This opinion will be unpublished and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
State of Minnesota,
David Paul Babcock,
Affirmed; motion denied
Washington County District Court
File No. K3044150
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Margaret M. Murphy, Assistant Stillwater City Attorney, Magnuson Law Firm, Suite 202 333 North Main Street, Stillwater, MN 55082 (for respondent)
Steven J. Meshbesher, Meshbesher & Associates, P.A., 225
Lumber Exchange Building,
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*
Appellant challenges his conviction of third-degree DWI, arguing that the district court erred in concluding that Minn. Stat. § 169.69 regarding mufflers is not unconstitutionally vague. Appellant also asserts that the district court erred in concluding that there was reasonable suspicion to stop him for violating the statute. Because the statute clearly applies to appellant’s conduct as found by the district court, and the district court’s findings are not clearly erroneous, we affirm.
State Troopers Jay Swanson and Curt Thurmes stopped appellant David Paul Babcock for a suspected violation of Minn. Stat. § 169.69 (2004), which governs mufflers and noise emitted by motor vehicles. As a result of the stop, Trooper Thurmes determined that Babcock was driving while intoxicated, and he was charged accordingly.
Babcock moved to suppress evidence of his intoxication, arguing that Minn. Stat. § 169.69 is unconstitutionally vague and that there was no reasonable suspicion for the stop. At the omnibus hearing, both Swanson and Thurmes testified. Swanson testified that he heard Babcock’s motorcycle before he saw it, and he “heard a very loud motorcycle with exhaust that was popping and crackling and not blending the exhaust noise into the overall vehicle noise.” Swanson testified that Babcock’s motorcycle was so loud that Swanson initially did not think the motorcycle had a muffler. Thurmes testified that the noise from Babcock’s motorcycle was a “loud popping, cracking, or . . . barking type of noise” and that it was an “extremely loud sharp noise.” The officers were cross-examined on the fact that Thurmes’s written report of the incident stated only “loud exhaust” under his initial observation, and nothing was used to measure the sound of the motorcycle. On redirect, Thurmes testified that he wrote “loud exhaust” because “that’s what the statute states, ‘loud exhaust.’ The speed statute says ‘speed’ and there’s very many different ways you can measure the speed, but you write ‘speed.’”
Mark Wang, a motorcycle mechanic, testified that he worked on Babcock’s motorcycle, including the exhaust system, in February 2003, and after the repairs, the muffler was in good working condition. Mark Young, a friend of Babcock who is familiar with Babcock’s motorcycle, testified that he picked up Babcock’s motorcycle from Wang’s shop, that he saw Babcock’s motorcycle a few days prior to the day Babcock was stopped, and that the exhaust system sounded the same as when he picked it up at Wang’s shop. State Trooper Scott Rudeen testified that he ticketed Babcock for speeding approximately three months before Babcock was stopped by Swanson and Thurmes but did not ticket him for a loud muffler at that time. Babcock testified that the exhaust and muffler systems on his motorcycle were in “exceptionally good working order” on the day of the stop and were not making a popping or cracking sound. He testified that he has never received a citation for loud exhaust on his motorcycle and that Trooper Rudeen had not said that it was loud when Rudeen stopped him for speeding.
The district court determined Swanson’s and Thurmes’s testimony was credible and that Babcock’s witnesses were not persuasive because none of them had personal knowledge of the noise Babcock’s motorcycle emitted on the day of the stop. Based on the troopers’ testimony, the district court found that Babcock’s motorcycle “was emitting sharp popping, crackling and/or barking sounds and that the motorcycle’s exhaust noise was distinct from, and not blended into, the overall noise of the motorcycle’s operation.” The district court concluded that “the officers had a reasonable and articulable belief that [Babcock] was operating his motorcycle in violation of M.S. 169.69 and that therefore the stop of his vehicle was legally permissible.” The district court also concluded that “a person of common knowledge, intelligence, and experience can easily determine when the noise from a muffler or exhaust system does not blend into the overall vehicle noise or produces a sharp popping or crackling sound” and that Babcock did not meet his burden of proving section 169.69 unconstitutional. The district court denied Babcock’s motion to suppress. Babcock stipulated to certain facts and submitted the case to the district court as a Lothenbach proceeding. The district court found Babcock guilty of third-degree DWI, and this appeal followed.
Babcock asserts that Minn. Stat. §
169.69 is unconstitutionally vague. A
defendant may not successfully challenge a statute as unconstitutionally vague
if the statute clearly applies to the defendant’s alleged conduct. State
v. Grube, 531 N.W.2d 484, 490 (
Every motor vehicle shall at all times be equipped with a muffler in good working order which blends the exhaust noise into the overall vehicle noise and is in constant operation to prevent excessive or unusual noise, and no person shall use a muffler cutout, bypass, or similar device upon a motor vehicle on a street or highway. The exhaust system shall not emit or produce a sharp popping or crackling sound.
Babcock asserts that the troopers
did not have reasonable suspicion to stop him for violating Minn. Stat. §
169.69. The legality of an investigative
stop and reasonable suspicion are questions of law subject to de novo
review. State v. Britton, 604 N.W.2d 84, 87 (
Generally, officers may conduct investigative stops so long
as they have a particularized and objective basis for suspecting criminal
activity. State v. Smallwood, 594 N.W.2d 144, 155 (
In this case, the district court
credited the testimony of Swanson and Thurmes and found that Babcock’s
motorcycle “was emitting sharp popping, crackling and/or barking sounds and that
the motorcycle’s exhaust noise was distinct from, and not blended into, the
overall noise of the motorcycle’s operation.”
This court shows great deference to a fact finder’s determinations of
witness credibility. State v. Dickerson, 481 N.W.2d 840, 843
This case is distinguishable from State v. Bender, 381 N.W.2d 896 (Minn.
App. 1986), cited by Babcock for the proposition that loud exhaust does not
justify a traffic stop. In Bender, the district court granted
Bender’s motion to suppress evidence that resulted from a stop based on “loud
Based on the findings in this case, Minn. Stat. § 169.69 was constitutionally applied to Babcock, and the district court did not err in determining that the troopers had reasonable suspicion to believe that Babcock was violating the statute. Because the statute does not lack specificity as to Babcock’s conduct, his argument that the language in the statute is unconstitutionally vague is without merit.
Babcock moved to strike portions of the state’s appellate brief, claiming that the state made arguments not raised in district court and asserted facts not in evidence. It is clear that the state’s brief is based on the record established at the hearing. The challenged portion is based on Wang’s testimony. Because the state’s brief is based on the record and does not raise new issues, Babcock’s motion to strike is denied.
Affirmed; motion denied.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Wang also testified that the type of motorcycle owned by Babcock is designed to make an irregular sound, a “fortissimo” sound that is louder than some other cycles, which draws some customers to this brand of motorcycle.