This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Chad Allen Quitberg,




Filed February 10, 2004

Affirmed in part, reversed in part, and remanded

Anderson, Judge


St. Louis County District Court

File No. KX-02-300369


Lisa Agrimonti, Special Assistant State Public Defender, Briggs and Morgan, P.A., 2200 First National Bank Building, 332 Minnesota Street, St. Paul, MN  55101 (for appellant)


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, W. Karl Hansen, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2128; and


Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN  55802 (for respondent)


Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Anderson, Judge.



U N P U B L I S H E D  O P I N I O N




In this appeal from a conviction of second-degree possession of a controlled substance, appellant challenges both the admission of evidence and his Lothenbach stipulation.  Appellant argues that law-enforcement officers impermissibly frisked him and that he did not personally waive his right to a jury trial prior to entering into the Lothenbach stipulation.  We affirm in part, reverse in part, and remand.   



On March 28, 2002, at approximately 8:00 p.m. in a wooded area, Officer Brian Hacker stopped appellant, Chad Quitberg, for illegally driving his ATV on the road.  Hacker noticed appellant’s eyes were bloodshot and watery, his pupils were dilated, and his speech was slurred.  Throughout the stop, appellant was uncooperative demanding either immediate arrest or release.  Because Hacker believed appellant was under the influence of a chemical, Hacker gave appellant a preliminary breath test (PBT), which did not show alcohol consumption.  Hacker did not administer a field sobriety test because of muddy conditions and the presence of snow and ice on the ground.

Because appellant’s driver’s license was revoked, appellant’s ATV was towed.  Hacker and his partner, Sergeant Hager, decided to provide a ride home to appellant because appellant could not be left alone in the woods, in March, at night, without transportation.  The officers intended to issue only a citation to appellant and did not intend to arrest him for the ATV violation.  The officers decided to frisk appellant because appellant was going to be in the squad car, appellant was believed to be under the influence, appellant was uncooperative, and appellant’s clothing was baggy and could easily conceal a weapon.  Hacker frisked appellant, finding a pipe in appellant’s pocket.  Hacker then asked appellant if appellant had anything else in his pockets that the officer should be aware of; appellant said, “[Y]es,” and withdrew a bag of marijuana and a bag of methamphetamine from his pockets.  After the discovery of drugs, appellant was arrested and charged with second-degree possession of controlled substances in violation of Minn. Stat. § 152.022, subd. 1(1) (2000).

After appellant unsuccessfully moved to suppress the pipe and the drugs, appellant decided to enter a Lothenbach stipulation.  At the Lothenbach hearing, the following exchange occurred:

THE COURT:  Mr. Quitberg, do you understand what’s going on here today?




THE COURT:  This is what—this is the procedure you’re willing to engage in here today?




THE COURT:  Just so we’re clear on the record, Mr. Groettum and Mr. Simonson, you are submitting to the Court count one for determination pursuant to State v. Lothenbach, which essentially is a court trial based upon the record.  Is that correct?


APPELLANT’S ATTORNEY:  That’s correct, Your Honor.


RESPONDENT’S ATTORNEY:  That’s correct, Your Honor.  That would be the possession of methamphetamine in the second degree with intent to sell.


Appellant was convicted, and this appeal followed.


1.  Search incident to arrest

The district court found the search was valid as a search incident to arrest because appellant was subject to arrest for either driving after revocation or for driving under the influence even though he was ultimately arrested for another, more serious, offense. 

Police officers are authorized to search lawfully arrested individuals.  United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973).  An arrest for a crime other than the crime providing the basis for the search is a factor, but only one factor, in determining the validity of the search, and a search may be justified on the grounds that a suspect could have been arrested for a crime other than the charged offense.  State v. Varnado, 582 N.W.2d 886, 893 (Minn. 1998); see State v. White, 489 N.W.2d 792, 794-95 (Minn. 1992).  Minn. R. Crim. P. 6.01, subd. 1(1)(a) states:

Law enforcement officers acting without a warrant, who have decided to proceed with prosecution, shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation.  The citation may be issued in lieu of an arrest, or if an arrest has been made, in lieu of continued detention.  If the defendant is detained, the officer shall report to the court the reasons for the detention.  Ordinarily, for misdemeanors not punishable by incarceration, a citation shall be issued.


