may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Christopher Michael Kraudy, petitioner,
Commissioner of Public Safety,
Filed May 25, 1999
Steele County District Court
File No. C9-98-286
Mike Hatch, Attorney General, Ann M. Offermann, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Anderson, Judge.
Appellant Christopher Michael Kraudy challenges the district court's order sustaining the revocation of his driver's license under the implied consent law, arguing that the arresting officer conducted an unconstitutional investigative stop. We affirm.
On March 19, 1998, at approximately 1:07 a.m., a police officer was on patrol and observed appellant operating his snowmobile in the city of Owatonna. The officer did not know where appellant began operating his snowmobile or how long he had been operating it in Owatonna. The officer stopped appellant's snowmobile because he believed appellant was operating his snowmobile in violation of a city ordinance.
After stopping appellant, the officer developed probable cause to believe appellant was under the influence of alcohol and arrested him for operating his snowmobile while under the influence of alcohol. Appellant refused to submit to testing and the Commissioner of Public Safety revoked his driver's license pursuant to Minn. Stat. § 169.123, subd. 5a (1996). Appellant petitioned for judicial review, and the district court sustained the revocation.
The threshold for justifying an investigatory stop is very low. State v. Claussen, 353 N.W.2d 688, 690 (Minn. App. 1984). A police officer may make an investigatory stop of a vehicle if the officer is able to articulate a "`particular and objective basis for suspecting the particular person stopped of criminal activity.'" State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S. Ct. 690, 694-95 (1981)). A "specific and articulable suspicion" of a traffic violation generally provides the minimal support necessary for a routine traffic stop under the Fourth Amendment. Marben v. Department of Public Safety, 294 N.W.2d 697, 699 (Minn. 1980). There is no requirement that an officer actually see a violation. Berge, 374 N.W.2d at 733. All that is required is that the stop "not be the product of mere whim, caprice, or idle curiosity." State v. Combs, 398 N.W.2d 563, 566 (Minn. 1987) (citation omitted).
A vehicle may be stopped if an officer has a suspicion that an ordinance has been violated. See, e.g., Berge, 374 N.W.2d at 733 (upholding stop where officer observed facts justifying inference driver ran stop sign). Owatonna City Ordinance § 725.05, subd. 10, states as follows:
No snowmobile shall be operated within the corporate limits of this municipality between the hours of 11:00 p.m. and 7:00 a.m. the following morning. Such operation may be only on the most direct route from the point of origin to the City limits or return.
Appellant argues that, because the officer did not know whether the snowmobile was operating in "the most direct route from the point of origin to the City limits or return[,]" the officer had no basis for the stop.
Here, the circumstances provided the officer with a particularized and objective basis to suspect appellant of operating his snowmobile in violation of the ordinance. First, the officer observed appellant operating his snowmobile between 11:00 p.m. and 7:00 a.m. (approximately 1:07 a.m.) within Owatonna city limits. Second, the officer did not know where appellant began operating his snowmobile. Therefore, the officer did not know whether or not appellant was operating his snowmobile from the "point of origin to the City limits or return" as authorized by the ordinance. As a result, the officer had a reason to suspect appellant was not in compliance with the ordinance.
It is not clear whether or not the officer stopped the snowmobile based on an incorrect understanding of the ordinance. Such a mistake, however, would not render the stop unlawful. Investigatory stops are to be judged against an objective standard. State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983). Under the objective standard, the court will find a stop lawful independent of an officer's articulated reasons. State v. DeRose, 365 N.W.2d 284, 286 (Minn. App. 1985) (finding that officer's failure to articulate certain violations of law as basis for stopping defendants irrelevant under objective standard).
Because the circumstances observed by the officer provided him with a particularized and objective basis to suspect appellant of violating the ordinance, the officer was justified in stopping appellant's snowmobile for further investigation. We affirm the district court's order sustaining the revocation of appellant's driving privileges.
RANDALL, Judge (dissenting).
I respectfully dissent. When examined carefully, and the examination does not even have to be that close, it is clear that Owatonna's snowmobile ordinance (an "anti-noise" and an "anti-DUI" ordinance) is simply a "checkpoint" ordinance. Thus, it is controlled, on constitutional grounds by Ascher v. Commissioner of Pub. Safety, 519 N.W.2d 183 (Minn. 1994), and is therefore unconstitutional as a matter of law.
