This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Mathew J. Reese,
Lyon County District Court
File No. K8-05-41
Lori Swanson, Attorney General, Stephanie Morgan, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Rick Maes, Lyon
County Attorney, Courthouse,
John M. Stuart, State Public Defender, Theodora Karin Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
Lathrop, Special Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction for second-degree controlled substance offense, appellant argues that (1) police, who stopped the car appellant was driving because there was an arrest warrant for its registered owner, did not have articulable suspicion to prolong the detention after learning that appellant was not the registered owner; and (2) the impoundment and inventory search of the vehicle was unlawful because there was no evidence of a standard department policy on towing vehicles or conducting inventory searches, and that the tow was pretextual. Because the impoundment and inventory search of the vehicle were unlawful, we reverse.
On January 14, 2005, Officer Jennifer Diamond
observed a white Jeep Grand Cherokee traveling on Highway 59 in
Officer Diamond approached the driver’s side of the
vehicle and asked the driver for his driver’s license and proof of
insurance. According to Officer Diamond,
she identified the driver as appellant Matthew Reese by his
While seated in the squad car, appellant explained that he had just purchased the vehicle and had not yet informed his insurance company of the purchase. Appellant then stated that he believed the vehicle was insured because he thought his insurance policy on another vehicle provided a grace period for insuring newly purchased vehicles. Officer Diamond replied that no grace period existed and a person “always [has] to contact [his] insurance” provider. Although appellant again attempted to explain that his insurance on his other vehicle would cover the newly purchased Jeep, Officer Diamond insisted that “[n]o, you need to contact your insurance company, let them know you are purchasing a vehicle, that’s how that goes.”
Based on the lack of insurance on appellant’s vehicle, Officer Diamond informed appellant that she would be issuing a citation for no insurance, and would have to have the vehicle towed. At that point, appellant replied that he was actually still in the process of purchasing the vehicle. Specifically, appellant stated that “I haven’t even signed the - - I mean, I haven’t even got the paperwork signed over yet, I just - -.” Officer Diamond then reminded appellant that he had claimed the vehicle was his. She also insisted that because it was uninsured, it was the department’s policy to tow the vehicle and to conduct an inventory search of it. Although appellant requested that he have a friend pick up the vehicle, Officer Diamond refused the request based on her claim that it was department policy to have uninsured vehicles towed.
Before towing the vehicle, an inventory search of the Jeep was conducted. During the search, officers found two marijuana pipes containing a small amount of marijuana, and two digital scales. Appellant admitted that the marijuana and drug paraphernalia were his. Officer Diamond wrote a citation for no insurance and possession of the marijuana. However, before appellant was released, Officer Diamond told appellant that she would hold onto the citations, rather than filing them with the police department, so he could consider becoming a drug informant for the police.
After the vehicle was towed, Officer Diamond applied for and received a search warrant to search the Jeep. Upon executing the search warrant, police discovered two rocks of methamphetamine in the vehicle, weighing a combined 15.4 grams. Appellant was subsequently charged with (1) controlled substance crime in the first degree, possession with intent to sell, (2) controlled substance crime in the second degree, (3) possession of marijuana in a motor vehicle, and (4) possession of drug paraphernalia.
On February 1, 2005, appellant moved to dismiss the charges and suppress the evidence seized. At the omnibus hearing, appellant testified that he initially told the officer that he was merely test-driving the Jeep, but that he was sure there was insurance on it. Conversely, Officer Diamond testified that she did not believe appellant’s statements that he did not own the car because she observed personal items in the Jeep, such as a box of CDs and clothing. Officer Diamond testified that she noticed that the Jeep was dirty and “she knew” that cars that are for sale do not leave the lot dirty. Officer Diamond further testified that the Jeep was towed because (1) the Jeep was uninsured; (2) appellant was acting nervous; (3) marijuana was found in the Jeep; and (4) the vehicle was a traffic hazard parked at the gas station.
