This opinion will be unpublished and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
State of Minnesota,
Roddie Anthony Erskin,
Filed June 11, 2002
Ramsey County District Court
File No. K8011620
Mike Hatch, Attorney General,
525 Park Street, Suite 500, St. Paul, MN 55103; and
Manuel Cervantes, St. Paul City Attorney, Rachel A. Gunderson, Assistant City Attorney, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, David J. Risk, Assistant Public Defender, 101 East Fifth Street, Suite 1808, St. Paul, MN 55101 (for appellant)
Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.
Appellant, a 67-year-old African-American, was convicted of the offenses of having no proof of insurance and of driving after revocation. On appeal, he argues that he was entitled to an evidentiary hearing on his claim that the stop of his vehicle for an equipment violation constituted a denial of equal protection because a disproportionate number of traffic stops are conducted on African-Americans. He contends that he has shown a discriminatory impact on a suspect class, African-Americans, and that the district court erred when it denied his motion for an evidentiary hearing. We affirm.
In the early morning of January 7, 2001, St. Paul police officer Cyr stopped a vehicle driven by appellant Roddie Erskin, a 67-year-old African-American man, in the vicinity of Payne Avenue and Edgerton in St. Paul. Officer Cyr had observed that Erskin’s vehicle displayed a cracked rear taillight in violation of Minn. Stat. § 169.55 (2000). A record check revealed that Erskin’s driving privileges had been revoked, and he was unable to provide proof of insurance because the vehicle was not insured as required by law. Erskin had been convicted on at least two prior occasions in the past ten years of no proof of insurance or no insurance. He was cited at the scene and released.
Erskin was initially charged and arraigned on misdemeanor charges of driving without valid proof of insurance, driving after revocation, and equipment violations. He pleaded not guilty to all charges. He was later charged with (1) a gross misdemeanor violation of Minn. Stat. § 169.791, subd. 2 (2000), operating a motor vehicle without providing proof of insurance on demand, the violation being within ten years of the first of two prior convictions of mandatory insurance laws; and (2) a misdemeanor violation of Minn. Stat. § 171.24, subd. 2 (2000), operating a motor vehicle while his driver’s license was revoked. When Erskin was arraigned on the new charges, the initial misdemeanor charges were dismissed, and Erskin’s counsel gave notice that a claim of discriminatory enforcement would be made.
Erskin moved (1) to dismiss the charges and (2) for an evidentiary hearing on the claim of discriminatory enforcement. Specifically, he argued that the equipment stop violated his right to equal protection under article I, section 2, of the Minnesota Constitution. In support of his motion, Erskin cited two articles from the St. Paul Pioneer Press. The first article cited a study by the St. Paul Police Department of 41,000 traffic stops made between April 15 and December 15, 2000. The study indicated that African-Americans made up 26% of motorists stopped by the police during that period. This compares with a 1999 census estimate that seven percent of all Ramsey County residents were African-American. According to the article, St. Paul Police Chief William Finney stated that the study pointed to “six officers who stopped black drivers almost exclusively.” He indicated that these officers had been counseled, and three had been reassigned. The second article referenced a study by the Institute on Race and Poverty, which showed that African-American drivers were stopped in disproportionately high numbers in 80 of 82 of St. Paul’s census tracts. The study showed that African-Americans were stopped at the highest rates in neighborhoods that were mostly white. For instance, in census tract 364, which straddles the Highland Park and Macalester-Groveland neighborhoods and is almost exclusively white, of the 83 motorists stopped during the study period, 11 were African-American. According to the article, this was “an 848 percent difference between the number of blacks stopped and the number expected to be stopped.”
The district court denied Erskin’s motion for an evidentiary hearing on the issue of discriminatory enforcement. The court reasoned that Erskin had been stopped for a legitimate equipment violation and that absent an indication that there were other people in the area who had committed exactly the same violation and had not been stopped, he could not support an argument of discriminatory enforcement.
After the motion was denied, Erskin waived his right to a jury trial. The matter was then submitted to the court on stipulated facts. The court found Erskin guilty of both charges and sentenced him to concurrent stayed sentences. This appeal followed.
D E C I S I O N
The Equal Protection Clause of the Fourteenth Amendmentto the United States Constitution prohibits intentional, discriminatory enforcement of nondiscriminatory laws. City of Mpls. v. Buschette, 307 Minn. 60, 64, 240 N.W.2d 500, 502 (1976) (citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1964 (1886)). Although criminal prosecutions are presumed to have been undertaken in good faith and in a nondiscriminatory manner, State v. Hyland, 431 N.W.2d 868, 872 (Minn. App. 1988), the Minnesota Supreme court has held that a criminal defendant may raise the defense of discriminatory enforcement of criminal laws by law-enforcement officials on all levels. Buschette, 307 Minn. at 66, 240 N.W.2d at 503. The discriminatory-enforcement issue is properly considered at a pretrial hearing, where the defense has the burden of proving discrimination by a clear preponderance of the evidence. Id. If intentional and purposeful discrimination is shown, the court may then dismiss the charge against the defendant. Id. at 66, 240 N.W. 2d at 503-04.
