrant. See Centanni v. Eight Unknoum Officers, 15 F.3d at 591. The only factor cited in Summers that supports her detention was the threat she may warn the occupants of the impending search. However, Jodie would not have even learned of the officers’ intention to search the hotel rooms if not for her unjustified detention and interrogation. We cannot sanction an officer to create, either intentionally or mistakenly, an artificial justification for detaining citizens contrary to the Fourth Amendment by merely notifying them of their intent to procure a search warrant. Permitting such an exception would not only be coun-terintuitive but contrary to the protections embodied by the Fourth Amendment.

The trial court erred both in its conclusions of law and in its findings of fact. Jodie’s six-hour detention was not a reasonable Terry seizure, nor can it be construed as permissible under Michigan v. Summers.

B. The Detention of Margo and LaDelmar. The justifications cited for detaining Jodie’s mother and brother at the police station are unpalatable. There is no indication Margo or her son were in any way suspected of any criminal wrongdoing. They arrived at the police station to check on a family member. They were engaged in no suspicious activity. There was no indication they would notify the alleged drug dealers of the police activities. Our previous analysis sufficiently details when an officer may detain individuals pursuant to Terry or Summers. The detention of Margo and LaDelmar, without justification, was a violation of constitutional rights.

The district court intimated the detention of Margo and LaDelmar did not amount to a constitutional violation, given its brevity. First and foremost, being detained approximately three hours for no legally recognizable purpose could hardly be described as a mere moment in time. Additionally, the Fourth Amendment does not permit unreasonable seizures as long as they are considered brief. The brevity of their detention is a matter to be addressed in the award of damages. The trial court erred in finding no constitutional violation.

IV. Conclusion.

In dismissing the claims of the Collins-Draine family, the trial court erred in applying established Fourth Amendment principles and in making factual conclusions not supported by substantial evidence. We therefore reverse and remand the case to the trial court for a finding in conformance with the law and the evidence. As the trial court did not reach damages,' the appellants’ false imprisonment claim, or the City’s liability under the theory of respondeat superior; we direct the court to consider these issues.

REVERSED AND REMANDED.

      . 42 U.S.C. § 1983 (1994) provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.


source: Caselaw Access Project

author: BLATZ, Chief Justice. PAGE, Justice STRINGER, Justice RUSSELL A. ANDERSON, Justice

license: Public Domain

text:
    STATE of Minnesota, LAKE MINNETONKA CONSERVATION DISTRICT, petitioner, Appellant, v. Lynn Edward HORNER, Respondent.
    No. C5-99-1027.
    Supreme Court of Minnesota.
    Oct. 12, 2000.

      Steven M. Tallen, Tallen & Baertschi, Minneapolis, for appellant.
    Marc S. Berris, David G. Roston, Segal, Roston & Berris, PLLP, Minneapolis, for respondent.
    Amy Klobuchar, Hennepin County Attorney, Karla F. Hancock, Sr. Assistant County Attorney, Minneapolis, Bonnie La-Batt, Mothers Against Drunk Driving, St. Paul, for amici curiae.
   OPINION

BLATZ, Chief Justice.

The state brings this appeal of the district court’s pretrial order to suppress evidence of intoxication and dismiss operating a watercraft while under the influence charges. The state argues that special deputies of the Hennepin County Sheriffs Department, Water Patrol, have authority to investigate the charges as peace officers or as private citizens, and thus their investigation of respondent was authorized and the evidence of intoxication should not be excluded. Alternatively, the state argues that probable cause to arrest respondent existed before the special deputies investigated. The court of appeals affirmed the district court’s determination that the special deputies lacked probable cause to arrest respondent before he boarded the patrol boat, and lacked authority to investigate further to obtain probable cause. We hold that special deputies do not have the authority, either as peace officers or as private citizens, to administer a preliminary breath test or investigate beyond their direct observations of an offense, but that even in the absence of this evidence, the deputies effected a lawful citizen’s arrest.

On the evening of September 5, 1998, Stephanie Jung and Joseph Martin were acting as special deputies of the Hennepin County Sheriffs Department, Water Patrol (Water Patrol), patrolling Lake Minnetonka for waterway violations. Special deputies are unpaid volunteers who assist the Hennepin County Sheriffs Department in patrolling the lakes and rivers of Hennepin County. Although Jung and Martin were uniformed and operating a Sheriffs Department motorboat possessing lights, sirens, and a large “Sheriff’ logo, they were not licensed peace officers.

At approximately 6:15 p.m., Jung and Martin were docked at the Gray’s Bay Marina on Lake Minnetonka. Jung observed a personal watercraft entering Gray’s Bay, operated by respondent Lynn Edward Horner. Jung thought that the personal watercraft lacked a required registration decal, in violation of the Lake Minnetonka Conservation District (LMCD) Code. Jung relayed her observation to Martin and both boarded the patrol boat to pursue respondent. Next, Jung and Martin both observed respondent create a large, rolling wake with his watercraft, a possible violation of section 3.02, subd. 4, of the LMCD Code, the “quiet waters” ordinance — classified as a misdemeanor. See LMCD Code § 3.02, subd. 4 (1997).

Jung and Martin positioned their patrol boat in respondent’s path, flashed the boat’s red emergency lights and hailed respondent, saying, “Sheriffs Department, would you please pull alongside our boat.” After respondent complied, Jung observed that respondent had an unopened can of beer between his legs, smelled of alcohol, and had bloodshot eyes and slurred speech. Similarly, Martin observed that respondent had a can of beer between his legs, smelled strongly of alcohol, had “extremely bloodshot eyes,” and his coordination “seemed to be off considerably.”

Martin ordered respondent to board the patrol boat and respondent complied. Jung and Martin both testified at a pretrial hearing that once they had stopped respondent, respondent was not free to leave. In addition, Jung testified that she had not concluded that respondent was under the influence of alcohol before he boarded the patrol boat.

Approximately five minutes after respondent boarded the boat, Martin administered three field sobriety tests to respondent. Martin testified that respondent had difficulty with all three tests. Martin next administered a preliminary breath test to respondent, which respondent failed. Immediately thereafter, Martin called in their position to the peace officer to whom he reported, a deputy sheriff, and arrested respondent for operating a watercraft while under the influence. After arresting respondent, Jung and Martin transported respondent to shore where a Hennepin County Deputy Sheriff administered to respondent an implied consent advisory and a breathalyzer test. The test results showed an alcohol concentration of .14 at approximately 7:35 p.m. The deputy sheriff then took respondent into custody.

Respondent was charged under the LMCD Code with operating a watercraft while under the influence, boating with an alcohol concentration of .10 or more, having an alcohol concentration of .10 or more within two hours of operating a motorboat, careless operation of a watercraft (together, “the BWI laws”), and violating the quiet waters ordinance. See LMCD Code §§ 3.17, 3.01, subd. 2, 3.02 (1997) (incorporating the boating while intoxicated and personal watercraft provisions of Minn. Stat. §§ 86B.313 and 86B.331, which prohibit the careless operation of a watercraft, and stating the quiet waters regulations, respectively). Before trial, respondent moved to suppress all evidence of intoxication gathered after he boarded the patrol boat and to dismiss all BWI charges because Martin and Jung had no probable cause to arrest respondent for violating the BWI laws.

