This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-2012

Khabir Abdul-Aleem Rasheed, petitioner,

Respondent,

vs.

State of Minnesota,

Appellant.

Filed July 22, 1997

Reversed

Holtan, Judge

[*]

Hennepin County District Court

File No. 94003674

Stevan S. Yasgur, 7600 Parklawn Avenue, #410, Edina, MN 55435 (for Respondent)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Appellant)

Considered and decided by Parker, Presiding Judge, Harten, Judge, and Holtan, Judge.

U N P U B L I S H E D O P I N I O N

HOLTAN, Judge

Appellant State of Minnesota challenges the postconviction court's vacation of respondent's conviction based on a supreme court case decided subsequent to conviction. We reverse.

FACTS

In 1994, respondent Khabir Abdul-Aleem Rasheed was convicted of first-degree possession of a controlled substance. On appeal to this court, he unsuccessfully challenged the stop and detention of the vehicle he was driving. State v. Harshaw a/k/a Rashid, No. C8-94-2105 (Minn. App. Apr. 25, 1995), review denied (Minn. June 29, 1995).[1] The officer initially stopped respondent because he knew that the owner of the vehicle had a suspended license and did not at the time know that respondent was not the owner. Our earlier opinion contains the details of the stop and detention, and we do not repeat them here.

In March 1996, respondent filed a petition for postconviction relief, seeking vacation of his conviction based on this court's opinion in State v. Pike, 543 N.W.2d 96 (Minn. App. 1996), rev'd, 551 N.W.2d 919 (Minn. 1996), issued after this court's decision in respondent's direct appeal. While respondent's petition was pending below, the supreme court reversed this court in Pike, which concerns the legality of stops based on information that the owner of the vehicle's license is suspended. Respondent continued to pursue his petition for relief under the supreme court's opinion in Pike, and the postconviction court vacated his conviction. The state appeals.

D E C I S I O N

The long-standing rule is that "a claim raised on direct appeal will not be considered upon a subsequent petition for postconviction relief." Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). This court's opinion in respondent's direct appeal plainly considered and rejected his arguments on the constitutionality of the stop and detention and, therefore, at least in the typical case, his postconviction petition would have been denied below.

Respondent, however, argued successfully to the postconviction court that the supreme court's decision in Pike established a change in the law that should be applied retroactively. We disagree.

I. Does Pike Establish a "New Rule"?

A "new rule" of criminal procedure may, in limited circumstances discussed in the next section, be applied retroactively. Teague v. Lane, 489 U.S. 288, 310-11, 109 S. Ct. 1060, 1075-76 (1989). Pike, though, does not establish a new rule.

In Pike, the supreme court considered the propriety of a state trooper's stop of a vehicle based on the trooper's knowledge that the owner of the vehicle had a revoked license.[2] 551 N.W.2d at 922. The court held:

[T]he knowledge that the owner of a vehicle has a revoked license is enough to form the basis of a "reasonable suspicion of criminal activity" when an officer observes the vehicle being driven.

Id. The postconviction court here relied on this holding to find that the initial stop of respondent was constitutional. The Pike court went on to note that

if the officer knows that the owner of a vehicle has a revoked license and further, that the owner is a 22-year-old male, and the officer observes that the person driving the vehicle is a 50- or 60-year-old woman, any reasonable suspicion of criminal activity evaporates. Absent other articulable facts which would give rise to such suspicion, it would be unconstitutional for the officer to make a stop in such a situation.

Id. The postconviction court relied on this language in ruling that the officer here had no basis for further investigation upon stopping respondent and seeing that, because of his age (the officer knew that the owner was significantly older than respondent), he was clearly not the owner.

Pike did not establish a "new rule" on this issue. Both the supreme court's and this court's decisions cite State v. Duesterhoeft, 311 N.W.2d 866, 866-67 (Minn. 1981), in which an officer stopped a vehicle because he had learned a month earlier that its owner had a suspended driver's license. 551 N.W.2d at 922; 543 N.W.2d at 98-99. A computer problem prevented the officer from checking the current status of the license. Duesterhoeft, 311 N.W.2d at 867. Nonetheless, the supreme court upheld the stop, noting that

the officer believed that defendant's license was still under revocation and he reasonably suspected that defendant was the person driving the truck.

Id. at 868. The supreme court in Pike explicitly relied on Duesterhoeft as support for its holding, stating:

Indeed, in Duesterhoeft, though it was not evident from the facts that the officer had any reason to believe that the owner was driving the vehicle, this court stated that "the officer * * * reasonably suspected that defendant was the person driving the truck."

551 N.W.2d at 922 (quoting Duesterhoeft, 311 N.W.2d at 869).

Based on the Pike court's clear reliance on Duesterhoeft, we hold that it did not create any new law. At most, it clarified that mere knowledge that a vehicle owner's license is revoked will support a stop (absent actual knowledge that the driver is not the owner). Pike does not announce any significant change in the law.

II. Even If Pike Did Establish a "New Rule,"

Should It Be Applied Retroactively?

Even if we were to hold that Pike established a new rule of criminal procedure, it would not, under Teague, be subject to retroactive application.

In Teague, the Supreme Court held:

Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.

489 U.S. at 310, 109 S. Ct. at 1075. The two exceptions to Teague's non-retroactivity rule are:

[1] [the] new rule * * * places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," [and]

[2] [the] new rule * * * requires the observance of "those procedures that * * * are 'implicit in the concept of ordered liberty.'"

Id. at 311, 109 S. Ct. at 1075-76 (citations omitted). Respondent argues that his case falls within the second exception. We disagree. In Teague, the Court limited that "exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished." Id. at 313, 109 S. Ct. at 1077. Respondent's constitutional arguments on his stop and detention simply do not relate to the question of whether he in fact committed the crime of first-degree possession of a controlled substance. Therefore, any "new rule" established by Pike would not be subject to retroactive application.

Reversed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 Respondent apparently has changed the spelling of his last name from "Rashid" to "Rasheed."

[ ]2 The trooper also cited other reasons for the stop, but the supreme court expressly stated that it was deciding the case based only on the trooper's knowledge that the vehicle's owner had a revoked license. Pike, 551 N.W.2d at 922.