In order to make a threshold showing to trigger a discriminatory-enforcement hearing, a defendant must allege sufficient facts to take the question past the frivolous state. Hyland, 431 N.W.2d at 873. Because the decision to deny a hearing is similar to an evidentiary ruling, this court reviews the decision under an abuse-of-discretion standard. See State v. Henderson, 620 N.W.2d 688, 704 (Minn. 2001) (abuse-of-discretion standard used to review district court’s determination that defendant had failed to establish a prima facie case of purposeful discrimination in the exercise of a peremptory challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986)); see also State v. Naylor, 474 N.W.2d 314, 318-19 (Minn. 1991) (admission of evidence is reviewable under abuse-of-discretion standard).
To prove discriminatory enforcement, a defendant must establish, prima facie,
(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right.
Hyland, 431 N.W.2d at 872-73 (citing State v. Russell, 343 N.W. 2d 36, 37 (Minn. 1984) (Russell I)). Therefore, to take a discriminatory-enforcement claim beyond the frivolous state, the defendant must allege facts showing both that he was singled out for enforcement and that his selection was invidious or in bad faith. Id.
In this case, appellant does not allege discriminatory prosecution after his arrest, but rather that his initial stop for a minor equipment violation was impermissibly based on his race. He argues that the conduct of the police in conducting the traffic stop meets the two-pronged Hyland test for establishing discriminatory enforcement. Specifically, he alleges that: (1) he was singled out because St. Paul police department patterns of traffic-law enforcement had a discriminatory impact on African-Americans, and (2) because he is a member of a suspect class, that singling out was invidious or in bad faith. Appellant urges this court to adopt, for the purpose of establishing discriminatory enforcement, the strict-rational-basis test enunciated in State v. Russell, 477 N.W.2d 886 (Minn. 1991) (Russell II). In Russell II, the Minnesota Supreme Court applied a rational-basis test under article I, section 2, of the Minnesota Constitution that was more stringent than the federal equivalent under the United States Constitution, to invalidate a state statutory distinction between possessing a quantity of crack cocaine, which was possessed mostly by African-Americans, and a quantity of cocaine powder, which was possessed mostly by white persons. In so doing, the court noted that because cocaine was possessed mostly by African-Americans and cocaine powder was possessed mostly by white persons, the statutory scheme put a “disproportionate burden on the very class of persons whose history inspired the principles of equal protection.” Russell II, 477 N.W.2d 889.
Subsequently, however, this court declined to expand the holding in Russell II to a situation where no statutory scheme was implicated. In State v. Morrow, 492 N.W.2d 539, 548 (Minn. App. 1992), this court held that the revocation of appellant’s probation did not violate his equal-protection rights under the United States or Minnesota constitutions. In so doing, although we noted that equal protection also applies to non-legislative state action, we recognized the difficulty in
attempt[ing] to fashion an equal protection analysis under the Minnesota Constitution to address a challenge that involves no statutory enactment.
Id. at 548 n.7, 549. Similarly, we decline to apply the standard enunciated in Russel II to appellant’s routine stopfor an equipment violation.
A stop amounting to intentional discriminatory enforcement of the law is unconstitutionally pretextual. Gerding v. Commissioner of Pub. Safety, 628 N.W.2d 197, 200-01 n.2 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). But the United States Supreme Court has held that a police officer’s actual or ulterior motives do not invalidate police action when that action is justifiable on the basis that a violation of the law has occurred. Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996). In this state, when a police officer has a reasonable, articulable basis to believe that a violation of law has occurred, an investigatory stop is valid regardless of the officer’s motivations. State v. Battleson, 567 N.W.2d 69, 71 (1997). See 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.”) In this case, appellant admitted that there was a factual basis for the officer stopping him: the taillight on his car was cracked in violation of the traffic law. In the course of the investigatory stop, he was found to be driving after revocation and without proof of insurance, for which he was charged and prosecuted. Therefore, because the officer had an objective basis for stopping the vehicle, the stop was valid under Minnesota law.