Lyon County Sheriff’s Deputy Dan Louwagie, a drug task
force agent, testified at the hearing.
Deputy Louwagie testified that he was aware of information provided by a
confidential reliable informant (CRI) that on January 14, 2005, a white Jeep
Cherokee would be traveling to
On March 21, 2005, the district court denied appellant’s motion to suppress evidence and dismiss the charges against him. The district court found that the information from the CRI gave Officer Diamond probable cause to believe that the vehicle contained evidence of a crime. The court found that because there was probable cause to believe the vehicle contained evidence of a crime, the towing and inventory search of the Jeep were legal pursuant to Minn. Stat. § 169.041, subd. 4(11) (2004).
On September 2, 2005, appellant filed a motion (1) for a ruling on the reliability of the CRI; (2) for reconsideration of the omnibus order finding probable cause to search the car; and (3) for an order to reveal the identity of the CRI. At a hearing on the matter, Deputy Louwagie testified that the timing of the stop was consistent with the time indicated by the CRI. Deputy Louwagie also testified that the CRI had given information approximately six times in the past, and that the information was always reliable. Based on Deputy Louwagie’s testimony, the district court issued an order finding that the CRI was reliable and could be used to establish probable cause to search the vehicle. The district court also denied appellant’s motion to reconsider the March 21, 2005 order, and denied appellant’s motion to reveal the identity of the CRI.
Appellant waived a jury trial, and the case was submitted to the court on stipulated facts on November 15, 2005, pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty of the four counts alleged in the complaint. The court entered a judgment of conviction for controlled substance crime in the second degree and dismissed the other three counts against appellant. This appeal followed.
D E C I S I O N
reviewing pretrial orders on motions to suppress evidence, [an appellate court]
may independently review the facts and determine, as a matter of law, whether
the district court erred in suppressing-or not suppressing-the evidence.” State v. Harris, 590 N.W.2d 90, 98 (
I. Expansion of the stop
Appellant argues that the district
court erred in denying his motion to suppress because Officer Diamond
unlawfully expanded the scope of the stop.
The general rule is that a detention following a lawful stop “may
not continue indefinitely but only as long as reasonably necessary to
effectuate the purpose of the stop.” State
v. Blacksten, 507 N.W.2d
842, 846 (
Appellant concedes that the initial stop was lawful, but argues that Officer Diamond unlawfully expanded the scope of the stop by asking for proof of insurance. Appellant claims that because Officer Diamond stuck to her story that the sole basis for stopping the vehicle was that the registered owner had an active warrant for his arrest, the detention should have ended when Officer Diamond determined that appellant was not Wahl.
position has support. In State v. Hickman, an officer
stopped a car because he suspected it was not registered. 491 N.W.2d 673, 674 (Minn. App. 1992), review
denied (Minn. Dec. 15, 1992). Upon
approaching the vehicle, however, the officer confirmed there was a valid
temporary permit in the rear window.
The record reflects that Officer Diamond stopped the Jeep when she learned that the registered owner of the vehicle had an outstanding arrest warrant and because appellant fit the general description of the registered owner. When Officer Diamond approached the vehicle, she requested appellant’s driver’s license and proof of insurance. Appellant handed the officer his driver’s license and Officer Diamond confirmed that appellant was not the registered owner of the vehicle. At that point, Officer Diamond had effectuated the purpose of the stop and, absent any reasonable suspicion of criminal activity, the detention should have ceased. See id., 491 N.W.2d 675.
