This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A14 - 1919 State of Minnesota, Respondent,

vs. Aamir Karmoeddien, Appellant. Filed December 7 , 2015 Affirmed Reyes , Judge Hennepin County District Court File No. 27CR146894 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota ; and Michael J. Colich, Brooklyn Park City Attorney, Amanda J. Grossman , Assistant City Attorney, Colich & Associates, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant State Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Reyes , Presiding Judge; Connolly , Judge; and Rodenberg , Judge

.2 U N P U B L I S H E D O P I N I O N REYES , Judge Appellant argues that the police officer lacked an objective basis to stop his vehicle and that his test

- refusal conviction must be reversed because Minnesota’s test

refusal statute is unconstitutional. We affirm. FACTS O n the evening of March 13, 2014, Brooklyn Park Police O ff icer Nicholas Joe Courtwright (the officer ) observed a 2002 Lincoln LS driven by a ppellant , Aamir Karmoeddien , approximately 25

- 50 yards in front of him travellin g westbound on Brookdale Drive. The o fficer testified that the vehicle caught his attention because it weaved within its lane two to three times within 30 to 60 seconds and crossed over the fog line

. He also stated that he noticed “suspended objects from [the] rearview mirror.” The o fficer’s squad

- car video camera shows a ppellant’s vehicle weavi ng from side to side two to three times and crossing over the fog line, with a visible object han ging from the rearview mirror. The o fficer testified that when a ppellant rolled down the window, he observed an “odor of alcoholic beverage coming from inside the vehicle,” which intensified as appellant looked up and spoke to him. He also stated that appellant had bloodshot and glossy eyes. Appellant refused to perf orm field sobriety tests or submit to a preliminary breath test. The officer placed appellant under arrest on suspicion of DWI and transported him to the Brooklyn Park Police Department.3

The officer read appellant the Min nesota implied

- consent advisory and then gave him a phone and phone books to contact an attorney. He asked appellant whet her he would submit to a breath test , and a ppellant refused. The state charged ap pellant with second

- degree test refusal in violation of Minn. Stat. § 169A.20, subd. 2 (2 012) ; second

- degree driving while impaired in violation of Minn. Stat. § 169A.20, subd. 1(1) (2012) ; having an open bottle of alcohol in the vehicle in violation of Minn. Stat. § 169A.35, subd. 3 (2012) 1 ; and providing a peace officer with a false name in v iolation of Minn. Stat. § 609.506, subd. 1 (2012). Appellant moved to dismiss the charges and suppress evidence obtained during the traffic stop, arguing that the o fficer lacked a reasonable basis for the traffic stop. Appellant also moved to dismiss the test

- refusal count, arguing that Minnesota’s test

- refusal statute is unconstitutional. The district court denied both motions. The jury found appellant guilty of the first three counts and acquitted him of providing a peace officer with a false name. T his appeal follows. D E C I S I O N I. The district court did not err in holding that the officer had a r easonable articulable suspicion justifying the traffic stop . Appellant argues that the district court erred by concluding that the o ffic er had a reasonable articulable suspicion to support his stop, and therefore erred by denying appellant’s motion to suppress evidence obt ained as a result of the stop. “ When reviewing a pretrial order on a motion to suppress evidence, we may indepen dently

1 The open bottle of alcohol charge is not argued on appeal. As such, the facts regarding this charge have been omitted.4

review the facts and determine whether, as a matter of law, the district court erred in suppressing or not suppressing the evidence.” State v. Askerooth , 681 N.W.2d 353, 359 (Minn. 2004)

. This court “accept[s] the district court’s factual findings unless they are clearly erroneous

. ” State v. Smith , 814 N.W.2d 346, 350 (Minn. 2012). “Findings of fact are clearly erroneous if, on the entire evidence, [the court is] left with the definite and firm conviction that a mistake occurred.” State v. Diede , 795 N.W.2d 836, 846

- 47 (Minn. 2011). T he United States and Minnesota Constitutions guarantee the right to be secure against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. These rights under the Fourth Amendment extend to searches of motor vehicles. See State v. Britton , 604 N.W.2d 84, 87 (Minn. 2000). However, “ a n officer may, “ consistent with the Fourth Amendment, condu ct a brief, investigatory stop” of a motor vehic le p rovided that “ the officer has a reasonable, articulable suspicion t hat criminal activity is afoot. ” State v. Timberlake , 744 N.W.2d 390, 393 (Minn. 2008) (quoting I llinois v. Wardlow , 528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000) (citing Terry v. Ohio , 392 U.S. 1, 30, 88 S. Ct. 1868, 1884

– 85 (1968)))

. This court reviews de novo a district court’s determination of whether there was reasonable suspicion to justify a stop. Britton , 604 N.W.2d at 87. But this court reviews the factual findings underlyin g that determination for clear error. State v. Lee , 585 N.W.2d 378, 38 3 (Minn. 1998). Reasonable suspicion exists if, “in justifying the particular intrusion the police officer [is] able to point to specific and articulable facts which, taken together wi th5

rational inferences from those facts, reasonably warrant that intrusion.” Terry , 392 U.S. at 21, 88 S. Ct. at 1880. The supreme court has held that an officer’s observation of a minor traffic violation can support the officer’s reasonable suspicion t o justify the stop of a vehicle

. See State v. George , 557 N.W.2d 575, 578 (Minn. 1997) (“Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective ba sis for stopping the vehicle.”)

