This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Ricky Kay Walker,



Filed October 17, 2000

Affirmed in part and remanded in part

Peterson, Judge


Hennepin County District Court

File No. 00010819


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and


Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for appellant)


William McGee, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for respondent)


            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from a pretrial order, appellant State of Minnesota challenges the trial court’s conclusion that police acted unreasonably by impounding respondent Ricky Kay Walker’s vehicle and, therefore, evidence seized during an inventory search was inadmissible.  Walker argues that the state waived the issue of whether the search was a valid search incident to arrest by failing to raise it until a motion for reconsideration.  We affirm in part and remand in part.


            At 1:39 a.m., Brooklyn Park police officer Chad Glirbas observed a gray Cadillac, which he recognized as belonging to Walker, traveling northbound on Zane Avenue.  Earlier during his shift, Glirbas had learned that there was a warrant out for Walker’s arrest.  Glirbas ran a license check on the Cadillac and confirmed that Walker was the car’s registered owner and that there was a warrant out to arrest him for failure to provide proof of insurance.  Glirbas stopped the car and identified the driver as Walker.  Glirbas then arrested Walker and placed him in the police squad car to transport him to the police station.

            The stop occurred on Zane Avenue near 85th Avenue.  At that location, Zane Avenue is a divided roadway with two northbound lanes and two southbound lanes.  There was conflicting evidence regarding the safety of parking at the stop location.  Glirbas testified that all four lanes are travel lanes, with no shoulders, and that leaving Walker’s car there would have impeded traffic and been hazardous to public safety.  Walker testified that although there was no shoulder at the stop location, there was a turn-off lane “where you can park on the street there.”  Walker also testified that Zane Avenue was under construction, that he parked his car in a lane that had been shut down and was marked by a construction sign and warning lights, and that the stop location was only about one block from the police station.

            Glirbas decided to impound Walker’s car and have it towed away.  Glirbas testified that the decision was based on Walker being arrested out of the car, the lack of another person at the stop location to drive it away, and the public safety hazard that would have been created by leaving it there.  While waiting for the tow truck, Glirbas searched Walker’s car and discovered crack cocaine in it.

            Walker was charged by complaint with fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2(1) (1998).  Walker moved to suppress the evidence discovered during the search of his car.  Following a Rasmussen hearing, the district court issued an order concluding that the impoundment and subsequent search of Walker’s car were improper:

[Walker] was approximately one block or so away from the police station at the time he was stopped.  He was prepared to go to the station to take care of the fine.  Further, the State never proved that [Walker] did not have a valid driver’s license.  One reason given by the officer for impounding the car was that there was no other occupant.  The officer in this case could have either allowed [Walker] to drive to the station himself or move the car approximately ten feet to remove the vehicle from the lane of traffic.  [Walker] would have been back to retrieve the vehicle shortly, and where it was parked did not constitute a public hazard.


            The state filed a motion for reconsideration, arguing that the search of Walker’s car was proper as a search incident to arrest.  The district court did not address this issue in denying the state’s motion.


            Generally, to prevail on appeal from a pretrial order suppressing evidence in a criminal prosecution, the state must establish clear error by the district court and that the error will have a critical impact on a trial.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  This court will not reverse the district court’s findings of fact unless they are clearly erroneous.  State v. Shellito, 594 N.W.2d 182, 186 (Minn. App. 1999).  Once the facts have been established, the validity of a search is a question of law subject to de novo review.  See State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998) (when a constitutional question is presented, appellate court independently reviews the facts to determine the reasonableness of the police officer’s actions); see also Othoudt, 482 N.W.2d at 221 (when reviewing a pretrial order suppressing evidence where the facts are undisputed, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed).

            1.  Walker argues that the state waived the issue of whether the search of Walker’s car was proper as a search incident to arrest by failing to raise it until the motion for reconsideration.  Because the district court has not addressed the issue, we cannot decide the merits.  See State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995) (appellate court will not decide issues that have not first been addressed by the district court).

            The question remains whether we should remand the issue to permit the district court to address it.  Although a defendant’s pretrial motion to suppress evidence should specify with particularity the grounds advanced for suppression, at the omnibus hearing, the state has the burden of proving that the evidence was not obtained in violation of the defendant’s constitutional rights.[1]  See State v. Needham, 488 N.W.2d 294, 296-97 (Minn. 1992) (discussing omnibus hearing procedure and state’s burden of proof).  Warrantless searches are unreasonable per se unless justified by an exception to the warrant requirement; therefore, the state bears the burden of showing that at least one exception applies, or evidence seized without a warrant will be suppressed.   State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988).  Accordingly, once Walker challenged the warrantless search of his car, the state had the burden of coming forth with any applicable exceptions.