The district court held a hearing pursuant to State ex rel Rasmussen v. Tahash, 272 Minn. 539, 553-55, 141 N.W.2d 3, 13-14 (1965), to consider the motions. After hearing the testimony of Jung and Martin, the court determined that Jung’s and Martin’s observations made before respondent boarded the patrol boat did not amount to probable cause justifying respondent’s arrest for violation of the BWI laws. The court further determined that because Jung and Martin told respondent to board the patrol boat without probable cause to arrest him for violation of the BWI laws, the initial encounter became an investigatory stop. The court then observed that, because special deputies are not peace officers, they do not have peace officers’ authority to perform preliminary breath and field sobriety tests with only reasonable and articulable suspicion. Finally, the district court determined that as private citizens, Jung and Martin also lacked the authority to conduct investigations on reasonable and articulable suspicion.

Concluding that the results of the preliminary breath and field sobriety tests were obtained pursuant to an illegal investigatory stop, the district court granted respondent’s motion to suppress this evidence and all evidence obtained thereafter, including the sheriffs breathalyzer test. Accordingly, the district court then granted respondent’s motion to dismiss all charges, including a charge alleging violation of the lake’s quiet waters ordinance.

The state appealed this pretrial order pursuant to Minn. R.Crim. P. 28.04, subd. 1, which permits prosecutors to appeal as of right a district court’s pretrial order if based on a question of law. The court of appeals affirmed the district court’s determination that the special deputies lacked probable cause to arrest respondent for violating the BWI laws in the absence of the results of the preliminary breath and field sobriety tests. See State v. Horner, 605 N.W.2d 405, 410-11 (Minn.App.2000). The court of appeals also affirmed the district court’s conclusions that special deputies do not have the same powers to arrest as licensed peace officers, and that Jung and Martin, as private citizens, had no authority to subject respondent to an investigatory stop. See id. at 409-10. However, the court of appeals reversed the district court’s dismissal of the quiet waters ordinance charge and remanded for consideration of that charge. See id. at 411. The state then appealed to this court.

I.

We will reverse a district court’s pretrial decision to suppress evidence or dismiss only if the state demonstrates that the district court has clearly and unequivocally erred and that the error, unless reversed, will have a critical impact on the state’s ability to successfully prosecute the defendant. See State v. Scott, 584 N.W.2d 412, 416 (Minn.1998); Minn. R.Crim. P. 28.04, subd. 1(1). We first determine whether, if the district court clearly and unequivocally erred in issuing its order, the error will have a critical impact on the state’s case. See Scott, 584 N.W.2d at 416. Suppression of “all evidence * * ⅜ obtained subsequent to [respondent] being ordered to board Jung and Martin’s patrol boat,” as the district court ordered, would have a critical impact on the state’s ability to prosecute respondent because the primary evidence of respondent’s intoxication would be inadmissible. Thus, we turn to the question of whether the district court clearly and unequivocally erred in issuing the order appealed.

To answer that question, we first determine whether the water patrol officers should be treated as peace officers for purposes of gathering evidence of boating while intoxicated. If so, the results of the preliminary breath and field sobriety tests are admissible. If not, we must determine whether the special deputies are otherwise authorized to administer these tests. If not, the investigation results are not admissible and we must determine whether, in the absence of that evidence, the officers, acting as private citizens, properly arrested respondent so as to support administration of the breathalyzer test by the sheriff pursuant to Minn.Stat. § 169.123, subd. 2 (1998) (allowing administration of blood, breath, or urine test for presence of alcohol upon arrest for violation of MinmStat. § 169.121).

II.

The state claims that the court erroneously failed to view the water patrol officers as peace officers. Specifically, the state argues that special deputies are authorized by the LMCD Code and the Hen-nepin County Board to enforce the regulations of the conservation district, and are therefore peace officers for these purposes. See LMCD Code § 1.09 (1997) and Hennepin County, Minn., Ordinance No. 14 (1996).

Statutory construction is a question of law that we review de novo. See Sorenson v. St Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). Lake Minnetonka, Minn., Conservation Dist. Code § 1.09 states:

Special deputies duly appointed and sworn by the Hennepin County Sheriff are hereby authorized to enforce the provisions of this Code by the issuance of citations and such other means as permitted by state law.

Similarly, Hennepin County, Minn., Ordinance. No. 14 § 1, states:

The County Board of Hennepin County ordains that Special Deputies * * * are hereby granted the authority to enforce, through the issuance of citations and such other means as permitted by state law, the provisions of any state or local statutory or regulatory provision governing water, boat, vehicle or traffic safety.

Each of these provisions authorizes the special deputies to enforce water safety laws via citations and “such other means as permitted by state law.” We must, however, turn to state law to determine whether it allows special deputies to act as peace officers.

State law does not explicitly recognize a special deputy as a form of peace officer. A peace officer is defined as:

an employee or an elected or appointed official of a political subdivision or law enforcement agency who is licensed by the [peace officer standards and training board], charged with the prevention and detection of crime and the enforcement of the general criminal laws of the state and who has the full power of arrest, and shall also include the Minnesota state patrol, agents of the division of alcohol and gambling enforcement, state conservation officers, and metropolitan transit police officers.

MinmStat. § 626.84, subd. 1(c) (1998) (emphasis added). There is no question the special deputies are not licensed by the peace officer standards and training board and therefore are not included in this definition.

The legislature has provided for part-time peace officers to assist in the protection of the rights and safety of the public. See Minn.Stat. § 626.8461 (1998). Like full-time peace officers, these officers also must establish enumerated competency requirements and pass a licensing examination. See Minn.Stat. §§ 626.8461-.8463 (1998). Again, there is no question the special deputies are not included in this description of part-time peace officers.

Moreover, we hesitate to liberally construe the definition of a peace officer. Even licensed part-time officers must act under the supervision of a full-time licensed peace officer.. See Minn.Stat. § 626.8465, subd. 1 (1998). In addition, it is a misdemeanor for anyone not a peace officer to perform an act reserved by law for licensed peace officers. See Minn.Stat. § 626.863 (1998). This statutory scheme illustrates the legislature’s concern that anyone exercising law enforcement authority be trained and certified. Because the special deputies lack this particular training and certification, they cannot be considered peace officers.

Law enforcement authority frequently involves administering a preliminary breath test to help determine whether a person is intoxicated. The legislature has mandated that the preliminary screening breath test be administered by a peace officer. See Minn.Stat. § 169.121, subd. 6(a) (1998). Field sobriety tests are not directly addressed by statute. Nonetheless, we are reluctant to divine from that absence an intent that persons other than law enforcement personnel are authorized to conduct such tests for intoxication. Perhaps no area of criminal investigation is regulated as thoroughly as that of gathering" evidence of intoxication for purposes of our DWI and BWI laws. See Minn. Stat. §§ 169.121, subd. 6,169.123.