. Here , t he dis trict court concluded that the o fficer had a reasonable articulable suspicion to justify stop ping the vehicle based on the officer’s observation that appellant’s vehicle “suffi ciently” went over the fog line and because there was “an item hanging from the rear view mirror.” Both of these observations are traffic violations. Minn. Stat. § § 169.18, subd. 7(a) , .71 , subd 1 (2) (2012)

. Therefore, the o fficer had reasonable articulable suspicion s to stop appellant’s vehicle. II. The district court did not err in ho ldin g that Minnesota’s test - refusal statute is constitutional . Appellant argues that Minnesota’s test

- refusal statute violates his right to substantive due process because it criminalizes his Fourth Amendment right to refuse a warrantless search. Minn. Stat. § 169A.20, subd. 2 , (“It is a crime for any person to refuse to submit to a chemical test of the person’s blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).”). Appellant further contends that the test

- refusal statute violates the unconstitutional

- conditions doctrine.6

The constitutionality of a statute is a question of law that this court reviews de

novo. State v. Ness , 834 N.W.2d 177, 181 (Minn. 2013) (quota tion omitted)

. The reviewing court presume s that stat utes are constitutional and will strike down a statute only if absolutely necessary. State v. Melde , 725 N.W.2d 9 9, 10 2 (Minn. 2006 )

. “[A] party challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute violates a constitutional provision.” State v. Cox , 798 N.W.2d 517, 519 (Minn. 2011). Because appellant bases his substantive due

- pro cess argument on a Fourth Amendment violation, we first decide whether a warrantless search of appellant’s breath would have been constitutional under the Fourth Amendment. See State v. Bernard , 859 N.W.2d 762 , 766 (Minn. 2015)

. Appellant’s argument is unavailing in light of the Minnesota Supreme Court’s recent decision in Bernard

. In Bernard , the supreme court held that a warrantless breath test of the driver is constitutional under the search

- incident

- to

- arrest ex ception to th e Fourth Amendment’ s warrant requirement

. Id. at 772. The supreme court upheld the constitutionality of Minnesota’s test

- refusal statute as it applied to Bernard’s case, concluding that a warrantless breath test did not violate the Fourth Amendment because it qualifi es as a search incident to Bernard’s valid arrest. Id. Under the search

- incident

- to

- arrest exception, an officer may search a suspect when the officer has probable cause to arrest the suspect. Arizona v. Gant , 556 U.S. 332, 338, 129 S. Ct. 1710, 1716 (2009) . Probable cause to arrest exists when “the objective facts are such that under the circumstances a person of ordinary care and prudence7

[would] entertain an honest and strong suspicion that a crime has been committed.” State v. Johnson , 314 N.W.2d 229, 230 (Minn. 198 2) (quotation omitted). Here, the o fficer observed an ite m hanging from appellant’s rear view mirror and observed appellant cross over the fog line

. He then detected the odor of alcohol emanating from appellant and observed appellant’s blood shot and glo ssy eyes. Accordingly, t he officer possessed the requisite probable cause to arrest appellant for suspicion of DWI. Because the o fficer had probable cause to arrest appellant, a warrantless breath test would have been constitutional as a sea rch incident to a valid arrest. See Bernard , 859 N.W.2d at 767. Moreover, appellant’s reliance on McNeely , 133 S. Ct. 1552, 1556 (2013), is misplaced. McNeely only addressed the single

- factor exigency exception to the warrant requirement and the Minneso ta Supreme Court declined to extend McNeely to the search

- incident

- to

- arrest exception. Bernard , 859 N.W.2d at 772 (“ McNeely does not foreclose our decision regarding the search

- incident

- to

- arrest exception to the warrant requirement.”). Appellant also argues that the test

- refusal statute violates the unconstitutional

conditions doctrine “because it compels the surrender of the constitutional right to withhold consent to a warrantless search as a condition of driving.” This court recently held that “Minnesota’s test

- refusal statute does not violate the unconstitutional

- conditions doctrine by imposing a criminal penalty on a person who has been arrested for driving while impaired and has refused to submit to a breath test.” State v. Benne t t , 867 N.W.2d 539, 540 (Minn. App. July 27, 2015). Appellant ’s unconstitutional

- conditions challenge fails under Bennett

.8

In sum, a ppellant’s argument that the government violated his right to due process by threatening him with unauthorized criminal pros ecution for test refusal fails because application of the criminal test

- refusal statute in this case would not have violated

a ppellant’s right to substantive due process and because th e test

- refusal statute does not violate the unconstitutional

- conditions doctrine. Affirmed.