Officer Diamond determined that appellant was not the registered owner of the
Jeep, since she had asked appellant for proof of insurance, along with his
driver’s license, appellant made a comment about the insurance on the
vehicle. Specifically, appellant stated
“as far as the insurance, I just got this (inaudible) I just got it over
(inaudible).” Although Officer Diamond
had determined that appellant was not the registered owner of the vehicle, the
video of the traffic stop indicates that the comment was made immediately after
Officer Diamond appeared to look at appellant’s driver’s license, perhaps not
giving her time to advise appellant that he was free to go. See
State v. Lopez, 631 N.W.2d 810, 813-14 (Minn. App. 2001) (recognizing that
it would be impractical to suggest that an officer just turn and immediately
leave the scene without explanation when the officer has effectuated the
purpose of the stop), review denied
(Minn. Sept. 25, 2001). Because the
comment was made before Officer Diamond could reasonably end the detention, and
because the comment provided the officer with reasonable suspicion that the
vehicle was uninsured, Officer Diamond, at this point, did not unlawfully
expand the scope of the stop. See State v. Syhavong, 661 N.W.2d 278, 282 (Minn. App.
2003) (stating that if the driver’s responses and the circumstances of the stop
give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions).
II. Impoundment and inventory search of the vehicle
that the district court erred by not suppressing the evidence because (1) law
enforcement had no legitimate reason to tow the car, rendering the impoundment
unlawful, and (2) the inventory search of the car was unconstitutional. The
whether an inventory search is reasonable, the threshold inquiry involves the
propriety of impounding the vehicle because the act of impoundment gives rise
to the need for and justification of the inventory search. State
v. Goodrich, 256 N.W.2d 506, 510 (
them to take custody of and responsibility for a vehicle due to
the incapacity or absence of the owner, driver, or any responsible
passenger.” Myles, 298
Appellant argues that the impoundment was illegal because the tow was purely pretextual and the police had no legitimate reason to tow the car. We agree. Officer Diamond impounded the vehicle on the basis that (1) the vehicle was uninsured; (2) the Jeep presented a traffic hazard where parked; and (3) the Marshall Police Department’s policy mandated that uninsured vehicles must be impounded. We conclude differently. The evidence in the record supports appellant’s assertion that law enforcement “just wanted inside the car.”
Minn. Stat. §
169.791, subd. 2 (2004), provides that “[e]very driver shall have in possession
at all times when operating a vehicle and shall produce on demand of a peace
officer proof of insurance in force at the time of the demand covering the
vehicle being operated.” Under the statute, the consequence for failing to produce the
required proof of insurance is minimal.
It consists of a citation which shall be dismissed if the proof is
provided before the first court appearance.
The record reflects that after appellant was stopped, he attempted to explain to Officer Diamond that he had just purchased the vehicle and that he had not yet contacted his insurance provider. Appellant told Officer Diamond that it was his understanding that the vehicle was insured because his insurance policy on another vehicle contained a provision stating that newly purchased vehicles are covered under a previous policy so long as the insured notifies the insurer within a 20-day grace period. Officer Diamond refused to consider appellant’s explanation and insisted that the car was uninsured because there is no grace period.
Appellant did provide a valid excuse for the lack of insurance documents. Most insurance companies provide some grace period (10/14/30 days) for notifying an agent that an insured has just purchased an “after-acquired vehicle.” If he already has insurance with that company, he gets a small window to report another vehicle and during that small window he has, in effect, binder insurance.
Here, the issuance to appellant of a citation was in line with the statute, but not the immediate towing of the vehicle. What we find troubling is the officer’s refusal to consider appellant’s explanation regarding the insurance situation and her insistence that because the vehicle is uninsured, it must be impounded. Generally, if an officer conducts a traffic stop, and the individual fails to produce proof of insurance, the officer will simply issue a citation and tell the driver to appear in court with proof of insurance and the citation will be dismissed. The driver is then generally free to go. Here, appellant was issued a citation for lack of insurance, and his vehicle was promptly impounded. The fact that the law is applied unevenly in this situation supports appellant’s assertion that the impoundment was pretextual.