I will flesh out the pertinent facts as outlined by the majority with the factual setting from appellant's brief, a version of the facts respondents do not dispute:
On March 19, 1998, Appellant was operating his snowmobile at the border of the city limits of Owatonna at 1:07 a.m. The arresting officer observed Appellant's operation of the snowmobile within the city limits of Owatonna and activated his overheads in order to stop Appellant for violating a city ordinance. City of Owatonna ordinance 725.05 Subd. 10 reads: "No snowmobile shall be operated within the corporate limits of this municipality between the hours of 11:00 p.m. and 7:30 a.m. the following morning. Such operation must be only on the most direct route from the point or [sic] origin to the City limits or return." The Officer testified that at the time the Officer first saw Appellant, Appellant was within the city limits of Owatonna and traveling on a direct route that led out of the City limits of Owatonna. The Officer testified that the ordinance violation was the only reason the Officer stopped Appellant. When the Officer activated his overheads the Appellant, reacting appropriately to the Officer's overheads, came to a stop. The route Appellant was following was so close to the border of the Owatonna city limits that the Officer testified Appellant's snowmobile was outside the Owatonna city limits when Appellant was stopped. After the stop, the Officer developed probable cause to believe Appellant was under the influence of alcohol.
The district court's memorandum of law, which was incorporated into its order sustaining the revocation of petitioner's license, sets out precisely the same legal analysis as followed by the majority. Both the district court and the majority use the same standard cases discussing the low threshold for a vehicle stop, which is (without citation) at least some particularized and objective basis to suspect the individual of criminal activity.
For purposes of the legal analysis, there is no dispute that the officer "seized" Kraudy for Fourth Amendment purposes when the officer activated his emergency lights and pulled his snowmobile over. See State v. Day, 461 N.W.2d 404, 406 (Minn. App. 1990) (stating seizure occurs when officer stops automobile), review denied (Minn. Dec. 20, 1990).
The record does not just corroborate, but proves beyond a reasonable doubt, that the officer had absolutely no knowledge of whether appellant was or was not traveling on the most direct route from the point of origin to the city limits or returning on that route. The officer only knew that it was between 11:00 p.m. and 7:00 a.m.
The majority concedes this point and does it in a straightforward, candid manner. The majority states:
Second, the officer did not know where appellant began operating his snowmobile. Therefore, the officer did not know whether or not appellant was operating his snowmobile from the "point of origin to the City limits or return" as authorized by the ordinance.
That same concession was acknowledged by the district court in its memorandum and holding. The majority then affirms the district court with the pure conclusory statement that since the snowmobile was moving between 11:00 p.m. and 7:00 a.m., and since the officer did not know whether or not appellant was operating his snowmobile from the point of origin, therefore (somehow), the officer "had a reasonable suspicion" that appellant was not on a direct route to or from his home and, thus, was driving illegally.
I suggest respectfully that it is logically impossible to make the conclusion that the officer had a particularized and objective reason to suspect appellant was violating the ordinance when one of the two supporting premises is a concession that the officer did not know whether or not appellant was violating the ordinance. It is not a violation of the ordinance to operate a snowmobile between 11:00 p.m. and 7:00 a.m. in Owatonna. You have to read into the ordinance the conjunction "and" that means both prongs are necessary for a violation. The first prong is the time, and the second essential prong, which, if missed, just as if the first prong was missing, makes it no crime. The second prong is that the operation must not be on the most direct route from when you started to the city limits of Owatonna, or when coming back into the city, not going home by the most direct route.
At oral argument, it was acknowledged that this is a type of anti-noise ordinance. It is clear, and needs no supporting data, that snowmobiles do make noise and do not have the exhaust and muffler system of cars. Thus, the noise of snowmobiles in operation during normal sleeping hours could be thought of as an irritation to residents. But rather than ban all driving of snowmobiles between 11:00 p.m. and 7:00 a.m., Owatonna saw fit to allow snowmobile drivers to leave town during that time zone or to return to their homes during that time zone as long as they did it by the most direct route.
The constitutional problem is that this snowmobile ordinance at issue is not "quite like" the checkpoints (struck down as unconstitutional) in Ascher, but is precisely like the Ascher checkpoints/roadblocks. In Ascher, you have legitimate community and law enforcement concerns about alcohol-impaired car drivers. In Owatonna, you have legitimate and community concerns about snowmobiles operating during sleeping hours. In Ascher, the police first stopped all cars in their temporary checkpoint zone and then changed it to every fourth car. Ascher, 519 N.W.2d at 184. In Owatonna, law enforcement is allowed to stop, if they wish, every single snowmobile operating in the city limits between 11:00 p.m. and 7:00 a.m., or some of them, or none of them. As stated, the time frame 11:00 p.m. to 7:00 a.m. is the checkpoint zone. In Ascher, the state easily conceded that the officers had absolutely no idea that the stopped motorists were driving alcohol-impaired, but attempted to justify the stops on "public policy." Id. (noting police officer testified purposes of roadblocks "were apprehension and deterrence" of individuals driving while under the influence of alcohol).
