This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-01-1063

 

Ryan Samuel Goodermont, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed December 4, 2001

Affirmed

Forsberg, Judge*

 

Hennepin County District Court

File No. IC479561

 

Gregory S. Sofio, Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402 (for appellant)

 

Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Harten, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

On appeal from a district court order sustaining appellant’s driver’s license revocation, appellant Ryan Samuel Goodermont contends that (1) the arresting officer’s subjective belief that his vehicle’s exhaust system violated Minn. Stat. § 169.69 was insufficient to justify the stop and (2) Minn. Stat. § 169.69 is unconstitutionally vague.  We affirm.

FACTS

            On January 23, 2001, at approximately 12:58 a.m., Officer Louis Gollop and his partner observed a 1991 Chevy pickup truck driven by Goodermont approaching them and travelling southbound.  Gollop’s attention was drawn to the pickup truck because of the exhaust noise as the truck passed by.  Gollop testified that it was “louder, clearly after factory exhaust,” and that he could hear it even with the windows of the patrol car rolled up and two police radios on.  He testified that the exhaust noise was “very obvious,” that the area where they were driving was “particularly loud * * * anyway, but it clearly was an outstanding sound, the sound of an after factory exhaust is pretty distinguishable.”  Gollop stated:

A normal vehicle exhaust will blend the exhaust noise in with the vehicle noise so it’s not audible unless you are basically right next to the vehicle or at a close distance.  This had a loud, sort of punching sound, I guess you would call it.  It was made to be audible.

 

Officer Gollop originally heard the exhaust from approximately 100 to 150 feet away and could still hear it from several hundred feet away after the truck passed.  Gollop admitted that the vehicle was originally climbing a hill so that the exhaust might have been a little louder.  Gollop testified that he had ticketed persons for the offense of loud exhaust in the past.  He has been an officer for approximately nine years.

            After hearing the loud exhaust, Gollop turned the patrol car around and pulled behind Goodermont’s truck, following it.  Once behind the truck, Gollop noticed the registration tab stickers on the rear license plate were blocked by snow.  Gollop also noticed a decorative cover over the taillights.  The officers effected a traffic stop of Goodermont’s truck and approached on foot.  As Gollop got closer to the vehicle, he was able to see the registration tabs from a standing position and observed that they were current.  As Gollop began speaking with Goodermont, he noticed an odor of alcohol coming from Goodermont.  This observation led to field sobriety testing, and ultimately, Goodermont’s arrest for DWI.  No testing was performed on the exhaust system of the vehicle, aside from an independent test paid for by Goodermont, which revealed that the exhaust system was in good working order.

            At trial, the parties stipulated that the decorative taillight covers were not a basis for the stop.  Goodermont did not raise the argument that Minn. Stat. § 169.69 (2000) was unconstitutionally void for vagueness.  The district court sustained the revocation of Goodermont’s driving privileges.

D E C I S I O N

            1.         Goodermont argues that Officer Gollop’s suspicion that he violated Minn. Stat. § 169.69 was insufficient to justify a stop of his vehicle.  The Fourth Amendment to the United States Constitution, and article I of the Minnesota Constitution, prohibit unreasonable searches and seizures by the government.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Under the Fourth Amendment, police officers may, however, make limited, warrantless investigative stops of vehicles when there is a particularized and objective basis for suspecting the stopped person of criminal activity.  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996).

            When we review a stop based on given facts, the test is not whether the trial court decision is clearly erroneous, but whether, as a matter of law, the basis of the stop was adequate.  Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  The stop must not be the product of “mere whim, caprice, or idle curiosity.” State v. Harris, 572 N.W.2d 333, 337 (Minn. App. 1997) (quotation omitted).  Instead, it must be based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant [the] intrusion.”  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996)(quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  “Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.”  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

            Minn. Stat. § 169.69 provides:

Every motor vehicle shall at all times be equipped with a muffler in good working order which blends the exhaust noise into the overall vehicle noise and is in constant operation to prevent excessive or unusual noise, and no person shall use a muffler cutout, bypass, or similar device upon a motor vehicle on a street or highway. The exhaust system shall not emit or produce a sharp popping or crackling sound.

 

Goodermont argues that Gollop’s observation of “excessive” muffler noise was subjective and, therefore, could not possibly justify a stop of his vehicle.  However, as stated in George, an officer’s observation of a traffic violation provides an objective basis for a stop, no matter how insignificant the violation.  557 N.W.2d at 578.

            Goodermont contends that this case is similar to State v. Bender, 381 N.W.2d 896, 897 (Minn. App. 1986), in which this court affirmed the district court’s findings that the officer did not have an articulable basis to effect a traffic stop based on excessive acceleration and loud exhaust noise.  In Bender, the arresting officer testified that as the vehicle drove by, it “accelerated rapidly * * * causing excessive loud noise and loud exhaust.”  Id. at 896.  The officer’s general statement was the only evidence supporting his stop of Bender’s vehicle.