Despite this statutory context, the state asks us to hold that unlicensed special deputies have the authority to administer preliminary breath and field sobriety tests. We decline to do so. To find the special deputies have the authority to administer these tests for the enforcement of boating safety laws directly contravenes the statutory provisions regarding breath testing and arguably undermines the legislative scheme for gathering evidence of intoxication and the training, certification, and licensure of peace officers. Because state law does not explicitly treat special deputies as peace officers and does not contemplate that anyone other than peace officers will administer tests for intoxication, the phrase “such other means as permitted by state law” in the LMCD Code and Henne-pin County Ordinances does not grant special deputies the authority to administer preliminary breath and field sobriety tests. Therefore, we hold that special deputies are not peace officers with authority to administer preliminary breath and field sobriety tests.

III.

Because we hold that special deputies are not peace officers, we consider their actions as equivalent to those of private citizens. A private person may arrest another:

1. for a public offense committed or attempted in the arresting person’s presence;
2. when the person arrested has committed a felony, although not in the arresting person’s presence; or
3. when a felony has in fact been committed, and the arresting person has reasonable cause for believing the person arrested to have committed it.

Minn.Stat. § 629.37 (1998). The boating while intoxicated charges involved here were misdemeanor offenses. See Minn. Stat. § 86B.331, subd. 1(c) (1998) incorporated into LMCD Code § 3.17 (1997); see also § 169.121, subds. 1(a), 3(b), 11 (1998). Therefore, the special deputies were authorized to arrest respondent if the offenses were committed in their presence. See Smith v. Hubbard, 253 Minn. 215, 220, 91 N.W.2d 756, 761 (1958) (holding a public offense includes a misdemeanor).

The statute is silent with respect to authorizing citizens to investigate and secure evidence in addition to their direct observations. While we have never addressed this question, we have decided several cases concerning the arrest powers of peace officers outside of their jurisdiction. See Piotrowski v. Commissioner of Pub. Safety, 453 N.W.2d 689, 690-91 (Minn. 1990); State v. Schinzing, 342 N.W.2d 105, 108-09 (Minn.1983); State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn.1981); State v. Filipi, 297 N.W.2d 275, 277-78 (Minn.1980). The state argues that because these cases hold that a peace officer outside of his jurisdiction has the authority to effect a citizen’s arrest, the powers of citizen’s arrest must include the power to perform investigations. These cases are distinguishable on their facts, as they all involve the powers of a peace officer outside his jurisdiction, not the powers of a private citizen. Given the comprehensive certification and licensing program for peace officers, determining the authority of a peace officer to investigate crimes outside of the officer’s jurisdiction simply involves different considerations than the considerations inherent in allowing private citizens to investigate.

We have in the past emphasized the importance of the arresting person’s direct observations in establishing a basis for the arrest. See Smith, 253 Minn, at 221, 91 N.W.2d at 762 (holding that an offense is committed in the presence of an officer when the officer becomes aware of offense as a result of his sensory perception). Particularly in the context of suspected intoxication, however, we are concerned that a ruling effectively encouraging a citizen to investigate the extent of suspected intoxication may result in injury or other offense to the citizen. Moreover, we note that there is still opportunity for a valid post-arrest investigation because citizens are required to take the arrested person to a judge or peace officer “without unnecessary delay.” Minn.Stat. § 629.39 (1998). We therefore hold that citizens are not authorized to conduct investigations after observing a public offense committed in the citizen’s presence under Minn.Stat. § 629.37. As such, even if the special deputies are considered private citizens, the district court properly excluded the results of both the field sobriety and preliminary breath tests.

IV.

Finally, we must decide whether the citizen’s arrest was valid for purposes of authorizing the sheriff to proceed with breathalyzer testing under Minn. Stat § 169.123. Minn.Stat. § 629.37 does not define the quantum of evidence required to determine that a public offense has been committed in one’s presence. Without reference to the statute, we have previously used a probable cause standard. See Johnson v. State, Dep’t of Pub. Safety, 351 N.W.2d 2, 5 (Minn.1984). Probable cause to arrest exists where “the objective facts are such that under the circumstances ‘a person of ordinary care and prudence [would] entertain an honest and strong suspicion’ that a crime has been committed.” State v. Johnson, 314 N.W.2d 229, 230 (Minn.1982) (alteration in original) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978)). On appeal, “we review the district court’s findings of historical fact * * * for clear error under the clearly erroneous standard * * State v. Lee, 585 N.W.2d 378, 383 (Minn.1998). While we give “due weight to inferences drawn from those facts by resident judges,” we review de novo the legal conclusion of whether probable cause existed. Id. at 382-83 (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

Before reaching its conclusion, the district court had an opportunity to listen to the witnesses and ascertain credibility. Here, after hearing evidence of what the special deputies observed prior to ordering respondent aboard the patrol boat, the district court concluded that there was no probable cause to arrest respondent for violating the BWI laws. However, the district court’s findings do not clearly support its conclusion that no probable cause existed. Instead of setting forth what facts the court determined to weigh against probable cause, the court stated in a memorandum incorporated into its order the conflicting testimony it received without clearly rejecting or adopting it. For example, the court noted:

Martin testified that Horner’s eyes appeared red and bloodshot, but he also testified that Horner had not been wearing any eye protection when riding his personal watercraft. Martin and Jung testified that they detected an odor of alcohol after stopping Horner, but they also testified that it is not illegal to consume alcoholic beverages when operating watercraft. Martin and Jung also testified that Horner’s speech seemed slurred. * ⅜ *
Jung testified at the hearing that in her opinion when Martin ordered Hor-ner into the patrol boat that they did not yet have probable cause to arrest Hor-ner for BWI. It was only after Horner was in the patrol boat and had submitted to the field sobriety tests did Jung and Martin take him into custody. The only indicia as to Horner’s intoxication that Jung and Martin testified as occurring before he was ordered into the patrol boat consisted of his red eyes, somewhat slurred speech and the presence of the odor of alcohol. Horner’s red eyes could have been the results of little sleep or from riding the personal watercraft without eye protection, and his somewhat slurred speech could have been the way he normally talked. As for the odor of alcohol, it is not illegal to consume alcohol while operating a watercraft. Neither Jung nor Martin testified that the manner in which Horner operated his personal watercraft was indicative of intoxication. Absent some additional indicia of intoxication, Jung and Martin did not initially have probable cause to arrest Horner for BWI.

After receiving this evidence, the court was free to reject all or parts of the deputies’ testimony as not credible. While the court may in fact have done just that, the record does not support such an inference on our part. Rather, a fair reading of the court’s memorandum suggests that the court credited the special deputies’ testimony but found a lack of probable cause because further indicia of intoxication were needed. We disagree with that conclusion.

While probable cause to arrest requires something more than mere.suspicion, it requires less than the evidence necessary for conviction. See State v. Camp, 590 N.W.2d 115, 119 n. 9 (1999) (citing State v. Fish, 280 Minn. 163, 169, 159 N.W.2d 786, 790 (1968)). On this record we hold that there were sufficient facts “such that under the circumstances ‘a person of ordinary care and prudence [would] entertain an honest and strong suspicion’ that a crime has been committed.” State v. Johnson, 314 N.W.2d at 230 (alteration in original) (citations omitted).

