This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


James E. Aschenbrener,

Filed February 29, 2000
Klaphake, Judge

Washington County District Court
File No. T6-98-304819

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Susan Danner Olson, Thomas J. Weidner, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Ave., Stillwater, MN 55082 (for respondent)

James E. Aschenbrener, 50 4th Ave. N., #3B, Minneapolis, MN 55401 (appellant pro se)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant James Aschenbrener entered a restricted area that had been established by police after a storm damaged a residential area in Woodbury. He was arrested for operating a motor vehicle while under the influence of alcohol and driving with an alcohol concentration of .10 in violation of Minn. Stat. § 169.121 (1996). Appellant challenges the district court’s decision declining to suppress evidence that led to his DWI conviction, claiming that the evidence was obtained in violation of his Fourth Amendment rights because the restricted area was an illegal checkpoint. He also contends the city regulations establishing the restricted area were invalid, unconstitutionally vague and overbroad, and violated his due process and equal protection rights. Because we conclude that the stop passed constitutional muster, we affirm.


1. Fourth Amendment Claim

While individualized reasonable suspicion of criminal activity is not required for checkpoint stops, such stops nevertheless must be reasonable to be lawful under the Fourth Amendment and under Article I, section 10 of the Minnesota Constitution. See Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 2485 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 561-62, 96 S. Ct. 3074, 3084-5 (1976); Ascher v. Commissioner of Pub. Safety, 519 N.W.2d 183, 187 (Minn. 1994). Under federal law, in determining the reasonableness of a stop, courts balance three factors—the public interest served by the stop, whether the stop advances the public interest, and the stop’s effect on a person’s privacy rights. Sitz, 496 U.S. at 450-54, 110 S. Ct. at 2485-87; Ascher, 519 N.W.2d at 185. While Minnesota has adopted this balancing test, it has

developed a narrower view of which stops pass that test than has the United States Supreme Court. Stressing the importance of the general constitutional guarantee that no person will be searched or detained absent some particularized suspicion, the Minnesota court held that the state must meet a high "burden of articulating a persuasive reason for departure" from that general guarantee.

State v. Greyeagle, 541 N.W.2d 326, 329 (Minn. App. 1995) (quoting Ascher, 519 N.W.2d at 186).

The facts of this case demonstrate the reasonableness of appellant’s stop under either federal or Minnesota law. First, the public has a strong interest in allowing police to respond to a local emergency, including protecting the safety of citizens and deterring criminal activity. Arguably, the public interest in having a checkpoint-type stop to protect a damaged area following a storm is stronger than for the typical checkpoint, in which police arbitrarily choose a location to check for sobriety, controlled substances, or driver’s licenses. Second, the checkpoint stop here advanced that public interest. Testimony at the suppression hearing established that the restricted area included three blocks and was designed to offer the most protection using the least police resources. The checkpoint was effective because the storm-damaged homes in the restricted area were protected and no crimes were reported during the period of the checkpoint. Third, the privacy intrusion to the general public was minimal, due to the tightly circumscribed area of the checkpoint. The privacy intrusion was also minimal to those individuals stopped at the checkpoint; they were merely asked for identification and warned to stay out of the area if they were nonresidents. Even under the more stringent Minnesota standard, seizure of appellant was reasonable under the facts of this case.

Appellant contends that State v. Larson, 485 N.W.2d 571 (Minn. App. 1992), requires implementation of checkpoints under administrative supervision and specific written instructions to control the discretion of field officers. Actually, Larson merely notes that these were two factors that courts have considered in determining the degree of intrusiveness to a person’s privacy. Id. at 572 ("Two of the factors courts have considered in determining the degree of intrusion are: (1) whether the checkpoint location was chosen by supervisory personnel * * * and (2) whether the officers in the field had specific instructions limiting their discretion in choosing vehicles to stop."). In this case, other factors, such as the necessary placement of the checkpoint in a certain residential location and the limited contact that officers had with those who passed the checkpoint, establish its unintrusiveness. Further, as police stopped all persons who passed the checkpoint, asked them for identification, and warned them of the restricted area, they employed neutral criteria that were uniformly intrusive to all who were stopped. Thus, the police officers in this case had little discretion to exercise and any methods for restricting that discretion, as expressed in Larson, were unnecessary in this case.

2. Other Constitutional Claims

Appellant claims that the "regulations" notifying the public of the emergency were not validly enacted or published. The City of Woodbury declared a state of emergency on May 31, 1998. The declaration was made in writing and signed by the acting mayor. Under Minn. Stat. § 12.29, subd. 1 (1998), "[a] local emergency may be declared only by the mayor of a municipality * * * [and] may not be continued for a period in excess of three days." The declaration "must be given prompt and general publicity." Id. Once the declaration of emergency becomes effective, it "invokes necessary portions of the response and recovery aspects of applicable local or interjurisdictional disaster plans." Id., subd. 2.

The actions taken by the mayor and police comply with the statutory language governing local emergencies. Although the record does not include evidence regarding the city’s efforts to publicize the declaration, the city argues that it enacted a valid declaration, and appellant did not meet his burden to show that it was not valid. See Northern States Power Co. v. City of Oakdale, 588 N.W.2d 534, 541 (Minn. App. 1999) ("A municipal ordinance is presumed constitutional; the burden is on the party attacking the ordinance’s validity to prove an ordinance is unreasonable."). The declaration clearly served the policy of the Minnesota Emergency Management Act of 1996, which is to

(1) ensure that preparations of the state will be adequate to deal with disasters, (2) generally protect the public peace, health, and safety, and (3) preserve the lives and property of the people of the state.

Minn. Stat. § 12.02, subd. 1 (1998).

Appellant also contends that the regulations failed to comply with the notice requirements of Minn. Stat. § 169.04 (1998). As the declaration of emergency was not a traffic ordinance, this statute is inapplicable to the facts of this case.

Appellant further contends that the regulations were unconstitutionally vague, overbroad, and unreasonable. This argument lacks merit because there is no ordinance or regulation at issue here. The city’s decision to restrict the area of damage after a storm and to impose a curfew in that area merely invoked a portion of a disaster plan as contemplated by the statute governing local emergencies. See Minn. Stat. § 12.29, subd. 2. To require the city to take a more formal approach to its response to disasters would hamper its ability to respond efficiently and quickly to emergencies and would be unrealistic under such circumstances.

Appellant next contends that the regulations and their enforcement violated his due process and equal protection rights. Appellant argues that he was not given fair notice of what conduct was prohibited. As the state points out, however, police personally informed individuals of the restricted area status of the neighborhood and the curfew. The existence of the police squad cars blocking the entrance to the neighborhood also provided implied notice of the restricted area. Because this notice was given before police would have taken any action on violations of the restrictions, due process notice requirements were met.

Finally, appellant contends that the regulations violated equal protection because they treated residents and nonresidents differently in restricting their right to travel in the neighborhood. Although it is unclear whether the right to travel includes intrastate travel, see State v. Stallman, 519 N.W.2d 903, 906 (Minn. App. 1994), any limitation on that right was reasonable under the circumstances and was narrowly tailored to serve the public interest in providing disaster assistance. See id. at 907 (restrictions on right to intrastate travel subject to intermediate levels of constitutional scrutiny); see also State v. Cuypers, 559 N.W.2d 435, 437 (Minn. App. 1997) (constitutional right to travel not implicated where restriction on driving privileges affected only one mode of travel). This argument is also without merit.