This opinion will be unpublished and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
Charles William Kelley,
Filed July 23, 2002
Robert H. Schumacher, Judge
Jeffrey R. Edblad, Isanti County Attorney, Thad N. Tudor, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for appellant)
Mary M. McMahon, 2499 Rice Street, Suite 140, Roseville, MN 55113-2424 (for respondent)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
The state appeals from a pretrial order granting respondent’s motion to suppress evidence of intoxication and dismissing the charges against him. The state argues that a police officer, upon seeing respondent drive on a downtown street marked as closed to through traffic in the early morning hours, without stopping at any businesses, then drive between barricades at the other end of the street, had a reasonable, articulable suspicion justifying a traffic stop. We affirm. Respondent’s motion to strike is denied.
On July 21, 2001, Cambridge Police Officer Matthew Bemis was on duty and driving north on County Road 30 (also known as Main Street), which was under construction at the time. At approximately 12:39 a.m., Bemis observed a white convertible approximately one block ahead of his squad car. Bemis followed the white convertible to the intersection of County Road 30 and Highway 95. At a contested hearing before the district court, Bemis testified that four barricades that “had big three tiered metal plates with reflective * * * material on them” had been placed across County Road 30 at this intersection. Bemis testified that there was “[j]ust enough” space between the barricades “to get a vehicle through.” Bemis testified that prior to the intersection, he observed signs reading “No Through Traffic, Road Closed.” Bemis testified that the driver of the white convertible did not stop at any of the businesses along Main Street, drove through the barricades, and turned onto Highway 95. Bemis then activated his emergency lights and stopped the driver. Bemis testified that this stop was based solely on his observation of the vehicle going through the barricades. Bemis testified that all of the businesses on this stretch of Main Street were closed at this time as it was almost one in the morning. The driver was identified as respondent Charles William Kelley.
Kelley testified that he was coming from the American Legion. He testified that there was a sign that read “Open to Local Business.” The location of the Cambridge American Legion in relation to the barricades on Main Street is unclear from the testimony. A diagram was used during the district court hearing that was not provided on appeal. Bemis testified that there were routes, other than the one Kelley took through the barricades on Main Street, that he could have taken to get from the American Legion to Highway 95. The district court asked Bemis if the signs read no through traffic, but open to local business. Bemis answered affirmatively. Bemis testified that there are local bars and businesses in Cambridge, including the American Legion, that are open until one in the morning.
Kelley was charged with third-degree DUI and driving around a barricade. After a contested hearing, the district court concluded that the stop of Kelley’s vehicle was unlawful because there was no reasonable, articulable suspicion for the stop. The court granted Kelley’s motion to suppress all of the evidence from the stop and dismissed all charges against him for want of probable cause. The State of Minnesota appeals.
D E C I S I O N
When the state appeals from a pretrial suppression order, it
must ‘clearly and unequivocally’ show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.
State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)). Here, if the initial investigatory stop was unlawful, then the evidence obtained as a result of the stop must be suppressed. Because the district court’s suppression of the evidence in this case precludes prosecution, the state has satisfied the critical-impact standard.
A police officer may make an investigatory stop of a motor vehicle if the officer has “specific and articulable facts establishing reasonable suspicion of a motor vehicle violation or criminal activity.” State v. Duesterhoeft, 311 N.W.2d 866, 867 (Minn. 1981) (quotation omitted).
[T]o make a lawful traffic stop, a law enforcement officer must have a particularized and objective basis for suspecting the particular persons stopped of criminal activity.
State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (quotation omitted). “[T]he factual basis required to support a stop for a ‘routine traffic check’ is minimal.” State v. Johnson, 257 N.W.2d 308, 309 (Minn. 1977) (quotation omitted). An officer, however, must have “something more than an unarticulated ‘hunch’; the officer must be able to point to something objectively supporting that suspicion.” State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (citations omitted).
The state contends that Bemis observed a violation Minn. Stat. § 160.27, subd. 5(14) (2000), giving him an objective basis for stopping Kelley’s vehicle.
[I]t shall be unlawful to:
* * * *
drive over, through, or around any barricade, fence, or obstruction erected for the purpose of preventing traffic from passing over a portion of a highway closed to public travel or to remove, deface, or damage any such barricade, fence, or obstruction.
Minn. Stat. § 160.27, subd. 5(14). The district court stated on the record near the conclusion of the hearing:
[T]he problem is in the manner in which the barricades were set up. That’s kind of an ongoing problem that I was kind of aware of anyway.
If they’re open for local traffic then it was a little bit vague that they would allow, when there was no through street, that they would allow an opening for a car to be able to get through. That’s the first problem because they did and they were allowed. There was-- at different times when they moved around there was an opening so that one car—when they specifically did not want vehicles to go in there, like they were specifically working on it, they barricaded that thing up tight. You could not get across.
* * * *
I am believing that the officer exercised his action in good faith believing that it was improper to take the turn even though it was open and used for traffic.
The record is unclear as to whether the road was in fact closed. The statements of the district court at the hearing indicate that the court concluded that it “was open and used for traffic.” So Bemis’s belief, however sincere, that Kelley violated Minn. Stat. § 160.27, subd. 5(14), was not an objective legal basis for a traffic stop, when Kelley in fact, had not violated any traffic law. See George, 557 N.W.2d at 576 (“A law enforcement officer’s belief a motorcycle headlight configuration to be illegal is not an objective legal basis for a traffic stop where the headlight configuration clearly conformed to Minnesota law.”).
On this record, based on the specific facts of this case, we conclude that the state has not clearly and unequivocally shown that the district court’s order constituted error. Accordingly, we affirm the district court’s order suppressing the evidence against Kelley and dismissing the charges against him.
Kelley filed a motion to strike the portions of the state’s brief and appendix that discuss certain provisions of the Minnesota Manual on Uniform Traffic Control Devices, because these provisions were not included in the record before the district court. The Minnesota Manual on Uniform Traffic Control Devices is a government-approved document that is readily available to the public. It is a legal reference. Judicial notice may be taken of facts generally known in the jurisdiction or readily capable of accurate determination by resort to outside sources. Minn. R. Evid. 201(b). It is appropriate for “facts of common knowledge not in dispute, and those for which neither expertise nor foundation is needed.” State v. Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985) (citing Minn. R. Evid. 201). Kelley’s motion to strike is denied.
Affirmed; motion denied.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.