Accordingly, we hold that the special deputies were not authorized either as peace officers or private citizens to investigate whether respondent was intoxicated, and therefore affirm the district court’s order suppressing results of the field sobriety and preliminary breath tests. We further hold that the special deputies properly effected a citizens’ arrest, thereby providing a basis for the sheriffs breathalyzer test. Consequently, we reverse the district court’s order dismissing the boating while intoxicated charges.

Affirmed in part, reversed in part, and remanded.

PAGE, Justice

(concurring in part, dissenting in part).

The court is correct in its conclusion that special deputies are not peace officers. The court is also correct in concluding that Jung and Martin had probable cause to arrest Horner. I write separately for two reasons: first, to more completely set forth the proper probable cause analysis; and second, to express my disagreement with the court’s affirmance of the district court’s order suppressing evidence obtained from the field sobriety and preliminary breath tests conducted by Jung and Martin.

When reviewing a district court’s probable cause determination, we are to give “ ‘due weight to inferences drawn from [the historical] facts’ ” found by the district court, but we review de novo whether probable cause existed. State v. Lee, 585 N.W.2d 378, 382-83 (Minn.1998) (citation omitted); see also State v. Moorman, 505 N.W.2d 593, 599 (Minn.1993) (noting that this court independently reviews the facts to determine the reasonableness of police conduct because the issue of probable cause affects constitutional rights). We have stated that probable cause to arrest requires sufficient facts “such that under the circumstances ‘a person of ordinary care and prudence [would] entertain an honest and strong suspicion’ that a crime has been committed.” State v. Johnson, 314 N.W.2d 229, 230 (Minn.1982) (alteration in original) (citation omitted). The inquiry is objective, not subjective. See State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997). When determining probable cause, we consider the totality of the circumstances. See generally State v. Carlson, 267 N.W.2d 170, 174 (Minn.1978). While probable cause to arrest requires something more than a mere suspicion, it requires less than the evidence necessary for conviction. See State v. Camp, 590 N.W.2d 115, 119 n. 9 (Minn.1999).

Applying these rules to this case can lead to only one conclusion — that Jung and Martin had probable cause to make a citizen’s arrest. Before ordering Horner to board the patrol boat, Jung observed that Horner had an unopened beer can between his legs, smelled of alcohol, had bloodshot eyes, and that his speech seemed to be slurred. Before Horner boarded the patrol boat, Martin observed that Horner had a beer can between his legs, smelled strongly of alcohol, had “extremely bloodshot eyes,” and that Horner’s coordination “seemed to be off considerably.” Both Jung and Martin observed Horner violate the quiet waters ordinance. Each of these facts support probable cause. All of these facts are uncontroverted. While the district court’s characterization of these facts differed slightly from the actual testimony, the district court nonetheless relied on Jung’s and Martin’s testimony in determining that there was no probable cause to arrest Horner. The district court apparently believed that, because the indicia of intoxication testified to by Jung and Martin could have been caused by something other than intoxication, those indicia should be ignored or at least discounted in the probable cause analysis.

In concluding that probable cause did not exist, the district court makes much of the fact that Horner was not wearing eye protection while riding the personal watercraft, that the law does not forbid the consumption or possession of alcohol on watercraft, and that, in Jung’s opinion, there was no probable cause to arrest Hor-ner before Horner boarded the patrol boat. The district court’s reliance on these facts is misguided. The fact that there may be other reasons for Horner’s bloodshot eyes does not mean that his bloodshot eyes do not support probable cause. The question is not whether Hor-ner’s bloodshot eyes establish that he was boating while intoxicated; the question is whether his bloodshot eyes support objective probable cause to believe that he was boating while intoxicated. The fact that Horner’s bloodshot eyes may have been caused by something other than intoxication does not mean that probable cause did not exist. See generally State v. Johnson, 314 N.W.2d 229, 230 (Minn.1982) (“The fact that it later turns out that officers were wrong does not mean that they did not have probable cause at the time they made their assessment”).

Further, the fact that the law does not prohibit the consumption or possession of alcohol on watercraft does nothing to support the notion that Jung and Martin did not have probable cause to arrest Horner. When viewed in light of the totality of the circumstances, the fact that Horner had a can of beer in his possession, whether opened or not, whether legal or not, provides strong support for objective probable cause. Possession of the can of beer, by inference, provides a reasonable explanation for Horner’s slurred speech, lack of coordination, and the strong smell of alcohol on his breath, not to mention his bloodshot eyes.

Finally, the fact that Jung testified that she did not believe that probable cause existed before Horner boarded the patrol boat is of no moment. The question is whether there was objective probable cause, not whether Jung subjectively thought there was probable cause. See State v. Beckman, 354 N.W.2d 432, 436 (Minn.1984) (officers’ subjective belief that they did not have probable cause does not mean that objective probable cause did not exist); see also Costillo v. Commissioner of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987). Clearly on this record, there was objective probable cause.

It is inconceivable that a person of ordinary care and prudence observing the facts available to Jung and Martin at the time they ordered Horner to board the patrol boat would not entertain an honest and strong belief that a crime had been committed. If observing someone riding a jet ski in violation of a quiet waters ordinance who has the strong smell of alcohol on their breath, has extremely bloodshot eyes, slurred speech, and whose coordination seems to be “off considerably,” all the while holding a can of beer, does not create objective probable cause, I am not sure what, if anything, would.

While I agree with the court’s conclusion that Jung and Martin had probable cause to arrest Horner, I disagree with that portion of the court’s opinion affirming the district court’s suppression of the field sobriety and preliminary breath tests they conducted. If Jung and Martin had probable cause to make a citizen’s arrest, it seems to me that they were not precluded from investigating further. Particularly disturbing is the court’s failure to provide any relevant authority for its conclusion that Jung and Martin were not authorized to investigate whether Horner was intoxicated. The sweeping breadth of the court’s decision is also disturbing, as it appears ■ to go so far as to preclude a person, who effects a lawful citizen’s arrest, from asking questions of the arrested person. This result is anomalous, to say the least, given that the law does not generally preclude citizens from posing questions to one another. The court notes, without explanation, that it has in the past emphasized the arresting person’s direct observations in establishing a basis for the arrest. The problem, of course, is that questions relating to the arresting person’s direct observations go to whether the citizen’s arrest was valid; they are not relevant and do not go to the question of whether the arresting person may investigate further. And, while I share the court’s concern that encouraging citizens to investigate the extent of the arrested person’s suspected intoxication could result in injury or other offense to the citizen, that concern does not justify the court’s failure to provide a doctrinal basis, constitutional or otherwise, for its decision. The question here is not whether it is wise for citizens to conduct such investigations, but whether there is some authority that precludes them from conducting such investigations.

