This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
Gregory Allan Wegner,
Martin County District Court
File No. K902232
Elizabeth W. Bloomquist, Fairmont City Attorney, P.O. Box 751, 100 Downtown Plaza, Fairmont, MN 56031 (for respondent)
Max A. Keller, Pierce & Keller, 616 Second Street, Jackson, MN 56143 (for appellant)
Considered and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, Judge.
In this appeal from a conviction of gross-misdemeanor driving while impaired, appellant argues that the police stop of his car was illegal because (1) the officers who made the stop knew that the registered owner of the vehicle had a no-alcohol license restriction but did not have articulable suspicion to believe that appellant as the driver had such a restriction; and (2) the officer’s testimony that he saw an object hanging from the rear-view mirror, when the officer was several car lengths away, was not credible. Appellant also argues that (1) the state should be estopped from enforcing the restriction against suspending objects from the rear-view mirror because another statute allows handicapped-license placards to be hung from the rear-view mirror; and (2) he did not receive effective assistance of counsel. We affirm.
At about 5:20 p.m. on April 6, 2002, while on routine patrol, Fairmont Police Officer Thomas Gray saw two people near a bar. They stopped and stared at Gray as he drove by, which Gray thought was somewhat unusual. Gray did not recognize either of them. Gray watched the two walk toward a white Chevrolet Blazer. Earlier that day, Gray had randomly run a license-plate check on the Blazer and learned that the registered owner had a no-use-of-alcohol-or-drugs license restriction.
After driving around the block, Gray noticed that the Blazer was gone. He then saw it stopped at a nearby stop sign. Gray testified:
I got right behind [the Blazer] and I noticed it had an air freshener hanging from the rearview mirror that was fairly larger than the normal standard size one. I followed it a little ways to see if there was any driving conduct. They were driving so slow that there was no conduct at the time.
Q: Now, in your experience and as part of your knowledge as a Police Officer, is an air freshener hanging from the rear-view mirror, is that a violation of the Traffic Code?
A: Yes, it is an obstruction. Having something hanging from the rear-view mirror means it obstructs the vision of the full view of the driver of the windshield.
It was light outside when Gray was following the Blazer.
Gray stopped the Blazer. When appellant, who was driving, rolled down the window, Gray smelled a faint odor of alcohol. Gray asked appellant for identification and observed that appellant appeared to be fumbling for his wallet, having difficulty finding his identification. Gray also observed that appellant’s eyes were bloodshot. Gray administered a preliminary breath test (PBT) and field sobriety tests. Appellant failed the PBT and performed poorly on the field sobriety tests, and Gray arrested him for driving while impaired.
At the law enforcement center, Gray read appellant the implied-consent advisory. After consulting with an attorney, appellant refused to submit to implied-consent testing.
Appellant was charged by complaint with gross-misdemeanor driving while impaired in violation of Minn. Stat. §§ 169A.20, subd. 1(1) (2000), 169A.25 (Supp. 2001); gross-misdemeanor refusal to test in violation of Minn. Stat. §§ 169A.20, subd. 2 (2000), 169A.25 (Supp. 2001); violating a restricted driver’s license in violation of Minn. Stat. § 171.09 (Supp. 2001); and driving with an object suspended between the driver and the windshield in violation of Minn. Stat. § 169.71, subd. 1 (2000).
Appellant filed a motion to suppress the evidence discovered as a result of the stop and to dismiss the charges against him. At the contested omnibus hearing, appellant’s counsel indicated that the only issue being challenged was the lawfulness of the stop. The district court denied appellant’s motion. The court found that Gray stopped the Blazer because he saw the air freshener hanging from the rear-view mirror. The district court concluded that the air freshener hanging from the rear-view mirror violated Minn. Stat. § 169.71, subd. 1 (2000), and, therefore, provided a valid, objective basis for the stop.
The charge of violating Minn. Stat. § 169.71 was submitted to the district court, which found appellant guilty. The remaining counts were tried to a jury, which found appellant guilty as charged.
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 (Minn. App. 1997). The lawfulness of an investigatory stop is “purely a legal determination on given facts.” Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). This court reviews de novo the question of reasonable suspicion for a limited investigatory stop. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). This court reviews “findings of fact for clear error, giving due weight to the inferences drawn from those facts by the district court.” Id. (quotation omitted). See also State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998) (appellate court reviews the district court’s findings of historical fact under the clearly erroneous standard but reviews de novo the determination of reasonable suspicion).
A police officer may make an investigative stop of a motor vehicle if the officer has a specific and articulable basis to suspect that the driver has violated a traffic law. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Even a minor traffic violation may serve as a basis for a stop. State v. Wagner, 637 N.W.2d 330, 335-36 (Minn. App. 2001).
No person shall drive or operate any motor vehicle . . . with any objects suspended between the driver and the windshield, other than sun visors and rear vision mirrors, or with any sign, poster, or other nontransparent material upon the front windshield, sidewings, side or rear windows of such vehicle, other than a certificate or other paper required to be so displayed by law, or authorized by the state director of the division of emergency management, or the commissioner of public safety.
