This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,


Cole Marshall Quinnell,


Filed July 26, 2005


Wright, Judge



Rice County District Court

File No. K6-04-1519



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


G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant County Attorney, 218 Northwest Third Street, Faribault, MN  55021 (for appellant)


David J. Hvistendahl, Mary L. Hahn, Hvistendahl, Moersch & Dorsey, P.A., 311 South Water Street, P.O. Box 651, Northfield, MN  55057 (for respondent)



            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




In a prosecution for second-degree controlled-substance crime, the district court dismissed the charge for lack of probable cause.  On appeal, the state challenges the district court’s determination that the offense was not committed within one city block of a park and, thus, was not committed in a “park zone,” as defined by the statute.  We affirm.



As part of a sting operation on November 18, 2003, an informant told police that she had purchased approximately one-half gram of cocaine from respondent Cole Quinnell at a gas station in Northfield.  Based on this transaction, Quinnell was charged with one count of second-degree controlled-substance crime, in violation of Minn. Stat. § 152.022, subd. 1(6)(i) (2002), for the sale of cocaine in a park zone.  The complaint summarily asserted that the gas station “is located within one city block” of a park.  Quinnell moved to dismiss the charge for lack of probable cause, arguing, in relevant part, that the alleged sale did not occur within a park zone.

The streets and lots in the relevant area are not organized into square city blocks.  According to a map received in evidence at the omnibus hearing, the gas station is on a cul-de-sac that leads to an entrance to a park.  Between the gas station property and the park, the map displays another lot and an area of nonpark “green space.”  But there are no intervening roads.  The site of the alleged drug transaction was approximately 325 feet from the park entrance.

In its order dated February 8, 2005, the district court observed that “[t]he State is requesting the Court to ‘guess’ as to whether a sale was made within a city block or 300 feet of a Park . . . .  Without proof from a land surveyor or engineer, the State will be unable to establish Probable Cause . . . .”  Based on this observation, the district court granted Quinnell’s motion to dismiss for lack of probable cause.  This appeal followed.



The state can appeal from a dismissal for lack of probable cause only if the basis for the dismissal presents a question of law.  Minn. R. Crim. P. 28.04, subd. 1(1); State v. Linville, 598 N.W.2d 1, 2 (Minn. App. 1999).  As a threshold matter, Quinnell asserts that the dismissal is not appealable because it was exclusively based on the district court’s findings of fact.

            When a district court dismisses a charge solely on a factual determination that the state has not established probable cause, an appeal is precluded because the state may marshal further evidence and reinstate the prosecution.  Minn. R. Crim. P. 28.04, subd. 1(1)(a); State v. Duffy, 559 N.W.2d 109, 110 (Minn. App. 1997).  When the reason for dismissal may be cured with additional evidence, the dismissal is founded on issues of fact and is not subject to appeal. State v. Gerring, 418 N.W.2d 517, 519-20 (Minn. App. 1988).

            An appeal may be taken when a dismissal for lack of probable cause is based on a question of law because it is highly unlikely that a prosecuting authority could reinstate a case that had been dismissed solely on legal grounds.  Linville, 598 N.W.2d at 2; Duffy, 559 N.W.2d at 110.  When a district court’s assessment of probable cause is predicated on its statutory interpretation of the requisite elements of a criminal offense, statutory construction, or other forms of legal analysis, a question of law is presented for appeal.  State v. Tice, 686 N.W.2d 351, 353 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004); State v. Moe, 498 N.W.2d 755, 758 (Minn. App. 1993); State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991).

            Here, the district court found that, because the state did not present evidence on the parameters of a city block, it could not determine whether the offense occurred within a park zone.  The district court then noted that such proof could be supplied by a surveyor or engineer.  Implicit in the district court’s ruling is the notion that a “city block,” as set forth in the statute, may be defined through the presentation of evidence.  But no authority is cited stating that “city block” is a technical term definable by expert testimony.  And generally, the interpretation of statutory language presents a question of law subject to the court’s determination.  State v. Olson, 325 N.W.2d 13, 19 (Minn. 1982).  Thus, the definition of the statutory term “city block” presents a legal determination that is appropriate for consideration on appeal.

            The offense of second-degree controlled-substance crime includes the sale of certain quantities of illegal drugs in a park zone.  Minn. Stat. § 152.022, subd. 1(6) (2002).  “‘Park zone’ means an area designated as a public park [by certain government entities].  ‘Park zone’ includes the area within 300 feet or one city block, whichever distance is greater, of the park boundary.”  Minn. Stat. § 152.01, subd. 12a (2002).  The commission of a controlled-substance crime within a park zone operates as an aggravating element that heightens the degree of the offense.  Compare Minn. Stat. § 152.022, subd. 1(6) (providing that sale of “any amount” of narcotics or methamphetamine within a park zone is a second-degree controlled-substance crime), with Minn. Stat. § 152.023, subd. 1(1) (2002) (providing that sale of an unspecified amount of narcotics is a third-degree controlled-substance crime).

            We recently determined that the meaning of the term “one city block” is ambiguous.  State v. Estrella, ___ N.W.2d ___, ___, 2005 WL 1620395 at *3 (Minn. App. 2005).  We observed that, in the absence of a grid system of city blocks, reasonable limits on the size of a park zone must be established by statutory construction.  Id. at *4.  Applying the rule of lenity, we concluded that, “where no actual grid system is present, the term ‘one city block’ does not apply and, therefore, a drug transaction must take place within 300 feet of a park to come within the ambit of the ‘park zone’ statute.”  Id. at *5.

Here, the area of the park and the gas station is not part of a grid system of city blocks.  In the absence of such a system, the park zone extends only 300 feet from the park.  Because the evidence is undisputed that the location of the alleged sale is not within 300 feet of the park, the district court correctly concluded that the state failed to establish probable cause that the offense occurred in a park zone.  Quinnell’s motion to dismiss was properly granted by the district court.