Officer Diamond’s claim that the vehicle needed to be towed because it “presented a traffic hazard” is not supported by the record. The videotape from the squad car’s video camera shows the Jeep parked against the curb, away from the gas pumps. The video indicates that the Jeep did not impede traffic flowing in and out of the gas station parking lot. In fact, the video shows at least one vehicle easily passing the stopped squad car and Jeep. The record is clear that appellant offered to have a friend pick up the vehicle. This arrangement would have been reasonable and supports a determination that the impoundment was unlawful. See Goodrich, 256 N.W.2d at 511 (stating that if an arrestee arranges for alternative means of safeguarding the property located in his vehicle, impoundment of the vehicle is not necessary, and, therefore, unreasonable).
Most important is
Officer Diamond’s naked statement that it was the department’s policy to tow
all uninsured vehicles. The state failed
to provide any documents setting forth the police department’s policy on towing
vehicles. See State v. Ture,
632 N.W.2d 621, 627 (
Adding to the overall picture of a pretextual tow, impoundment, and search is Officer Diamond’s statement, “right out of the box” to appellant that he could have his citations “vest pocketed” if he would become a confidential informant. There is no other reasonable explanation for that offer by the officer, right there on the street at the point of the stop, as opposed to later at the police station where appellant could have exercised his option to call an attorney, except that Officer Diamond, fully cognizant of the CRI tip, just did not want to let go of appellant’s vehicle after ascertaining that appellant was not the subject of the arrest warrant for the registered owner of the car was not appellant.
Based on the totality of the facts and the law, we conclude that the impoundment and later search were pretextual and unconstitutional.
contends that even if the impoundment and inventory search were
unconstitutional, the issue need not be reached because the search of the Jeep
was justified by probable cause under the automobile exception. The police may conduct a warrantless search
of an automobile when they have probable cause to believe that the vehicle
contains evidence of a crime or contraband.
State v. Search,
472 N.W.2d 850, 852 (
The state argues that although Officer Diamond may have subjectively believed that the search of the Jeep was conducted as an inventory search, her subjective understanding is irrelevant under the “objective theory of probable cause.” The Minnesota Supreme Court has held that:
Under the “objective theory” of probable cause which the United States Supreme Court has adopted, a search must be upheld, at least as a matter of federal constitutional law, if there was a valid ground for the search, even if the officers conducting the search based the search on the wrong ground or had an improper motive. . . . The same rule applies to police investigatory practices short of arrest or search.
State v. Pleas, 329 N.W.2d 329, 332 (
contends that under the totality of the circumstances, Officer Diamond’s
observations and knowledge provided probable cause to search the vehicle. We disagree.
The state relies on the following facts to support the assertion that
there was sufficient probable cause to conduct the search: (1) appellant’s nervous behavior and
conflicting stories regarding his ownership of the Jeep, (2) the fact that the
registered owner of the Jeep had an outstanding arrest warrant, and (3) the
information provided by the CRI that was corroborated by Officer Diamond’s
observations. As previously noted, law
enforcement sat on the CRI tip and made no attempt to volunteer it as part of
their justification for the initial stop, which they certainly knew they
could. Appellant’s nervousness and
demeanor when faced with questions from a law enforcement officer about a lack
of proof of insurance could be expected from any driver. The fact that Wahl, the vehicle’s registered owner,
not in the car, had an outstanding assault warrant carries no weight when
factoring it into the probable cause equation to search the vehicle. On
this record, we cannot conclude, examining the factors relied upon by the state, that there was independent probable cause to search the Jeep.
The district court’s denial of appellant’s motion to suppress is reversed.
 Appellant also argues
that the stop was unlawfully expanded because the officer asked for proof of
insurance even though the purpose of the stop was simply to identify the driver
of the vehicle as the registered owner.
We note that during a valid traffic stop, it generally is reasonable for
law enforcement to request a driver’s license and proof of insurance. See
State v. Schinzing, 342 N.W.2d 105, 109 (
 Appellant argues that
the state waived this argument because it was raised for the first time on
appeal. Ordinarily, appellate courts
will not consider arguments made for the first time on appeal.
 Appellant raised a number of issues in his pro se supplemental brief. Because we reverse appellant’s conviction, it is unnecessary to address those issues.