            There is probable cause to arrest a person for driving under the influence if there is one objective fact indicating the person is under the influence.  Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983).  Objective facts may include: (1) bloodshot and watery eyes, (2) slurred speech, (3) the smell of alcohol, and (4) an uncooperative attitude.  Id.  In Holtz, a defendant exhibiting all four of the enumerated facts provided “overwhelming” evidence of driving under the influence despite the fact that neither a roadside sobriety test nor a PBT was performed.  Id. at 364-65.

            It is a misdemeanor for a person to operate a motor vehicle while under the influence of a controlled substance.  Minn. Stat. § 169A.20, subd. 1(2) (2000).  A law enforcement officer with probable cause to believe a person is operating a vehicle while under the influence of a controlled substance is expressly authorized to arrest that individual.  Minn. Stat. § 169A.40, subd. 1 (2000). 

The district court concluded that because appellant could have been arrested for driving under the influence, the search was proper.  See Varnado, 582 N.W.2d at 893.  Here, there was probable cause to arrest appellant for driving under the influence because appellant exhibited multiple indicia of intoxication: (1) bloodshot and watery eyes, (2) dilated pupils, (3) slurred speech, and (4) an uncooperative attitude.  See Holtz, 340 N.W.2d at 365.  Neither the PBT test nor the absence of a field sobriety test changes this conclusion; the PBT only tests for alcohol, not other controlled substances, and a field sobriety test is not necessary to determine a person is under the influence.  See id.  Because only one objective factor is needed to find probable cause that appellant operated his vehicle while under the influence, there was probable cause to conclude appellant was driving under the influence because appellant exhibited four indicia of intoxication.  See id.

            Because Minn. Stat. § 169A.40, subd. 1, permits arrest of persons operating vehicles while under the influence of a controlled substance and because the police officers had probable cause to arrest appellant for driving while under the influence, the search was proper and the district court did not err in admitting the evidence of appellant’s drug possession.

2.  Waiver of jury trial

Appellant argues that he did not properly waive his right to a jury trial.  Respondent concedes that appellant’s waiver was not done personally and explicitly but argues that the purported waiver is still effective because appellant was aware of what was going on and was familiar with the judicial system.

Criminal defendants are entitled to a trial by jury.  U.S. Const. amend VI; Minn. Const. art. 1, §§ 4, 6.  A defendant can waive this right, but the waiver must be knowing, intelligent, and voluntary.  State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991).  Regarding waiver, Minn. R. Crim. P. 26.01, subd. 1(2)(a), states:

The defendant, with the approval of the court may waive jury trial provided the defendant does so personally in writing or orally upon the record in open court, after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel.


This rule is construed strictly.  State v. Ulland, 357 N.W.2d 346, 347 (Minn. App. 1984).

            In concluding that a purported waiver was ineffective, we have said, “[E]ven . . . where the appellant was present when his attorney purported to waive a jury trial, the [district] court should have addressed the appellant directly to make sure that he concurred in the waiver.”  State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986).  Similarly, jury waivers by correspondence from defendant’s counsel are ineffective.  State v. Balduc, 514 N.W.2d 607, 611 (Minn. App. 1994).

            Here, appellant was never explicitly asked whether he consented to waive his right to a jury trial.  Substantial compliance is not enough.  See Ulland, 357 N.W.2d at 347.  Thus, respondent’s argument that the district court substantially complied, that this was not an important issue to appellant, and that appellant knew what was happening, is irrelevant. Appellant must personally and explicitly waive his right to a jury trial.  Because the district court did not strictly comply with Minn. R. Crim. P. 26.01, subd. 1(2)(a), appellant’s conviction is reversed and the matter remanded for a new trial or for appellant to personally and explicitly waive his right to a jury trial in accordance with the procedure set forth in Minnesota Rule of Criminal Procedure 26.01, subd. 1(2)(a).

            Affirmed in part, reversed in part, and remanded.