            This court distinguished another case, with facts similar to this one, from Bender in State v. Clark, 394 N.W.2d 570 (Minn. App. 1986).  The Clark court explained:

            In [Bender], the arresting officer stopped a vehicle after observing loud exhaust and rapid acceleration as the vehicle passed by.  Affirming the trial court, this court determined that the stop was invalid because the arresting officer did not suspect the driver of driving while under the influence (the driver did not exceed the speed limit, drive recklessly, or commit any other traffic offense); the officer did not infer from the driver’s conduct that he was involved in any sort of criminal activity; and the officer did not ticket the driver for a defective muffler or testify that the level of noise would have constituted a violation (the officer had only stated that in his subjective opinion the car made “excessive noise.”) 

 

            Unlike this case, the arresting officer in Bender did not testify that there had been a violation of the law.  Here, two violations can be inferred from Wyffels’ testimony:  Wyffels heard loud exhaust noise coming from the vehicle which led him to suspect the muffler was inoperative, and he could not see the rear license plate.  Although the trial court did not find Wyffels’ observation of respondent’s “drunken stare” to be reasonable or credible, these other factors articulated by Wyffels which relate to the condition of respondent’s automobile support an objective inference that there had been a violation of the law.   

           

Id. at 572 n.1 (citations omitted).

 

            In this case, Gollop’s testimony regarding the stop demonstrated that there was a violation of the law and that it was much more than merely “insignificant.”  Gollop testified that he heard the muffler noise from several hundred feet away, with the windows rolled up, two police radios on, and in a noisy area.  He testified that the noise was  “very obvious,” “particularly loud,” and “clearly * * * an outstanding sound.”  Gollop even testified specifically as to how the noise violated the statute, stating that it made a “loud, * * * punching noise,” which made it audible from a distance.  The district court did not err by finding that Gollop had a reasonable basis to justify a stop of Goodermont’s vehicle.

            Because we conclude that the loud exhaust noise formed a basis for the stop, we will not address the state’s alternative argument that Gollop was justified in approaching Goodermont to discuss the alternative reason for the stop, that Gollop could not see the registration tabs from his seated position in the police car.  We also decline to address the state’s contention that it may now raise the issue of the taillight covers as a basis for the stop even though the parties stipulated at trial that the taillight covers did not justify a stop.           

2.         The constitutionality of a statute is a question of law we review de novo.  State v. Stallman, 519 N.W.2d 903, 906 (Minn. App. 1994).  Where no fundamental right or suspect class is involved, the challenged statute or ordinance is presumed constitutional, and the challenger must prove it is unconstitutional.  Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983).

Goodermont contends that the statute is void for vagueness.  The state argues that this court should not consider the constitutionality of the statute because it was not raised before the district court.  As a general matter, this court will not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  An exception may be made for constitutional issues where required in the interest of justice, when the parties have adequate briefing time, and when the issues were implied in the lower court.  Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).

In this case, the parties have had adequate briefing time.  Neither party would be prejudiced by the consideration of this issue, as the issue is not dependent on any new or controverted facts.  See Watson v. United Serv. Auto. Ass’n, 566 N.W.2d 683 (Minn. 1997) (discussing the factors favoring review of constitutional issues not raised in court below).  In addition, the issue of the constitutionality of the statute was implied in the district court when it stated:

[T]his court is troubled by the apparent lack of standards by which to judge whether a vehicle’s exhaust system violates Minn. Stat. Sec. 169.69.  * * * The standard set out in Minn. Stat. 169.69 for exhaust noise is vague, and not capable of measurement.  However, since the Court of Appeals in State v. Clark accepted “loud exhaust noise” as a legitimate basis for a stop, this court feels constrained to conclude the validity of the stop in this case as well.

    

We will review this issue in the interest of justice.

Courts should exercise extreme caution before declaring a statute void for vagueness.  Getter v. Travel Lodge, 260 N.W.2d 177, 180 (Minn. 1977) (citation omitted).  A statute is void due to vagueness only if it fails to define a criminal offense “with sufficient definiteness and in a manner that does not encourage arbitrary and discriminatory enforcement.”  Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983); see also Baggett v. Bullitt, 377 U.S.360, 367, 84 S. Ct. 1316, 1320 (1964) (defining void for vagueness); State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985) (discussing void for vagueness doctrine). 

A defendant may not successfully challenge a statute as unconstitutionally vague if the statute clearly applies to the defendant’s alleged conduct.  State v. Grube, 531 N.W.2d 484, 490 (Minn. 1995) (quotation omitted).  The statute in this case clearly applies to Goodermont’s conduct.  Gollop testified that the noise from Goodermont’s muffler was  “very obvious,” “particularly loud,” and “clearly * * * an outstanding sound.”  Gollop’s description would clearly meet the definition of “excessive noise” as set out in the statute.  In addition, the fact that Gollop could hear the exhaust from several hundred feet away would indicate that Goodermont’s muffler did not “blend the exhaust noise into the overall vehicle noise.”  Because the statute clearly applies to Goodermont’s conduct, we decline to consider the statute is vague enough to be invalidated as unconstitutional.

            Affirmed.

 

           



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