This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota, Lake Minnetonka

Conservation District,





Daniel Jonathan McCloud,



Filed May 11, 2004


Peterson, Judge


Hennepin County District Court

File No. 03028752


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Steven M. Tallen, Tallen & Baertschi, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellant)


Samuel A. McCloud, Carson J. Heefner, Richard P. Ohlenberg, McCloud & Boedigheimer, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN  55379 (for respondent)


            Considered and decided by Toussaint, Presiding Judge; Peterson, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


In this appeal from a pretrial order suppressing evidence discovered during a search of a boat and dismissing charges relating to operation of the boat, appellant State of Minnesota argues that the district court erred in ruling that water patrol officers, who observed an alleged failure-to-yield-right-of-way violation by respondent Daniel Jonathan McCloud’s boat, did not have authority to request a showing that the boat’s equipment was in compliance with the law.   The state argues that because the officers had probable cause to arrest respondent, the search of the boat was a lawful search incident to arrest.  We affirm.


            Hennepin County Sheriff’s Deputy Richard J. Waldon was performing water patrol on Lake Minnetonka with Minnesota Conservation Officer Jim Konrad.  It appeared to the officers that a boat approaching the patrol boat was going to collide with the patrol boat.  Waldon testified that the patrol boat had the right of way, but he had to shift the boat into neutral to avoid a collision.  Waldon estimated that the boats came within 40 to 50 feet of colliding.

            After going by the patrol boat, the other boat docked at a marina, where the driver, later identified as respondent, got off of the boat and began walking away.  Waldon activated the patrol boat’s siren and emergency lights.  The person who had been the passenger in the other boat took over driving and began heading back onto the lake.  Konrad yelled at respondent to come back, and Waldon yelled and motioned for the boat to return to the dock.  Respondent and the other person, later identified as David Stuntbeck, complied with the officers’ directions.

            The search of the boat consisted of a safety check, Waldon asking Stuntbeck to produce a fire extinguisher, life jackets, and a throwable personal flotation device.  As a result of the search, respondent was cited for the misdemeanor offenses of operating a boat without a fire extinguisher and operating a boat without a throwable personal-flotation device.  A complaint later was filed charging respondent with four misdemeanor offenses:  (1) careless operation of a watercraft; (2) violating rules of the road; (3) operating a boat without a fire extinguisher; and (4) operating a boat without a throwable personal flotation device.

            Respondent moved to suppress the evidence discovered during the search of the boat.  The district court concluded that although the stop of the boat was valid, the search was invalid because

there was no arrest, no suspicion of criminal activity afoot otherwise justifying a search, and just because, in retrospect, the deputy could have made an arrest for a moving violation, the fact is that the deputies did not make such an arrest.  And even had they done so, there wouldn’t have been any reason for a custodial arrest.


Based on the district court’s conclusion that the search of the boat was unconstitutional and on the state’s agreement to dismiss the remaining charges if the search of the boat was found to be unconstitutional, the district court granted respondent’s suppression motion and dismissed all charges against him.  This appeal followed.


            A reviewing court will reverse a pretrial decision of the trial court suppressing evidence only if the prosecution “demonstrates clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (quotation omitted).  “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.”  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).

            As a result of the district court’s grant of respondent’s suppression motion, all of the charges against respondent were dismissed.  Respondent does not dispute that the suppression order had a critical impact on the case.  See State v. Varnado, 582 N.W.2d 886, 889 n.1 (Minn. 1998) (stating that critical-impact test is satisfied when complaint is dismissed).

            The Fourth Amendment to the United States Constitution and article I of the Minnesota Constitution prohibit unreasonable searches and seizures.  U.S. Const. amend.  IV; Minn. Const. art. I, § 10.  Warrantless searches and seizures are per se unreasonable unless permitted by one of a limited number of exceptions.  Othoudt, 482 N.W.2d at 221-22 (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)).  One of those exceptions is a search incident to a lawful arrest.  State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000).  Under the exclusionary rule, evidence recovered during an unlawful search is inadmissible at trial.  State v. Martinez, 579 N.W.2d 144, 148 (Minn. App. 1998), review denied (Minn. Jul. 16, 1998).

The state argues that the safety inspection of the boat was a search incident to a lawful arrest.  The search-incident-to-a-lawful-arrest exception applies only when the “crime for which there is probable cause to arrest [is] a crime for which a custodial arrest is authorized.”  Varnado, 582 N.W.2d at 892.  The Minnesota Rules of Criminal Procedure permit a custodial arrest for misdemeanors only under specified circumstances.  Id.  The rules provide:

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.


Minn. R. Crim. P. 6.01, subd. 1(1)(a) (emphasis added.)

In Varnado, the officer had probable cause to arrest the defendant only for a misdemeanor offense and the record contained no facts supporting a belief that a custodial arrest was necessary to prevent the defendant from hurting someone or to ensure that she would respond to a citation.  Varnado, 582 N.W.2d at 892-93.  The supreme court held that because there was no valid basis for a custodial arrest at the time the officer initiated the search, a frisk of the defendant was not valid as a search incident to arrest.  Id. at 893.

Here, as in Varnado, the officers had probable cause to arrest respondent for only misdemeanor offenses, and the record contains no evidence that would support a finding that a custodial arrest was permissible under Minn. R. Crim. P. 6.01, subd. 1(1)(a).  Accordingly, the search of respondent’s boat was not valid as a search incident to arrest.  The state has not shown clearly and unequivocally that the district court erred in granting respondent’s suppression motion and dismissing the charges against him.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.