In reaching its conclusion, .the court ignores a plethora of decisional law from other jurisdictions explaining why a person who makes a valid citizen’s arrest is authorized to investigate further. See Jack v. Rhay, 366 F.2d 191, 192 (9th Cir.1966) (upholding a search conducted by the owner of a grain elevator and the retired police officer he employed as a security guard as valid incident to their lawful citizen’s arrest; relying on the facts set out by the court in State v. Jack, 63 Wash.2d 632, 388 P.2d 566 (1964)); see also United States v. Rosse, 418 F.2d 38, 39 (2d Cir. 1969) (upholding search by postal inspectors as valid search incident to lawful citizen’s arrest) (citing United States v. Viale, 312 F.2d 595, 600 (2d Cir.1963)); Montgomery v. United States, 403 F.2d 605, 609 (8th Cir.1968) (same); Ward v. United States, 316 F.2d 113, 119 (9th Cir.1963) (same); United States v. Kriz, 301 F.Supp. 1329, 1331 (D.Minn.1969) (same).

Because Horner has failed to identify any aspect of the field sobriety and preliminary breath tests that would justify their exclusion had they been administered by a peace officer, the results of those tests are admissible. Therefore, I would reverse that part of the district court’s decision suppressing evidence of Horner’s intoxication gathered aboard the patrol boat.

STRINGER, Justice

(dissenting).

I respectfully dissent from the holding of the majority that the trial court erred in concluding that the deputies did not have probable cause to arrest Horner for boating while intoxicated. The majority supports its conclusion stating, “the district court’s findings do not clearly support its conclusion that no probable cause existed.” What could be more clear than the trial court’s conclusion that the only three bases for probable cause were readily explainable by circumstances unrelated to intoxication? Regardless of whether the trial court did or did not credit the deputies’ testimony, its concern for lack of indicia of intoxication is clearly stated and we accord wide deference to its conclusions. See State v. Camp, 590 N.W.2d 115, 118 (Minn. 1999) (stating that trial court’s finding of probable cause to arrest not reversible unless clearly erroneous). The majority does not identify other indicia of intoxication and, on the basis of this record, I cannot agree with the majority in substituting its judgment for the trial court’s considered review of the facts. The trial court’s conclusion as to lack of probable cause was not clearly erroneous.

RUSSELL A. ANDERSON, Justice

(dissenting).

I join in the dissent of Justice STRINGER.

      . Martin testified that the type of watercraft respondent was operating is commonly known as a jet ski.

      . The special deputies were apparently mistaken as to respondent's registration violation, as Jung testified that she found no watercraft registration violations and that respondent was not cited for any registration violation.

      .Martin also testified that he observed respondent's speech to be slurred, but only after respondent had boarded the patrol boat and submitted to field sobriety tests.

      . The court notes that a “fair reading” of the district court’s memorandum suggests that it credited the testimony of Special Deputies Jung and Martin, but found no probable cause because further indicia of intoxication were needed. I do not believe this is merely a "fair reading” of the district court’s memorandum. Given the absence of contravening evidence or any indication that the district court thought that Jung and Martin lacked credibility, any other conclusion would be inexplicable.

      . For example, Martin testified that Homer’s eyes were "extremely bloodshot.” The district court indicated that "Martin testified that Horner’s eyes appeared red and bloodshot." (Emphasis added.)

      . If the situation was reversed and objective probable cause was lacking, I would hope that the district court would not rely on the arresting officer's subjective belief that probable cause did exist to support the conclusion that probable cause in fact existed.


author: AMUNDSON, Judge

text:
    Paul J. HAGEN, plaintiff, Burmeister & Associates, Inc., Appellant, v. AMERICAN AGENCY, INC., Respondent.
    No. C3-00-496.
    Court of Appeals of Minnesota.
    Oct. 17, 2000.

      Paul J. Hagen, Deep Haven, MN (pro se appellant).
    Eric J. Magnuson and Marc A. Al, Rider, Bennett, Egan & Arundel, L.L.P., Minneapolis, MN; and Rodney J. Mason, Chandler and Mason, Ltd., St. Paul, MN (for appellant Burmeister & Associates, Inc.).
    Joseph M. Sokolowski and David A. Or-enstein, Parsinen, Kaplan, Rosberg & Got-lieb, P.A., Minneapolis, MN; and Leon R. Erstad, Erstad & Riemer, P.A., Minneapolis, MN (for respondent American Agency, Inc.).
    Considered and decided by TOUSSAINT, Chief Judge, AMUNDSON, Judge, and STONEBURNER, Judge.
   OPINION

AMUNDSON, Judge

Paul Hagen brought a declaratory judgment action after his former employer, appellant Burmeister & Associates, Inc., accused him of violating a non-compete agreement by soliciting former clients. The district court determined that Hagen breached the covenant not to compete and misappropriated trade secrets, but held that Hagen’s current employer, respondent American Agency, Inc., was not liable. In the first appeal, holding American Agency, Inc. liable for Hagen’s violation of the Trade Secrets Act if the misappropriation occurred in the course and scope of employment, this court reversed. After remand, the district court found that the misappropriation was not within the course and scope of employment. Burmeister now appeals.

FACTS

On October 10, 1991, Hagen sold his insurance agency to Burmeister & Associates, Inc. (Burmeister). This sale included three contracts: an asset purchase agreement, a producer agreement, and a consulting agreement. Both the producer and consulting agreements contained covenants not to compete, which were effective until February 2001. They also agreed that Hagen would not disclose account information on a list of policyholders that Bur-meister was purchasing. Hagen worked with Burmeister as an independent contractor and consultant after the sale, and on November 1, 1992, he became an employee of Burmeister.

In November 1994, while still employed by Burmeister, Hagen contacted American Agency, Inc. (American Agency), regarding prospective employment. Hagen discussed and provided copies of his covenants with Burmeister to American Agency’s lawyers. He informed American Agency that Burmeister gave him permission to solicit insurance business from close family and friends upon his departure. In December 1994, Hagen again discussed his non-compete agreements with American Agency. American Agency hired Hagen and he began working for them.

American Agency approved a draft of a letter that Hagen indicated he would use for the solicitation of business from close friends and family members. The next day, Hagen began to send letters to former clients, many of whom were later determined to be outside of his “close friends and family.” American Agency never requested to see the list of those Hagen was soliciting, nor did they approve this list; Hagen never shared his planned solicitation list before solicitation letters were mailed. It was later determined that of Burmeister’s 1000-name policyholder list, approximately 50 people could be classified as Hagen’s “close friends and family.” Hagen actually solicited approximately 250 of the 1000 names on the list. American Agency first learned of the extent of Hagen’s mailings when Burmeis-ter’s attorney contacted them.

Hagen commenced this action against Burmeister for declaratory judgment, contending that the contracts he signed in conjunction with the asset sale did not prohibit him from competing with Bur-meister. Burmeister counterclaimed, arguing that by soliciting clients from his policyholder list, Hagen breached the non-compete and non-disclosure provisions of the contracts and violated the Minnesota Trade Secrets Act (MTSA). It also filed and served a third-party complaint against American Agency for tortious interference, claiming that American Agency had encouraged Hagen to breach his non-compete and non-disclosure obligations.

The district court found Hagen violated the covenant not to compete and the MTSA. But the court dismissed all claims against American Agency, concluding that American Agency had no reason to know that Hagen’s actions violated his non-compete agreement with Burmeister.

