This opinion will be unpublished and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
Wayne Allen Johnson,
Filed June 12, 2007
Kandiyohi County District Court
File No. CR-05-425
Lori Swanson, Attorney General, 1800
Boyd Beccue, Kandiyohi County Attorney, Stephen Wentzell, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)
John Stuart, State Public Defender, Davi E. Axelson,
Assistant Public Defender,
Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
On stipulated facts, following denial of a suppression motion, the district court found Wayne Johnson guilty of driving after cancellation as inimical to public safety. In this appeal from conviction and sentencing, Johnson challenges the constitutionality of a deputy sheriff’s investigatory stop. Because the deputy had a particularized and objective basis to believe that Johnson was violating a traffic law by exceeding the speed limit, we affirm.
F A C T S
Based on his experience in visually estimating the speed of moving vehicles and the results of “pacing” the car, the deputy estimated that the car was traveling at a rate exceeding 65 m.p.h. in a 55 m.p.h. zone. He turned on the squad’s emergency lights and stopped the car.
The deputy told the driver, Wayne Johnson, that he had paced Johnson’s car at 65 m.p.h. Johnson said that he did not believe that he had been driving that fast because his cruise control was set at 62 m.p.h. After checking the status of Johnson’s driving privileges, the deputy learned that Johnson’s license had been cancelled as inimical to public safety. The deputy issued Johnson a citation for driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2004), and speeding in violation of Minn. Stat. § 169.14, subd. 2(a)(3) (2004).
Following an omnibus hearing at which Johnson challenged the validity of the stop, the district court found that the deputy had a reasonable, articulable basis for believing that Johnson was exceeding the speed limit and denied his suppression motion. Johnson and the state submitted the driving-after-cancellation charge to the court on stipulated facts, and the state dismissed the speeding charge.
The district court found Johnson guilty of driving after cancellation, and Johnson appeals. He raises the single issue of whether the deputy had a legal basis to stop Johnson’s car in the absence of evidence that the squad’s speedometer was regularly and routinely tested for accuracy.
D E C I S I O N
The state and federal constitutions
protect against unreasonable searches and seizures. U.S. Const. amends. IV,
If the facts are undisputed, as they
are in this case, we review de novo the district court’s determination on the
constitutional validity of an investigatory stop. State
v. Burbach, 706 N.W.2d 484, 487 (
The district court found that the deputy had a reasonable, articulable basis for stopping Johnson’s car because of the deputy’s visual observation that Johnson was exceeding the speed limit and the confirmation of this observation by “pacing” Johnson’s car. The record supports the district court’s reliance on both the visual estimate and the “pacing.”
The deputy testified that he had been a licensed and certified peace officer for eleven years and that he had been trained to visually observe and estimate the speed of vehicles. His initial field training incorporated the use of a radar gun to check his estimates. He stated that he continues this method of speed comparisons on a daily basis in his routine patrol work because he estimates the speed of a car before he activates his radar equipment and then uses the radar readings to confirm his accuracy.
In describing his technique of “pacing” Johnson’s car, the deputy testified that “pacing” was also part of his initial training. He applied the method learned in his training and attempted to maintain an interval of approximately a mile or less between Johnson’s car and the squad. He continued the pacing for a distance of four to five miles. The deputy testified that he did not have a record of speedometer tests on his squad car. He stated that he obtained the car new in August 2003, and the speedometer was certified at that time. He did not believe that the speedometer had been checked in the nineteen months between the purchase of the squad and when he stopped Johnson’s car, but he said that his supervising sergeant maintained those records.
Based on both his estimate of Johnson’s speed and the “pacing” of Johnson’s car, the deputy believed that Johnson was traveling “[f]aster than 65 miles an hour.” The district court accepted this testimony and determined that the state had demonstrated a particularized and objective basis for the traffic stop.
Johnson challenges the legal sufficiency of the district court’s determination. See Minn. Stat. § 169.14, subd. 9 (2004) (providing that speedometer must be “regularly and routinely tested for accuracy and a record of the results of said tests kept on file”). For four reasons we conclude that Johnson’s claim of legal insufficiency cannot invalidate the district court’s findings.
section 169.14, subdivision 9, prescribes an evidentiary standard for the
admissibility of evidence relating to the speed of motor vehicles. But Johnson did not object to the
admissibility or the adequacy of the foundation for the deputy’s “pacing”
testimony at the omnibus hearing. And he
has not argued that the admission was plain error. See
State v. Litzau, 650 N.W.2d 177, 182 (
the deputy based his opinion of Johnson’s speed not only on “pacing,” but also
on his observation of the movement of the car over a distance of four to five
miles. The deputy testified that
following his initial training in speed estimation, he applied this training and
checked his ability against speeds determined by radar daily.
Third, the deputy’s testimony about the speed of Johnson’s car was provided as a basis for the deputy’s reasonable, articulable suspicion that Johnson was violating a traffic law. The evidence of Johnson’s rate of speed was not admitted to establish beyond a reasonable doubt that Johnson was exceeding a posted speed limit.
And fourth, the evidence at the omnibus hearing included Johnson’s statement to the deputy that Johnson’s cruise control was set at 62 m.p.h. Because the speed limit was 55 m.p.h., this undisputed evidence bolsters the objective reasonableness of the deputy’s belief that Johnson was violating a traffic law as he drove on County Road 116.
The evidence supports the district court’s determination that the deputy had a particularized and objective basis to stop Johnson. The district court did not err in denying Johnson’s motion to suppress the evidence that he was driving after the cancellation of his driver’s license.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.