This opinion will be unpublished and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
Tavo Ray Bowman,
Toussaint, Chief Judge
Faribault County District Court
File No. K5-04-150
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Brian D. Roverud, Faribault County Attorney, 412 North Main, Post Office Box 5, Blue Earth, Minnesota 56013 (for respondent)
John M. Stuart,
State Public Defender, Michael C. Davis, Special Assistant Public Defender,
Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On appeal from his conviction of fifth-degree possession of controlled substance offense, Tavo Ray Bowman argues that the trial court violated his state constitutional right to assistance of counsel by failing to appoint standby counsel for the omnibus hearing and erred in granting his request to represent himself without obtaining a knowing and intelligent waiver of his right to be represented by counsel and in denying his motion to suppress evidence based on a canine sniff of the outside of the car. Because we conclude the trial court did not violate appellant’s constitutional rights or err in its rulings, we affirm.
D E C I S I O N
Appellant argues that he was deprived of his state constitutional right to the assistance of counsel when the trial court failed to appoint standby or advisory counsel until after the omnibus hearing. Further, appellant argues that the trial court committed error by failing to exercise its discretion in appointing advisory counsel.
A criminal defendant has the right to
assistance of counsel in his or her defense.
U.S. Const. amend. VI;
Initially, appellant was represented by a court-appointed public defender. But at the rule 5 hearing, appellant dismissed his counsel in favor of self-representation. The trial court questioned appellant in order to clarify his desire to represent himself and explained that at any time appellant wished to have court-appointed representation, counsel would be assigned. Subsequently, on three separate occasions, appellant was informed of but waived his right to court-appointed counsel. He continued to request standby or advisory counsel, which was eventually appointed at the conclusion of the omnibus hearing. At the following hearing, the trial court asked appellant’s court-appointed advisory counsel whether there were any additional omnibus issues that he would like to raise. The trial court did not abuse its discretion because the record clearly indicates appellant’s desire not to have representation by the public defender and the court’s appointment of standby counsel, who was provided with an opportunity to raise omnibus issues.
argues that the trial court committed error by failing to comply with Minn. R.
Crim. P. 5.02, subd. 1(4). Specifically,
appellant argues that his waiver of counsel was not knowing, voluntary, and
intelligent because the trial court did not advise appellant of the required
information and obtain a written waiver.
A district court’s finding of a valid waiver of a defendant’s right to
counsel will be overturned only if that finding is clearly erroneous. State
v. Camacho, 561 N.W.2d 160, 168-69 (
criminal defendant has a constitutional right to “assistance of counsel for his
own defense.” State v. Fagerstrom, 286
The trial court properly found that appellant waived his right to an attorney. The court attempted on numerous occasions to provide appellant with counsel, but appellant repeatedly declined counsel in favor of self-representation. Further, the record provides no indication that appellant was denied a fair trial: at his initial rule 5 hearing, the court explained to appellant the charges against him, the penalty associated with the charges, his right to a court-appointed attorney at all stages of the proceedings, his other due process rights, and the availability of a continuance to talk with an attorney.
The trial court did not obtain a written waiver and did not make a record indicating that appellant refused to sign a written waiver. Minn. Stat. § 611.19 (2000) (stating that waiver “in all instances [shall] be made in writing [but] . . . if the defendant refuses to sign the written waiver, then the court shall make a record evidencing such refusal of counsel”). Therefore, the trial court erred in this procedural requirement.
A written waiver, however, is not
constitutionally required for a valid waiver.
Appellant argues that the trial court
erred in denying his motion to suppress evidence seized after a traffic
stop. He argues the police officer
lacked a reasonable suspicion of drug-related activity before proceeding with a
canine-sniff of the exterior of the car.
Law enforcement must have a “reasonable, articulable suspicion of
drug-related criminal activity” before conducting a canine-sniff around a
legitimately stopped vehicle. State v. Wiegand, 645 N.W.2d 125, 135 (
An actual violation of the Vehicle and Traffic Law need not be detectable. . . . All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant intrusion.”
v. Johnson, 257 N.W.2d
308, 309 (
Here, the officer, while on routine patrol, stopped appellant after observing him signal a turn but then proceed through the intersection with the turn signal still engaged. The officer checked the vehicle plates and learned they had recently been revoked for an alcohol violation and the registration tabs were expired. After this stop, the officer observed appellant’s nervous behavior and constricted eyes and smelled a strong scent of air freshener coming from the vehicle. Furthermore, officers who assisted with the stop were familiar with appellant and knew he was involved in methamphetamine use. Those facts, coupled with appellant’s statement to the officer that he was looking for an individual known to the officer to have been charged with controlled substance offenses, provided reasonable suspicion of drug-related activity.