This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Tavo Ray Bowman,




Filed January 31, 2006


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, 332 Minnesota Street, Suite 1610 West, St. Paul, Minnesota 55101 (for appellant)


            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.



            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; Minn. Const. art. I, § 6.  “Minnesota has a long tradition of assuring the right to counsel.”  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 831 (Minn. 1991).  The right to counsel provides protection to the layperson who lacks the necessary skill and knowledge for self-representation.  Id. at 833.  We review de novo this issue of constitutional interpretation.  Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn. 2004). 

 Neither the United States nor the Minnesota Constitution has been interpreted to establish a right to advisory counsel when a defendant exercises the right to self-representation.  State v. Clark, 698 N.W.2d 173, 179-80 (Minn. App. 2005), review granted (Minn. Sept. 20, 2005).  Consistent with these interpretations, the Minnesota Supreme Court, in its promulgated rules, has provided only for the discretionary appointment of advisory counsel.  Minn. R. Crim. P. 5.02, subd. 2 (stating that court “may” appoint advisory counsel).  Even if the court exercises its discretion to appoint advisory counsel, it may not appoint public defenders in that capacity.  Minn. Stat. § 611.26, subd. 6 (2004) (stating that public defenders “must not serve as advisory counsel”).

            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.


            Appellant 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 (Minn. 1997).

            A criminal defendant has a constitutional right to “assistance of counsel for his own defense.”  State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970).  A criminal defendant may, however, knowingly and intelligently waive his right to representation.  Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975).  A trial court should comprehensively examine the defendant about the “defendant’s comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant’s understanding of the consequences of the waiver,” in order to determine whether a waiver is made knowingly, intelligently and voluntarily.  Camacho, 561 N.W.2d at 173 (citation omitted).  The surrounding circumstances may indicate an intelligent waiver of the right to counsel even without detailed on-the-record court inquiry.  State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998).  The validity of the waiver depends “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”  Id. at 275 (citation omitted). 

            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.  Minn. R. Crim. P. 31.01 provides that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”  Because the trial court obtained a valid, oral on-the-record waiver on multiple occasions and explained to appellant his rights of representation, failure to obtain a written waiver was not reversible error.


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 (Minn. 2002).

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.”


State v. Johnson, 257 N.W.2d 308, 309 (Minn. 1977).

            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.