Minn. Stat. § 169.71, subd. 1 (2000).
In Gerding v. Comm’r of Pub. Safety, this court determined that Minn. Stat. § 169.71, subd. 1, “prohibits all suspended objects not covered by the specific exceptions.” 628 N.W.2d 197, 200 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). The Gerding court held that a police officer’s observation of an object suspended from a rear-view mirror in violation of Minn. Stat. § 169.71, subd. 1, justified a stop of the vehicle. Id. at 200-01.
Appellant does not dispute that the air freshener hanging from his rear-view mirror violated Minn. Stat. § 169.71, subd. 1. Rather, he argues that Gray’s testimony that he saw the air freshener before initiating the stop was incredible. Appellant argues that the fact that Gray issued a citation citing him for violating Minn. Stat. § 169.37 (2000), which prohibits a person from driving a vehicle with too many objects or persons in the vehicle so as to obstruct the driver’s vision, undercuts the credibility of Gray’s testimony that he saw the air freshener before initiating the stop. Appellant also disputes Gray’s testimony that the air freshener was an obstruction. Neither of these factors makes Gray’s testimony that he saw the air freshener before initiating the stop incredible as a matter of law.
Appellant also argues that it was impossible for Gray to have seen the air freshener from several car lengths away. But Gray did not testify that he saw the air freshener from several car lengths away. He testified that he saw the Blazer at the stop sign, got right behind it, and saw the air freshener.
Credibility determinations are solely the fact-finder’s responsibility. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). The district court had the opportunity to hear Gray’s testimony and to consider appellant’s arguments regarding credibility. The evidence in the record supports the district court’s finding that Gray stopped the Blazer because he saw the air freshener.
Appellant argues that the state should be estopped from enforcing the restriction against suspending objects from the rear-view mirror because it conflicts with Minn. Stat. § 169.345, subd. 1 (2000), which allows handicapped-license placards to be hung from the rear-view mirror. The statute provides:
(a) A vehicle that prominently displays the certificate authorized by this section or that bears license plates issued under section 168.021, may be parked by or solely for the benefit of a physically disabled person:
(1) in a designated parking space for disabled persons, as provided in section 169.346;
(2) in a metered parking space without obligation to pay the meter fee and without time restrictions unless time restrictions are separately posted on official signs; and
(3) without time restrictions in a nonmetered space where parking is otherwise allowed for passenger vehicles but restricted to a maximum period of time and which does not specifically prohibit the exercise of disabled parking privileges in that space.
A person may park a vehicle for a physically disabled person in a parking space described in clause (1) or (2) only when actually transporting the physically disabled person for the sole benefit of that person and when the parking space is within a reasonable distance from the drop-off point.
(b) For purposes of this subdivision, a certificate is prominently displayed if it is displayed so that it may be viewed from the front and rear of the vehicle by hanging it from the rearview mirror attached to the front windshield of the vehicle. If there is no rearview mirror or if the certificate holder’s disability precludes placing the certificate on the mirror, the placard must be displayed on the dashboard on the driver’s side of the vehicle. No part of the certificate may be obscured.
Minn. Stat. § 169.345, subd. 1. The statute applies to parked vehicles. Thus, as the state argues, it does not conflict with the prohibition against driving or operating a vehicle with an object suspended from the rear-view mirror.
“Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (noting that postconviction hearings provide reviewing courts with “additional facts to explain the attorney’s decisions,” enabling the courts to properly consider whether attorney’s performance was deficient). But when additional development of the record is not required to assess an ineffective-assistance claim, an appellate court will review it on direct appeal. Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997).
Appellant argues that his trial counsel was ineffective in failing to (1) review the videotape of the stop and field sobriety tests before the omnibus hearing; (2) investigate whether a recording of the reading of the implied-consent advisory existed; (3) raise the issue of whether the time allowed appellant to contact an attorney was sufficient to vindicate his limited right to counsel; and (4) object to Gray’s testimony that appellant refused testing after consulting with an attorney as beyond the scope of the omnibus hearing.
Appellant cites no facts in the record supporting his first two claims of ineffective assistance. Regarding the third claim, the issue was not presented to the district court, and the record does not show that as a matter of law appellant’s limited right to counsel was not vindicated. Regarding the fourth claim, to prevail on an ineffective-assistance claim, appellant must show that his counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result of the deficient performance. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).
Because additional development of the record is necessary to evaluate appellant’s ineffective-assistance claims, we decline to address the claims. See Gustafson, 610 N.W.2d at 321 (declining to address ineffective-assistance claim when record did not contain facts explaining attorney’s decisions and any conclusions on the effectiveness of counsel’s performance would be speculative).
In his brief, appellant argues that the stop was illegal because the officer who made the stop knew that the Blazer’s registered owner had a no-alcohol license restriction but did not have articulable suspicion to believe that appellant had such a restriction. The district court did not conclude that the stop was justified on that basis. Therefore, we do not address appellant’s argument.