            The supreme court has recognized the informal nature of an omnibus hearing.  See Needham, 488 N.W.2d at 296 (discussing how omnibus hearing is conducted in practice).  Also, although the rules of criminal procedure do not authorize motions for reconsideration of omnibus rulings, the supreme court has recognized such motions.  See State v. Montjoy, 366 N.W.2d 103, 107-08 (Minn. 1985) (holding that prosecutor properly moved for clarification and reconsideration of omnibus order); see also State v. Wollan, 303 N.W.2d 253, 254-55 (Minn. 1981) (holding that prosecutor, by filing a good-faith motion for clarification within the time limit for filing a notice of appeal from a pretrial order, extended the appeal time period).  The supreme court has also recognized that a motion for clarification or reconsideration may be the most efficient and preferable course of action because it spares all parties the time, trouble and expense of an appeal.  Montjoy, 366 N.W.2d at 107-08.  In addition to recognizing motions for reconsideration or clarification, the supreme court has concluded that

the omnibus court itself is free to entertain and grant a motion to reopen made by the state before the state’s time to file a pretrial appeal has expired.


Id. at 107; see also Needham, 488 N.W.2d at 297 (remanding for reopened omnibus hearing).

            Here, although the state labeled its motion as one for reconsideration, the state did not actually request reconsideration of the district court’s ruling, but rather raised a new issue not previously raised by either party.  The supreme court, however, has not prohibited new issues from being raised in a motion to reconsider an omnibus ruling or to reopen an omnibus hearing.  The state’s motion was timely, filed within five days of the district court’s omnibus order.  See Minn. R. Crim. P. 28.04, subd. 2(8) (time for appeal from pretrial order).  In light of the informal nature of an omnibus hearing and the absence of authority limiting the issues that can be raised in a motion to reconsider or reopen, we conclude that the state was not prohibited from raising the search-incident-to-arrest issue in its motion for reconsideration.  Having opted to entertain the motion, the district court was obligated to address the issues raised, either by deciding the merits or making findings explaining its reasons for not reaching the merits.  We, therefore, remand for the district court to address the search-incident-to-arrest issue.[2]

            2.  The police may make a warrantless inventory search of a properly impounded motor vehicle, even though they have no particular suspicion or probable cause to believe that the vehicle contains anything they have a right to seize.  South Dakota v. Opperman, 428 U.S. 364, 375-76, 96 S. Ct. 3092, 3100 (1976); City of St. Paul v. Myles, 298 Minn. 298, 300, 218 N.W.2d 697, 699 (1974).  Such searches are reasonable under the Fourth Amendment both because of the diminished expectation of privacy in an automobile as compared with that of a home and because the searches serve to protect the owner’s property while it is in police custody, to protect the police against claims or disputes over lost or stolen property, and to protect the police from danger.  Opperman, 428 U.S. at 369, 96 S. Ct. at 3097.

            The district court found that the search of Walker’s car was not a valid inventory search because impoundment was unnecessary.  “If impoundment is not necessary, then the concomitant search is unreasonable.”  State v. Goodrich, 256 N.W.2d 506, 510 (Minn. 1977).  For impoundment to be necessary, the

state’s interest in impounding must outweigh the individual’s Fourth Amendment right to be free of unreasonable searches and seizures; although the expectation of privacy with respect to an automobile is significantly less than the traditional expectation of privacy associated with the home, this interest is still constitutionally protected.


Id.  Impoundment is proper when necessary to protect public safety.  Id. (citing Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523 (1973)).

            The state argues that impoundment of Walker’s car was necessary to protect public safety.  The district court found that Walker was stopped about one block away from the police station; he was prepared to go to the police station and pay the fine; the state failed to prove that Walker did not have a valid driver’s license; and at the stop location, Walker’s car could have been removed from the traffic lane and safely parked.  The evidence supports the district court’s factual findings, and those findings support the conclusion that impoundment was unnecessary.  Based on the finding that Walker’s car could have been removed from the traffic lane and safely parked, Minn. Stat. §§ 169.32-.33, which the state cites as supporting Glirbas’s decision to impound Walker’s car, do not apply.

            Affirmed in part and remanded in part.

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

[1] An omnibus hearing is a combined Rasmussen and probable cause hearing.  State v. Thoma, 569 N.W.2d 205, 210 (Minn. App. 1997).

[2] Because the validity of Walker’s arrest may be reconsidered on remand, we express no opinion on the district court’s previous determination that the arrest was valid.