This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Valiant M. Green,
Hennepin County District Court
File No. 04022879
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
Jay M. Heffern, Minneapolis City Attorney, Judd Gushwa, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)
Leonardo Castro, Fourth District Public Defender, Paul J. Maravigli, Assistant Public Defender, 317 Second Avenue South, #200, Minneapolis, MN 55401 (for appellant)
Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction for misdemeanor driving after cancellation, giving false information to police, and having no proof of insurance, appellant argues that the statute prohibiting the suspension of objects between the driver and the windshield: (a) is unconstitutionally overbroad, (b) violates equal protection because it allows police to suspend objects in the same locations, and (c) produces an absurd result. We affirm.
On April 7, 2004, at approximately 8:10 a.m.,
Officer Hatle of the Minneapolis Police Department observed a 1993 Chevrolet
Cavalier proceeding northbound on
Appellant was charged with providing false information to police, driving after cancellation of his driver’s license, and failure to provide proof of insurance. Appellant subsequently moved to suppress the evidence obtained as a result of the stop on the basis that Minn. Stat. § 169.71, subd. 1, which was the sole basis for the traffic stop, is unconstitutional. The district court denied the motion and, following a trial on stipulated facts, found appellant guilty of the charged offenses. This appeal followed.
D E C I S I O N
constitutionality of a statute presents a question of law, which this court
reviews de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App.
1998), review denied (Minn. Feb. 24, 1999).
Appellant argues that Minn. Stat. § 169.71, subd. 1 (2004), is unconstitutionally overbroad. This statute provides:
No person shall drive or operate any motor vehicle with a windshield cracked or discolored to the extent to limit or obstruct proper vision, or, except for law enforcement vehicles, 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.
Overbroad restrictions of expression
Before a facial
overbreadth challenge can be addressed, it must first be determined whether the
statute in question implicates the First Amendment. Machholz,
574 N.W.2d at 419. If the First
Amendment is not implicated, no further inquiry is necessary because no
constitutional question is raised.
Appellant contends that hanging the pine tree
air-freshener from his rearview mirror is constitutionally protected speech
because “[h]is clear display of a pine tree air freshener serves as a statement
to the public about both the aromatic quality of his vehicle’s interior, and an
aesthetic expression of his appreciation for nature.” Although hanging an air-freshener is not a
spoken communication, First Amendment protection is not limited to the written
or spoken word; it extends to some expressive activity where the activity
itself may be communicative. See Spence
v. Washington, 418
Court has stated: “We cannot accept the
view that an apparently limitless variety of conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to express an
If appellant was intending to convey a particularized message by hanging the pine tree air-freshener from his rearview mirror, it is unlikely that anyone who viewed the air-freshener would understand appellant’s claimed message; that he “appreciates nature and cares about the aroma of his vehicle’s interior.” The First Amendment is not implicated; no further inquiry is necessary.
Protection Clause of the Fourteenth Amendment provides, in relevant part, “No
[s]tate shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const.
amend. XIV, § 1. Article I, Section 2,
of the Minnesota Constitution provides, “[n]o member of this [s]tate shall be
disenfranchised, or deprived of any of the rights or privileges secured to any
citizen thereof, unless by the law of the land, or the judgment of his
peers.” While all similarly situated
persons shall be treated alike, “only invidious discrimination is deemed
constitutionally offensive.” Scott v.
Minneapolis Police Relief Ass’n,
615 N.W.2d 66, 74 (
Fundamental rights are those “deeply rooted in this Nation’s history and tradition.” Moore v. City of E. Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938 (1977); see, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394 (1982) (right to familial relations fundamental); Zablocki v. Redhail, 434 U.S. 374, 383-84, 98 S. Ct. 673, 679-80 (1978) (right to marry fundamental); Reynolds v. Sims, 377 U.S. 533, 559-60, 84 S. Ct. 1362, 1380 (1964) (voting rights fundamental). Unless a constitutional challenge to the statute involves a suspect classification or a fundamental right, this court reviews the challenge using a rational-basis standard under both the state and federal constitutions, and the statute will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Scott, 615 N.W.2d at 74.
Here, Minn. Stat. § 169.71, subd. 1, does not
involve a fundamental right or a suspect classification. A rational basis scrutiny is applicable. The statute passes rational basis scrutiny. Law enforcement has additional tasks and
equipment that is used in the operation of their vehicles, and that includes
pieces of equipment that the normal motorist on the highway does not have. There is no discrimination, and the
distinctions are not arbitrary, but are based on bona fide employment
requirements. For instance, law
enforcement may carry their riot shotguns uncased. Other than law enforcement, the law requires
weapons inside a vehicle to be unloaded and cased. Minn. Stat. § 97B.045, subd. 1 (2004). Regardless of the strictness of a state’s
“permit to carry a pistol regulation,” law enforcement carries pistols and does
not have to apply for that right as other citizens do. See 2005
Appellant also argues that Minn. Stat. § 169.71, subd. 1, produces an “absurd result” because the statute provides an exception to its provisions for law enforcement vehicles. Appellant argues that a large object hanging from a law enforcement vehicle’s rearview mirror would certainly obstruct a law enforcement officer’s vision, yet they are allowed to drive with such an obstruction. Appellant asserts that the exception creates a “double standard” that ultimately conflicts with the statute’s purpose. This argument is simply a rehash of appellant’s argument in section II. Many law enforcement vehicles have equipment that is not used by the general public. The exception in Minn. Stat. § 169.71, subd. 1, for law enforcement is not arbitrary, passes the rational scrutiny test, and does not discriminate against non-law enforcement personnel.
do understand the following argument of appellant. Appellant argues that this court
should invalidate Minn. Stat. § 169.71, subd. 1, because a number of other
states have laws that prohibit suspended objects only if the driver’s view is
obstructed. See, e.g., Commonwealth v. Felty, 662 A.2d 1102, 1105 (Pa. Super.
1995) (stating that object must materially obstruct the driver’s view); People v. Mendoza, 599 N.E.2d 1375, 1383
App. 1992) (stating that object must obstruct driver’s vision); Snow v. State, 578 A.2d 816, 824 (Md.
App. 1990). Appellant is correct.
Having pointed out the underlying danger of pretextual stops, no criminal statute is unconstitutional on its face simply because it is construed strictly and narrowly. On these facts, the district court found no clear evidence of a pretextual stop. The court stated that: “In short, simply noting that he is black does not rise to the level of establishing a prima facie case of a pretextual traffic stop, absent some further allegation. [Appellant] offers none.” Appellant did not brief the issue of pretext on appeal, and merely alluded to “pretext” in passing in his rebuttal argument. On these facts, a finding of a “pretextual stop” was not warranted.