This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Gary Wayne Olson,
Filed September 26, 2000
Reversed and remanded
Carlton County District Court
File No. 09K199885
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Marvin E. Ketola, Carlton County Attorney, Mikkel A. Long, Assistant County Attorney, 202 Courthouse, Box 300, Carlton, MN 55718-0300 (for appellant)
Steven J. Meshbesher, Rory Patrick Durkin, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Parker, Judge.
U N P U B L I S H E D O P I N I O N
The State of Minnesota appeals from a pretrial suppression order. The state argues that the district court erred in ruling that it was improper to arrest respondent Gary Wayne Olson for the misdemeanor of driving after suspension and in concluding that the subsequent search was invalid. We reverse and remand.
D E C I S I O N
When reviewing a pretrial order suppressing evidence where the facts are not in dispute, “the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). We may determine the issues in this case as a matter of law because the parties stipulated to the facts in the police report for purposes of the pretrial suppression motion.
As Chief Justice Amdahl explained in State v. Storvick, 428 N.W.2d 55 (Minn. 1988):
The correct approach in a case where the facts are not significantly in dispute is to simply analyze the testimony of the officers and determine if, as a matter of law, the officers were justified under the cases in doing what they did. Berge v. Commissioner of Public Safety, 374 N.W.2d 730, 732 (Minn. 1985).
Storvick, 428 N.W.2d at 58 n.1.
The state argues that it was permissible to arrest respondent Gary Wayne Olson for the misdemeanor of driving after suspension. A police officer may arrest a person without a warrant when a public offense has been committed or attempted in the officer’s presence. Minn. Stat. § 629.34, subd. 1(1) (1998). Misdemeanors are included in the definition of public offense. Smith v. Hubbard, 253 Minn. 215, 220, 91 N.W.2d 756, 761 (1958). But law enforcement officers must issue citations for misdemeanor violations rather than arrest a suspect, unless it reasonably appears to the officer that: (1) arrest or detention is necessary to prevent bodily harm to the accused or another or to prevent further criminal conduct; or (2) there is substantial likelihood that the accused will fail to respond to a citation. Minn. R. Crim. P. 6.01, subd. 1(1)(a).
Officer Juntunen stopped Olson after he observed him committing the traffic violation of driving with objects suspended from his rearview mirror. See State v. Shellito, 594 N.W.2d 182, 185 (Minn. App. 1999) (stating that an officer’s observation of a traffic violation provides an objective basis to support a traffic stop); Minn. Stat. § 169.71, subd. 1 (1998) (providing that driving a vehicle with objects suspended between the driver and the windshield is a misdemeanor). Officer Juntunen asked Olson for his driver’s license. Olson handed him a “clipped” driver’s license and stated that he was waiting for a new license and that his license was valid. But a license check indicated that Olson’s license was, in fact, suspended. Officer Juntunen also discovered that, although Olson initially said the car was his, the car was registered to Vernon Olson. Officer Juntunen warned Olson for the suspended objects and cited him for driving after suspension and for an unlawful act relating to a driver’s license. He then placed Olson under arrest for driving after suspension.
Under the facts of this case, Officer Juntunen could reasonably have concluded that arrest was necessary to prevent the further criminal conduct of driving after suspension. Although in some cases it may be possible for an officer to make alternative arrangements such as allowing another person to retrieve the car, an officer is not required to do so under all circumstances. Olson was alone in the car, and the stop took place on Interstate 35.
Moreover, Officer Juntunen could reasonably have concluded that there was a substantial likelihood that Olson would fail to respond to a citation based on Olson’s (1) statement to Officer Juntunen that his license was valid when it was not; (2) explanation after Officer Juntunen discovered the license suspension that he had not taken care of previous citations; (3) driving record that indicated he had two license suspensions for either failure to appear or failure to pay fines and one driver’s license suspension for a failure to pay fines; and (4) statement to Officer Juntunen that the vehicle was his when it was registered to Vernon Olson.
A reasonable interpretation of the driving record was that Olson previously had failed either to appear or to pay a fine when presented with a choice to do either. This coupled with Olson’s evasive conduct provided a reasonable basis for concluding that arrest was necessary to prevent further criminal conduct. See State v. Brown, 345 N.W.2d 233, 237 (Minn. 1984) (stating that when an officer is aware that the defendant has previously failed to appear for citations issued to him, the officer may reasonably conclude that there is a substantial likelihood that the defendant would again fail to appear and place the defendant under arrest).
The next question before us is whether the subsequent warrantless search of the car was a valid search. After arresting Olson, Officer Juntunen called to have the car towed and conducted a search of the car. During the search, Officer Juntunen discovered hallucinogenic mushrooms, marijuana, glass pipes, two long glass tubes, and a gas burner. The state argues that this search was a valid inventory search. We agree.
Police may make a warrantless search of an automobile to inventory the items within an impounded automobile. State v. Holmes, 569 N.W.2d 181, 186 (Minn. 1997). Inventory searches are reasonable in order to protect the owner’s property inside the automobile and protect “the police from claims that they lost or damaged property within their control.” Id. Inventory searches do not require probable cause. Id.
In determining whether the inventory search was reasonable, we must consider whether impoundment of the car was proper. See State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977). Additionally, we must consider whether the search was conducted in bad faith or as a pretext for investigation. See Holmes, 569 N.W.2d at 188-89.
Impoundment of the car was necessary in this case because (1) Olson could not drive the car because his license was suspended; (2) Olson was the only occupant of the car; (3) the registered owner of the vehicle was not present; and (4) leaving the vehicle at the side of the interstate could be a hazard or could subject the city to claims for damage or loss. See City of St. Paul v. Myles, 298 Minn. 298, 300, 218 N.W.2d 697, 698-99 (1974) (concluding that impoundment was proper under the circumstances because it was 1:35 a.m., the driver and occupants of the car were under arrest, the owner was not present, and therefore it was reasonable to impound the car and tow it off the street).
We also conclude that Officer Juntunen’s inventory search was not merely a pretext for investigation because (1) an inventory was necessary before towing the vehicle; (2) Officer Juntunen completed an inventory sheet and noted Olson’s personal effects present other than the contraband; and (3) the car was actually towed. See Holmes, 569 N.W.2d at 188 (noting that in determining whether an inventory search was pretextual, another court considered factors such as whether the search was conducted at the crime scene, whether the officer made formal inventory sheets or noted the personal effects present, and whether the car was actually impounded).
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.