On appeal, this court held that the district court erred when it dismissed Bur-meister’s MTSA claim against American Agency, requiring a determination on retrial,

whether Hagen was acting within the course and scope of his new employment when he mailed his solicitation letter to individuals listed on the confidential customer list.

Hagen v. Burmeister & Assoc., Inc., No. C8-98-864, 1999 WL 31130, at *4 (Minn. App. Jan.26,1999).

The parties again filed cross-motions for summary judgment and the district court held that it could not “find that American [Agency] knew or ratified [Hagen’s] conduct,” and therefore should not be held liable for his misappropriation of secrets. The district court held that American Agency had not authorized Hagen to solicit customers on the policy list other than close friends and family, and had not ratified the unauthorized mailing. The district court found that Hagen’s unauthorized conduct was not “so incidental to conduct authorized as to be within the scope of the employment.” This appeal followed.

ISSUE

Is an employee acting within the course and scope of his employment, when on his new job, he solicits more of his former employer’s customers than permitted by a non-compete agreement, the details of which his current employer knew?

ANALYSIS

Burmeister challenges the district court’s decision to grant summary judgment on the basis of its conclusion that, as a matter of law, Hagen was not acting within the course and scope of his employment with American Agency when he made improper solicitations. On an appeal from summary judgment where there are no genuine issues of material fact, our inquiry is whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). This court is not bound by and need not give deference to the district court’s decision on a purely legal issue. Frosh-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). Similarly, a .district court’s rulings on mixed questions of law and fact are not binding on this court but are subject to independent review. Meyering v. Wessels, 383 N.W.2d 670, 672 (Minn.1986).

I.

Under the principle of respondeat superior, an employer is vicariously liable for the torts committed by an employee within the course and scope of employment. Fakrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn.1999). Here, the parties dispute the applicable test for determining whether Hagen’s conduct fell within the course and scope of his employment. Two avenues of caselaw present themselves.

Burmeister contends that the applicable test is set forth in Lange v. National Biscuit Co., 297 Minn. 399, 211 N.W.2d 783 (1973). The Lange test provides that an employer may be held vicariously liable for an einployee’s misconduct, even if intentional, when “(1) ‘the source of the [misconduct] is related to the duties of the employee,’ and (2) ‘the [misconduct] occurs within work-related limits of time and place.’ ” Fakrendorff, 597 N.W.2d at 910 (quoting Lange, 297 Minn. at 404, 211 N.W.2d at 786).

But where, as here, an employer has specifically authorized an employee to compete with other businesses, and that employee goes too far in effecting that competition, our analysis is controlled by Kasner v. Gage, 281 Minn. 149, 161 N.W.2d 40 (1968). Kasner states that an employer cannot be liable for the tortious or criminal acts of an employee without “a supported finding that the act * ⅝ * is ‘conduct of the same general nature as that authorized, or incidental to the conduct authorized.’ ” Kasner, 281 Minn, at 151-52, 161 N.W.2d at 42 (quotation omitted).

While both Kasner and Lange address the same general issue of an employer’s liability for the intentional torts of its employee, the facts of each case is unique. In Kasner, the court refused to hold a sales corporation liable for its agent’s misappropriation of a competitor’s records. Kasner, 281 Minn, at 156, 161 N.W.2d at 44. The sales agent had two people infiltrate a competitor to gain access to the competitor’s records, and deliver them to him. Id. at 150-51, 161 N.W.2d at 41. In contrast, Lange and its progeny deal with employees who commit unauthorized assaults while they are working. See, e.g., Fahrendorff, 597 N.W.2d at 908 (sexual assault by an unsupervised employee in a group home); Lange, 297 Minn, at 400, 211 N.W.2d at 783 (physical attack); Marston v. Minneapolis Clinic of Psychiatry and Neurology, 329 N.W.2d 306, 307 (Minn. 1982) (sexual contact). Clearly, Hagen’s misappropriation is much more akin to the theft in Kasner than the assault in Lange. Accordingly, the district court did not err in relying bn Kasner.

II.

The district court did, however, err in its application of Kasner ⅛ principles to this case. In determining whether the act is within the course and scope of employment, the Kasner court considered the following factors:

(a) whether or not the act is one commonly done by such servants;
(c) the previous relations between the master and the servant;
(e) whether or not the act is outside the enterprise of the master
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.

281 Minn, at 152, 161 N.W.2d at 42 (quoting Restatement (Second) of Agency § 229(2) (omissions in original)).

Application of these factors to this case compel a finding of vicarious liability. Solicitation letters are very common in the insurance industry. American Agency argues that improper solicitations are not common in the insurance industry, but this argument misconstrues the nature of this first inquiry and begs the question. Vicarious liability in these cases is not limited to situations where intentional torts are common.

The previous relations between American Agency and Hagen indicate that American Agency was aware of the terms of Hagen’s non-compete agreement. The fact that Hagen was a new employee is not significant here because American Agency was aware of the narrow distinction Hagen would be making when selecting which former clients to solicit.

Hagen’s solicitation was entirely within the enterprise of American Agency. In fact, the actual text of the solicitation letter was expressly authorized by American Agency, as was the sending of the letter to Hagen’s friends and family.

American Agency, knowing that the area of authorized solicitation was vaguely defined, had reason to expect that Hagen might not correctly determine what constituted “close friends and family.” They specifically met with Hagen to discuss the limits of Hagen’s non-compete agreement.

Hagen’s improper solicitation was identical in nature to that authorized — only the quantity differed. The solicitation was only improper because it was sent to more people than authorized, not because it was a different letter. The fact that some were sent to individuals in the penumbra outside of Hagen’s close friends and family does not radically change the character of the act. Although the letters can be distinguished on the basis of whether or not, objectively, they were authorized, the authority to send solicitations to close friends and relatives was undoubtedly vague and the terms painfully indescript. After all, when does a business acquaintance become a friend?

It is of importance that American Agency alone provided the entirety of resources by which the harm was done. American Agency supplied the stationary, postage, and envelopes. The letter was composed and sent from American Agency. The misconduct was accomplished entirely through its officers.

The district court focused specifically on American Agency’s lack of knowledge or approval of the improper solicitations. But if courts were “to predicate liability in respondeat superior cases upon a showing that the employer should have reasonably anticipated the employee’s specific misconduct, [the] distinction [between direct and vicarious liability] would be lost.” Fahrendorff, 597 N.W.2d at 912. If American Agency had known or approved of the improper solicitations, there would be no respondeat superior issue — they would be directly liable for the improper solicitation.

To be sure, this case is distinguishable from Kasner. But in its difference, it is all the more compelling a circumstance to find liability. In Kasner, the agent was simply a sales agent for a large corporation who owned his own business equipment, paid his own rent and utilities, hired and trained his own employees, fixed their working conditions, and paid their salaries or commissions. Kasner, 281 Minn, at 154, 161 N.W.2d at 43. He had great autonomy in the way he ran his business. Id.- The court found that the autonomy of the agent precluded a finding that the agent’s misappropriation of a local competitor’s records was within the scope of such agency. Id. at 153-54, 161 N.W.2d at 43.