To establish a basis for his claim that he was singled out, appellant also produced two newspaper articles citing statistical studies with information concerning the disproportionate number of minorities stopped for traffic offenses in the city of St. Paul. One of the articles contained information that six traffic officers were found to have stopped “almost exclusively” African-American drivers; those officers had been counseled and reassigned. Appellant moved for discovery of the names of the six officers in question; his motion, however, was denied, and he has not pursued the court’s denial of that motion on appeal. Beyond the statistical studies and the two newspaper articles, he cited no specific evidence to show that he had been singled out for enforcement of a traffic regulation because of his race.
Appellant also argues that because he is a member of a suspect class, any singling out was invidious or in bad faith. In this regard, he cites to the following language in Hyland:
Even if Hyland’s allegation was sufficient to make his claim of being singled out not frivolous, Hyland did not allege facts that show any singling out was invidious or in bad faith. Specifically, the facts alleged by Hyland did not show that he was a member of a suspect class, that he was exercising a fundamental right, or that any intentional, deliberate, or systematic singling out occurred.
Hyland, 431 N.W.2d at 873 (citation omitted).
Appellant, however, misreads Hyland. The import of the Hyland test is that it requires not only singling out, but singling out for the purpose of discrimination, i.e., because a person is a member of a suspect class or because he is exercising a fundamental right. This view comports with established Minnesota case law. See State v. Woodward, 378 N.W.2d 32, 33-35 (Minn. App. 1985), review denied, (Minn. Jan. 23, 1986) (holding that the fact that a high percentage of people arrested by police decoy unit were minorities was not sufficient to show discriminatory intent for the purpose of establishing discriminatory enforcement); Buschette, 307 Minn. at 70-72 n.8, 240 N.W.2d at 506 n.8 (in discussing claim for discriminatory enforcement, court referred to “intentional and purposeful discrimination”).
We are not unmindful of social concerns arising from the problem of police stopping minority drivers on a pretextual basis. However, appellant admits that he violated the law and cannot challenge the fact that the officer had a ground to stop him for that violation. To hold that appellant need only show that he was a member of a suspect class, without requiring proof of intentional discrimination, would effectively allow any member of a suspect class, simply by membership in that class, to avoid prosecution for a routine traffic violation. In order to sustain his burden of production to obtain a discriminatory-enforcement hearing, appellant would have had to produce specific evidence showing that he in particular, as an African-American driver, was targeted for a traffic stop because of his race. This would have included evidence that similarly situated white drivers were not stopped for similar violations. He was unable to meet this burden. Therefore, we conclude that the district court did not abuse its discretion in denying appellant’s motion for a discriminatory-enforcement hearing.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Erskin also moved for disclosure of: (1) all data on traffic stops made by the St. Paul Police Department since April 15, 2000; (2) all reports and/or memoranda regarding traffic-stop data and any plans regarding the data; and (3) the identity of any police officers disciplined and/or reassigned as a result of internal review of the traffic stop-data. The district court denied his motion in a pretrial order. At that point, Erskin could have sought review of that order with a petition for discretionary review to this court. See Minn. R. Crim. P. 28.02, subd. 3. In any case, on appeal he failed to raise or brief the issue of the denial of his discovery motion. Issues not briefed on appeal are waived. State v. Butcher, 563 N.W. 2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).
 Phillip Pina and Janet Roberts, St. Paul police amend data on traffic stops, race, St. Paul Pioneer Press, January 12, 2001, at B1.
 Bill Gardner, Black drivers stopped at high rate, St. Paul Pioneer Press, May 24, 2001, at B1. At the motion hearing, Erskin’s counsel discussed the results of the study of the Institute on Race and Poverty. Although he had obtained a copy of the study, it does not appear as part of the record on appeal.
 In this opinion there are citations to two supreme court cases with the same name. The case of State v. Russell decided in 1984 is cited as State v. Russell I, and the case decided in 1991 is cited as State v. Russell II.
 These facts may be contrasted with those in our recent unpublished opinion of State v. Pinkal, No. C6-00-508, 2001 WL 55463 (Minn. App. Jan. 23, 2001). In Pinkal, we held that the district court erred in failing to order a discriminatory-enforcement hearing on the issue of whether the indecent conduct statute was selectively enforced against the defendant as a gay man. Id. at *7. The defendant in Pinkal produced, among other evidence: (1) an affidavit swearing to statements made by a St. Paul city attorney that gay men convicted of indecent conduct should be compelled to register as sex offenders, and (2) an affidavit swearing to statements made by a former city police officer that heterosexuals were not charged with indecent conduct. Id.
 See, e.g., Scott Moriarty, Responding to the Issue of “Driving While Black”: A Plan for Community Action Through Litigation and Legislation, 27 Wm. Mitchell L. Rev. 2031 (2001); David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters, 84 Minn. L. Rev. 265 (1999).