This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





David John Mendel,




Filed September 17, 2002

Klaphake, Judge


Stearns County District Court

File No. K6004465



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


Jan F. Petersen, St. Cloud City Attorney, Matthew A. Staehling, Assistant City Attorney, 400 2nd Street South, St. Cloud, MN  56301 (for respondent)


Michael E. Novak, Peter A. Donohue, Donohue Novak at Law, 804 W. St. Germain Street, P.O. Box 971, St. Cloud, MN  56302 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant David Mendel was convicted of two counts of gross misdemeanor driving while under the influence of alcohol.  Minn. Stat. §§ 169.121, subds. 1(a), 1(f), 3(c)(1), 3(c)(2)(ii), 169.121, subds. 1(a), 3(c)(2)(ii) (1998 & Supp. 1999).  Mendel claims that the stop was unlawful and that the district court denied him a speedy trial by granting a continuance.  Because the state trooper had specific and articulable facts to justify a limited investigatory stop, and because Mendel’s right to a speedy trial was not violated where the court granted a continuance and Mendel failed to assert his right to a speedy trial, we affirm.



            We review de novo the question of whether police had a reasonable and articulable suspicion of criminal activity on which to base a limited investigatory stop.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).   An officer must be able to “‘point to specific andarticulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’”  Id. (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  There must be an “objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”  State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (quotation omitted).  Ordinarily, if an officer observes even a minor traffic infraction, there is an objective basis for a stop.  State v. Wagner, 637 N.W.2d 330, 335-36 (Minn. App. 2001). 

            The question here is whether Sutherland’s mistaken belief that he had observed an infraction, when none occurred, can be the basis for a stop.  Mendel argues that because Trooper Sutherland did not observe an actual traffic infraction, there is no objective basis for the stop and all evidence gathered after the stop should be suppressed.  He relies on George, 557 N.W.2d at 578, where the defendant was stopped because the trooper believed that having three lights on a motorcycle was unlawful.  The supreme court held that the stop was illegal because the defendant was not in violation of the law by having one headlight and two passing lights, which is a legal configuration.  Id. at 578-79; see also Timmerman v. Comm’r of Pub. Safety, No. C0-00-973, 2000 WL 1778316 (Minn. App. Nov. 21, 2000) (because there is no legal requirement to signal turn when entering public road from parking lot, officer’s mere belief that this action is traffic violation is insufficient to establish objective legal basis for stop). 

            Both George and Timmerman, however, involved officers basing stops on conduct that they believed constituted a traffic violation, when as the law actually read, the conduct did not violate any law.  Here, Sutherland believed that he saw conduct that would have constituted a violation of traffic laws, crossing the centerline, but he was wrong about what he saw.  Thus, at the moment of the investigatory stop, Sutherland had a reasonable and articulable belief that Mendel had committed a traffic violation. 

            Thus, this case is more similar to City of St. Paul v. Vaughn, 306 Minn. 337, 339, 237 N.W.2d 365, 367 (1975), where police stopped Vaughn in the mistaken belief that Vaughn was actually his brother, who they knew did not have a driver’s license.  The supreme court reversed the district court’s suppression of evidence, commenting that where police honestly believed they had stopped the proper individual, they were not acting on a hunch, but had specific and articulable facts on which to base a stop.  Id. at 341-44, 237 N.W.2d at 367-70.  The court therefore ruled that the initial mistake in identity did not render the stop invalid.  Id. at 344, 237 N.W.2d at 370.   

            In a similar vein, in State v. Engholm, 290 N.W.2d 780 (Minn. 1980), the court refused to reverse the district court’s admission of evidence, concluding that police had sufficient cause to stop the defendant’s car.  The defendant was driving 10-15 miles per hour under the speed limit and was weaving back and forth within his lane.  Id. at 782.  The police officers, suspecting that the defendant was driving under the influence of alcohol, followed him to his home, triggering a series of events that eventually led to charges of obstructing legal process and simple assault.  Id. at 783.  The supreme court concluded that the police had reasonable and articulable facts amounting to more than a mere hunch for investigating the defendant.

            Similarly, at the moment of the stop here, Sutherland had specific and articulable facts that led him to conclude that a violation had occurred, although later investigation showed that his perception, but not his understanding of the violation, had been faulty.  We therefore conclude that Sutherland’s mistaken observation was sufficient to support a brief investigatory stop.


            Mendel argues that the state’s actions in opposing defense requests for continuances and failing to appear for trial on July 19, 2001, violated his right to a speedy trial.  A defendant is assured of a right to a speedy trial by both the United States Constitution and the Minnesota Constitution.  U.S. Const. amend. 6; Minn. Const. art. 1, § 6.  In determining if this right has been vindicated, four factors are weighed: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.  State v. Helenbolt, 334 N.W.2d 400, 405 (Minn. 1983) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)).  The district court has considerable discretion in deciding whether to grant a continuance.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). 

            Although Mendel frames this as a speedy trial issue, part of his objection is that the district court refused to grant him continuances so that his implied consent appeal could be decided prior to the criminal trial.  Mendel made no request for a speedy trial until he objected to the state’s request for a continuance from July 19 to August 30, 2001.  This is a delay of only about six weeks, in a matter that Mendel himself repeatedly attempted to delay.  Mendel argues that he was prejudiced because the Commissioner of Public Safety reinstated his driving privileges in the implied consent matter, but he still faces cancellation if his conviction for DWI stands.  In any event, because the issues and interests are different in criminal trials and implied consent hearings, the commissioner’s decision would not be controlling in the criminal matter.  See Wagner, 637 N.W.2d at 337.

            We therefore conclude that Mendel was not denied his right to a speedy trial and that the district court did not abuse its discretion in granting the state a continuance.