In contrast, here, Hagen did not operate his own insurance agency but worked in American Agency’s office and was subject to direct supervision. In Kasner, the employer was oblivious to the agent’s activities because the agent was managing a largely autonomous local office for a national corporation. Here, Hagen was a supervised employee, but despite being fully aware of the conditions of Hagen’s non-compete clause, American Agency simply failed to supervise the solicitation.

Furthermore, in Kasner, the agent engaged in an elaborate plan to steal his competitor’s trade secrets and employed methods that were completely outside of the regular business practices of a reputable magazine sales agent. Id. at 150-51, 161 N.W.2d at 41. The Kasner court noted that “[t]he quality of the act [could] hardly be found to be of the general nature of the sales activity authorized by [the sales corporation] or reasonably incidental to such activity.” Id. at 155, 161 N.W.2d at 44. Here, of course, the nature of Hagen’s improper solicitation was identical to that of the authorized solicitation and differed only in magnitude. Hagen did not achieve his misappropriation though unpredictable trickery, instead, he informed American Agency of the non-compete agreement, the limited exception, and then simply acted beyond that exception.

American Agency knew what information Hagen possessed and knew what the limits of his non-compete agreement were. They didn’t know exactly who on the list were appropriate for solicitation. Ignorance of this significant fact should have alerted them to supervise Hagen. Accordingly, Hagen was acting within the scope of his employment when he solicited clients in violation of his non-compete agreement with Burmeister.

DECISION

The district court erred in granting summary judgment in favor of American Agency erroneously concluding that, as a matter of law, Hagen was not acting within the course and scope of his employment when he mailed more solicitations than he was authorized to send.

Reversed.


author: KONENKAMP, Justice

text:
    2000 SD 134
    STATE of South Dakota, Plaintiff and Appellee, v. Shanna BALLARD, Defendant and Appellant,
    No. 21322.
    Supreme Court of South Dakota.
    Considered on Briefs Sept. 18, 2000.
    Decided Oct. 18, 2000.

      Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Matthew J. Kinney, Spearfish, for defendant and appellant.
   KONENKAMP, Justice

[¶ 1.] If, after issuing a traffic warning, an officer tells a driver she is free to leave but asks for her consent to search her vehicle for drugs, and she refuses, may the officer then detain the driver to await the use of a drug dog? The defendant argues that the officer had insufficient legal grounds to continue detaining her after she was told she was free to go. The circuit court denied her motion to suppress, but we conclude that it should have been granted and reverse.

A.

[¶ 2.] On August 14, 1999, at 11:50 p.m., Lawrence County Deputy Sheriff Michael Shafer observed a car driving partly on the shoulder of the road near Whitewood, South Dakota. Shafer followed for a short distance and saw the car cross the center-line. He then stopped the driver for a violation of SDCL 32-26-1. Shafer suspected the driver was intoxicated.

[¶ 3.] Deputy Shafer approached the vehicle, advised the driver, Shanna Ballard, of his reason for stopping her, and asked for her driver’s license. Ballard explained that she was driving erratically because she had been looking for something in her purse. Shafer did not smell alcohol or detect the presence of any contraband in the car. He asked Ballard to come back to his patrol vehicle. Her two passengers remained in her car.

[¶ 4.] While in the patrol car, Shafer observed Ballard to be “very fidgety” — -her hands were shaking; she could not sit still; her pupils were constricted; and she had a “wired” look. When asked at the suppression hearing to describe this “wired look,” Shafer said,

The best description that I can give would be of — very intense look. Eyes kind of very — almost bulging in focus. Almost if — if you’ve ever seen a picture of Charles Manson where he’s just very intense, some of the photos you’ve seen of him, that’s the best description I can give you of it.

Shafer noted that while most drivers are nervous when they encounter law enforcement officers, Ballard’s conduct was “remarkable” and “unique from other people.” In his experience this behavior was consistent with methamphetamine use. Nonetheless, after checking the status of her license and issuing her a warning citation, Shafer told Ballard she was “free to leave.” Then he told her. that he was suspicious about the presence of drugs in her car and asked her for consent to search it. Ballard refused.

[¶ 5.] Shafer informed Ballard that he was going to detain her vehicle until a drug detection dog could be brought to the scene. He radioed for a K-9 unit. In his suppression hearing testimony, Shafer admitted he had no probable cause to search at this point, but he believed he had reasonable suspicion that there was contraband in Ballard’s vehicle. Shafer left Ballard in his patrol car and told the two passengers that the vehicle would be detained until a drug dog could be brought to the scene. He went on to ask the occupants if any items in the car belonged to them. He also asked if the dog would “alert” to any contraband. One passenger admitted that he had a “bowl of marijuana” in his bag. Shafer asked both passengers to step optside the vehicle.

[¶ 6.] About 'five minutes later, Trooper Schnettler arrived along with his dog, Ni-tro. ■ Schnettler led Nitro around the vehicle to sniff for illicit substances. When Nitro “alerted” ’to a part of the car, the entire vehicle was searched. The officers found a blue zipper bag that contained a scale with white powder residue, a plastic bag containing marijuana, a box containing three plastic bindles with white powder residue, and various syringes. All three occupants were arrested.

[¶ 7.] Ballard was indicted on one count of possession of a controlled substance and one count of possession of marijuana. A charge of possession of drug paraphernalia was later added. She moved to suppress and, following a hearing, the circuit court denied her motion. In a bench trial, Ballard was found guilty on all charges and given a suspended imposition of sentence with probationary conditions. Her suspended imposition of sentence was later revoked and the court suspended the execution of a prison sentence, allowing Ballard to continue probation in her home state of Colorado. .

[¶ 8.] Ballard now appeals challenging the legality of her continued detention after the warning citation was issued and she was told that she was “free to leave.” She asserts that this constituted a second stop without reasonable suspicion or probable cause. Ballard also argues that even if Shafer’s continued detention was permissible there was no reasonable suspicion for the canine sniff, or that this particular canine sniff was unreasonable and should be classified as a “search.” We need not reach these alternative arguments.

B.

[¶ 9.] We recently clarified the appropriate standard for reviewing decisions on warrantless searches and seizures. State v. Hinting, 1999 SD 53, ¶ 9, 592 N.W.2d 600, 603. “[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.” Id. (italics and alterations in original)(citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). In reviewing findings of fact we continue to apply the clearly erroneous standard. Hinting, 1999 SD 58, ¶ 8, 592 N.W.2d at 603 (citing State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994)). A finding is clearly erroneous only if, after reviewing the evidence in its entirety, “we are left with a definite and firm conviction that a mistake was made.” Almond, 511 N.W.2d at 574. “Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo.” Hirning, 1999 SD 53, ¶ 8, 592 N.W.2d at 603 (citations omitted).

C.

