This opinion will be unpublished and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

C0-00-584

 

State of Minnesota,
Appellant,

vs.

Timothy Michael Klemenko,
Respondent.

 

 

Filed October 17, 2000

Affirmed
Klaphake, Judge

Huspeni, Judge,* dissenting

 

Carlton County District Court

File No. 09K999942

 

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

 

Marvin Ketola, Carlton County Attorney, Thomas H. Pertler, Dennis Genereau, Jr., Assistant County Attorneys, 202 Courthouse, Carlton, MN  55718-0300 (for appellant)

 

David G. Desmidt, 3001 Hennepin Avenue South, Suite 309B, Minneapolis, MN  55408 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            The state appeals from the district court’s dismissal of a controlled-substance charge against respondent.  The district court found that the state trooper’s asserted justification for the stop preceding a seizure of marijuana was pretextual and that the trooper had no articulable suspicion to support the stop.  Because the district court’s decision involved credibility determinations and because those determinations were not clearly erroneous, we affirm.

FACTS

            On September 3, 1999, state trooper Darren Juntunen stopped a vehicle travelling on Interstate 35 in Carlton County.  Juntunen identified the passenger of the vehicle as respondent Timothy Klemenko and the driver as Klemenko’s son.  Because neither man had a valid driver’s license, Juntunen, acting according to standard procedure, had the vehicle towed.  During an inventory search conducted prior to towing the vehicle, Juntunen and another trooper seized 109 grams of marijuana and some paraphernalia.  Klemenko was charged with fifth-degree possession of a controlled substance under Minn. Stat. § 152.025, subd. 2(1) (1998).

            At the omnibus hearing, Klemenko argued that the stop preceding seizure of the marijuana was unlawful.  Juntunen testified that he stopped the vehicle because he saw an object suspended from the rearview mirror.  He did not recall what the object was, but testified that it was about the size of a half dollar.  Klemenko’s attorney asserted, and Juntunen did not dispute his assertion, that the object was a “dreamcatcher.”[1]  Juntunen also testified that he believed the object could obstruct a driver’s vision.  Juntunen issued a written warning about the suspended object, but no citation. 

            The district court concluded that Juntunen’s asserted justification for the stop was “pretextual” because (1) Juntunen could not recall what the object was, (2) he issued no citation, and (3) his assertion that the dreamcatcher would obstruct vision was “less-than-credible.”  Because the marijuana was the only evidence supporting the charge against Klemenko, the court dismissed the charge.  The state appeals. 

D E C I S I O N

            When the state appeals from a pretrial order dismissing a criminal charge, this court will reverse only if the state clearly and unequivocally demonstrates that the district court erred and that the error, unless reversed, will have a critical impact on the outcome of the prosecution.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  Here, the state has demonstrated critical impact because the district court’s order prevents the state from prosecuting the charge against Klemenko.

The validity of a traffic stop on given facts is a legal question that this court reviews de novo.  Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  However, we will not reverse the trial court’s findings of fact unless they are clearly erroneous.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  Witness credibility and the weight to be given to testimony are determinations for the trial court.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). 

            Under the Fourth Amendment, a police officer must have a specific and articulable suspicion of criminal activity to justify an investigatory stop.  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 basis for stopping the vehicle.”  Id. (citations omitted).  However, we will uphold a traffic stop only if the officer had a reasonable and articulable suspicion at the time of the stopSee Berge, 374 N.W.2d at 732 (stop is lawful if officer can articulate that he had a particularized and objective basis for suspecting particular person stopped of criminal activity); cf. Andersen v. Commissioner of Pub. Safety, 410 N.W.2d 17, 19 (Minn. App. 1987) (probable cause evaluated from viewpoint of prudent officer on the scene at the time of arrest) (emphasis added); Wayne R. LaFave, 2 Search and Seizure § 3.2(d) (3d ed. 1996) (“It is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made on probable cause.”). 

In this case, Juntunen claimed that he stopped the vehicle because of an object suspended from the rearview mirror.  See Minn. Stat. § 169.71, subd. 1 (1998) (prohibiting suspension from rearview mirror of any object).  Upon further questioning, however, Juntunen was unable to describe the nature of the suspended object and estimated that it was the size of a half dollar.  Based on this testimony, the district court essentially refused to credit Juntunen’s claim that he saw the object hanging from the rearview mirror before he made the stop and concluded that Juntunen’s asserted justification for the stop was a pretext.[2]  We agree with the court that it strains credibility to conclude that Juntunen was able to see so small an object from his own vehicle, especially when he could not recall what the object was.  Because Juntunen had no articulable suspicion of criminal activity prior to stopping the vehicle, the district court did not err in determining that the stop was unlawful.

            This case is distinguishable from those in which an officer articulates a reasonable suspicion, but the defendant claims that the asserted reason was not the officer’s true reason for making the stop.  When there is an objective, credible basis for a stop, the stop is lawful regardless of allegations about the officer’s true motivations for making the stop.  See State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991) (citing Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717 (1978)); State v. Battleson, 567 N.W.2d 69, 71 (Minn. App. 1997); see also Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996) (holding that subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional).  Here, the district court essentially chose to reject Juntunen’s stated reason; this type of a credibility determination is properly made by the district court.  See  Minn. R. Civ. P. 52.01.

The district court’s dismissal of the charges against Klemenko is affirmed.

Affirmed.


HUSPENI, Judge (dissenting)

 

            I respectfully dissent and would reverse and remand for trial.  There is no ambiguity in Minn. Stat. § 169.71, subd. 1 (1998).  That statute prohibits driving or operating a motor vehicle “with any objects suspended between the driver and the windshield.” 

            If the district court had found incredible the testimony of the officer that he stopped respondent’s vehicle because he saw an object suspended from the rear-view mirror, that credibility assessment should have been entitled to substantial deference and affirmed.  But the district court did not reject the testimony that the officer saw the object.  Instead, the court stated that “such an object would in no way impede the ability of a driver to see everything out of the windshield or side windows.”  Thus, the court added to the statute a provision that an object suspended from the rear-view mirror must be of a size large enough to obstruct vision before a stop would be justified.  The legislature could have included such a provision in the statute it enacted, but did not.

            If an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping a vehicle.  See State v. George, 557 N.W.2d 525 (Minn. 1997).  Minn. Stat. § 169.71, subd. 1, describes a traffic violation.  The officer testified that he observed the violation; that testimony was not rejected.  I submit the stop was proper and the evidence suppressed by the court was properly seized.


 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  A dreamcatcher is a Native American symbol of spirituality.

[2] To the extent that we read the district court’s decision as involving a rejection of Juntunen’s claim as to why he stopped the vehicle, we disagree with the dissent’s narrow reading of the court’s decision.  A trial court need not explicitly “reject” a witness’ testimony or find that testimony “incredible.”  Rather, these credibility determinations must often be inferred from the court’s other findings and ultimate conclusions.