[¶ 10.] The'Fourth Amendment to the United States Constitution and Article VI § 11 of the South Dakota Constitution protect the “right of the people to be secure in their persons, houses and effects, against unreasonable searches and seizures .... ” As a rule, this protection has been interpreted as holding “a seizure of personal property ... per se unreasonable ... unless it is accomplished pursuant to a judicial warrant issued upon probable cause.... ” United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983). In Terry v. Ohio, however, the United States Supreme Court recognized “the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individ-uáis personal security based on less than probable cause.” Id. at 702, 103 S.Ct. at 2642, 77 L.Ed.2d at 117. Whether a particular intrusion will fall into the Terry exception will be decided by balancing the “quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Place, 462 U.S. at 703, 103 S.Ct. at 2642, 77 L.Ed.2d at 118 (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968)).

[¶ 11.] Police officers must have “specific and articulable suspicion of a violation” before a traffic stop is permissible. State v. Vento, 1999 SD 158, ¶ 8, 604 N.W.2d 468, 470 (citing State v. Cuny, 534 N.W.2d 52, 53 (S.D.1995)). Ballard’s conduct in crossing over the centerline and fog line provided reasonable suspicion to justify the initial stop. See Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 14, 580 N.W.2d 606, 610-11. Shafer was entitled to conduct an investigation “reasonably related in scope to the circumstances that justified the interference in the first place.” United States v. Bloomfield, 40 F.3d 910, 915 (8thCir.1994); Vento, 1999 SD 158, ¶ 15, 604 N.W.2d 468, 471. A reasonable investigation includes “a request for driver’s license, vehicle registration, and proof of insurance.” Id. See also Bloomfield, 40 F.3d at 915 (having a driver accompany officer to patrol car is a reasonable request). A traffic investigation may also include a computer check on automobile registration and outstanding warrants. State v. Anderson, 258 Neb. 627, 605 N.W.2d 124, 131 (2000) (citations omitted). “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229, 238 (1983) (citations omitted).

[¶ 12.] Generally, once a traffic investigation is completed an officer must allow the driver to proceed without further constraint. State v. Woolfolk, 3 S.W.3d 823, 828 (Mo.Ct.App.1999). To detain a driver further an officer must have “a reasonable, articulable suspicion that [the] person is involved in criminal activity unrelated to the traffic violation.” Anderson, 605 N.W.2d at 132 (citing United States v. Carrate, 122 F.3d 666, 668 (8th Cir.1997)); Woolfolk, 3 S.W.3d at 828-29 (Mo.Ct.App. 1999).

[¶ 13.] Like reasonable suspicion for the initial stop, reasonable suspicion to justify extending the scope of a traffic stop is examined under an objective test. The facts asserted to justify suspicion are measured “as a totality and in light of the officer’s experience.” Bloomfield, 40 F.3d at 918 (citations omitted). Looking at all the circumstances, we must ask whether Shafer had a suspicion of an offense apart from the initial traffic violation and if that suspicion was objectively reasonable. See Anderson, 605 N.W.2d at 132; Vento, 1999 SD 158, ¶ 8, 604 N.W.2d at 470. In deciding whether particular facts give rise to an objectively reasonable suspicion the officer must have more than “an inchoate and unparticularized suspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.” Anderson, 605 N.W.2d at 132. We require “a specific and articulable suspicion of a violation.... ” Spenner, 1998 SD 56, ¶ 14, 580 N.W.2d at 610 (citing State v. Cuny, 534 N.W.2d 52, 53 (S.D.1995)).

[¶ 14.] After stopping Ballard’s car, Shafer asked her to sit in the patrol car. While he issued the citation and called in for a check on her driver’s license, he noticed that Ballard was “fidgety,” she looked “wired,” her pupils were constricted, and she was remarkably more nervous than most persons during a traffic stop. This nervous behavior did not subside when Shafer told Ballard that he would only issue a warning. These facts caused Shafer to become suspicious that Ballard was under the influence of some drug. Shafer nonetheless told Ballard she was free to leave. As he testified, “She was free to go, but I was asking for consent to search her car.” His investigation was not over, he explained, but he “needed to make sure she was aware she was free to leave prior to” asking for her consent.

[¶ 15.] We conclude that Shafer’s detention of Ballard after telling her she was free to leave was impermissible under the Fourth Amendment. All the observations he made about her occurred before he told her she was free to go and no new suspicious information arose before he decided to detain her further. In its findings of fact, the circuit court specifically noted Shafer’s description of Ballard as “wired” and in Shafer’s experience this look was consistent with use of methamphetamine. However, Shafer made that observation while Ballard was in the patrol car and before he told her she was free to leave.

[¶ 16.] In State v. Durke, law enforcement officers conducted a valid traffic stop of a group of seven motorcyclists. Durke, 1999 SD 39, ¶ 3, 593 N.W.2d 407, 408. Four of the motorcycles had handlebars that were too high under South Dakota law. Id. at ¶ 2, 593 N.W.2d at 408. After accomplishing the stop, the officers checked the drivers’ licenses and registrations of the seven, finding no problems. Id. at ¶ 3, 593 N.W.2d at 408. The three motorcyclists whose handlebars complied with the law wished to leave; however, the officers did not explain that they were free to go. Id. One of the officers later noticed a marijuana pipe and a pistol. After this discovery all the individuals were handcuffed and their belongings searched. Id. at ¶¶ 4-5, 593 N.W.2d at 408-09. We concluded that continued detention of the cyclists who were in compliance with the handlebar law was illegal. Id. at ¶ 17, 593 N.W.2d at 410. The cyclists were detained after the initial traffic stop when no additional facts suggesting a violation were observed. The distinction here, of course, is that Deputy Shafer had other suspicions, but he nonetheless told Ballard she was free to leave, a questionable maneuver to employ in the midst of a claimed ongoing investigation.

[¶ 17.] Once officers tell traffic violators they are free to leave with a citation or a warning, the Fourth Amendment intercedes to limit a further detention or search. United States v. $404,905 in U.S. Currency, 182 F.3d 643, 648 (8th Cir.1999). A refusal to give consent to search after the motorist is free to leave cannot give rise, of itself, to further suspicion and justification for a search; otherwise, the exercise of a Fourth Amendment right would be meaningless. This case presents a close question on when continued detention becomes unreasonable. However, we are concerned with the dubious message we send to law enforcement officers and the public if we validate a procedure allowing officers to falsely tell traffic offenders they are free to go, only for the purpose of eliciting their uncoerced agreement to search their automobiles.

[¶ 18.] We reverse the circuit court’s order denying Ballard’s motion to suppress.

[¶ 19.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . SDCL 32-26-1 provides: "the driver of a vehicle shall drive the same upon the right half of the highway ... except when overtaking and passing another vehicle....”

      . The Slate appears to invoke the automobile exception to the warrant requirement. This exception only excuses the absence of a warrant not the absence of probable cause. Wayne R. LaFave, Search and Seizure § 7.1(a) at 433 (3d ed. 1995). Shafer had no probable cause when he decided to detain Ballard's vehicle. Thus, the automobile exception cannot be used to validate the continued detention of Ballard's vehicle after issuance of the warning citation.

      . In United States v. Place, 462 U.S. 696, 707 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983), the Supreme Court concluded that exposing an individual's luggage, which was located in a public place, to a canine trained to search for contraband did not constitute a "search” under the Fourth Amendment.