In this Owatonna case, the state concedes that before questioning the snowmobile driver, the officer had absolutely no idea whether he was or was not on a direct route to or from his house.
In Ascher, the Minnesota Supreme Court acknowledged public policy and then went on to find that the checkpoints violated the Minnesota Constitution, holding:
[E]xercising our independent authority to interpret our own state constitution to protect the rights of the citizens of Minnesota, we have engaged in a judicial determination of the reasonableness of the use of a temporary roadblock to stop a large number of drivers in the hope of discovering evidence of alcohol-impaired driving by some of them and have concluded that it violates Minn. Const. art. I, § 10, which we have long held generally requires the police to have an objective individualized articulable suspicion of criminal wrongdoing before subjecting a driver to an investigative stop.
Id. at 187 (citation omitted). Ascher also states:
This case arises from a roadblock that the Burnsville Police Department and the Minnesota State Patrol conducted at the intersection of Nicollet Avenue and Highway 13 in Burnsville from 10:00 p.m., Friday, August 14, 1992, to 2:00 a.m., Saturday, August 15, 1992. The supervising patrol officer testified that the location was chosen because it is a "high accident area" and a site where there is a "high inciden[ce] of DWI violations." He testified that the purposes of the roadblock were apprehension and deterrence.
Id. at 184.
The Ascher court then acknowledged the different interpretation by the United States Supreme Court, stating in pertinent part:
In Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481 (1990), the United States Supreme Court, in a decision written by Chief Justice Rehnquist, used this test in concluding that use of temporary roadblocks to stop and investigate all drivers in the hope of catching some alcohol-impaired drivers does not violate the Fourth Amendment.
The Court began its analysis by stating the obvious: "No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it."
Id. at 185 (quoting Sitz, 496 U.S. at 451, 110 S. Ct. at 2485). The Ascher court then pointed out that the U.S. Supreme Court appeared interested only in results:
Pointing to evidence that such roadblocks result in drunken driving arrests of around one percent of all motorists stopped, the Court held that the state had established effectiveness. In summary, the Court said, "the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program."
Id. (quoting Sitz, 496 U.S. at 455, 110 S. Ct. at 2488) (citation omitted).
The Ascher court iterated the obvious, which should have been obvious to the U.S. Supreme Court as it was based on their own decisions. The Ascher court then went on to define the constitutional protection the State of Minnesota gives its own citizens under our Article I, Section 10. The Ascher court quoted from the dissent of Justice Brennan in Sitz, as joined by Justice Marshall, observing:
"The Court ignores the fact that in this class of minimally intrusive searches, we have generally required the government to prove that it had reasonable suspicion for a minimally intrusive seizure to be considered reasonable. Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police."
Id. (quoting Sitz, 496 U.S. at 457-58, 110 S. Ct. at 2489 (Brennan, J., dissenting) (citations omitted)).
The Ascher court's clear conclusion was that under the Minnesota State Constitution, checkpoint stops or temporary roadblock stops to check for alcohol-impaired drivers, no matter if laudable from a public policy standpoint, are violative of the Minnesota Constitution. It states in pertinent part:
The real issue in this case is not, as some might phrase it, whether the police conduct in question is reasonable in some abstract sense, nor is it whether the police procedure is in some sense effective. Rather, the issue is whether the state has met its burden of articulating a persuasive reason for departure from the general requirement of individualized suspicion[.] * * *
* * * *
Exercising our independent authority to interpret our own state constitution to protect the rights of citizens of Minnesota, we have engaged in a judicial determination of the reasonableness of the use of a temporary roadblock to stop a large number of drivers in the hope of discovering evidence of alcohol-impaired driving by some of them and have concluded that it violates Minn. Const. art. 1, § 10, which we have long held generally requires the police to have an objective individualized articulable suspicion of criminal wrongdoing before subjecting a driver to an investigative stop.
Id. at 186-87 (citation omitted).
The Owatonna ordinance is a checkpoint stop, or a temporary roadblock for snowmobile drivers, to see if they are on a direct path in or out of town (and to smell the air for the presence of alcohol). That is all there is, no more.
The "public policy" argument the state lost in Ascher is rampant here and a core part of the holding in this case. The district court said:
[T]he final [Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976)] factor to be considered is the interest of the government. The most significant interest the government has is in keeping Minnesota roads safe and free of drunk drivers.
(Emphasis added.) The district court set that out in its memorandum, and at oral argument Owatonna's attorneys mentioned that issue and the anti-noise issue.
If Owatonna is truly concerned about overly loud snowmobiles, then it should attempt to draft up a constitutional anti-noise ordinance, or better yet, use the state statute already on the books. Minnesota does have a criminal statute making it illegal to drive without a muffler on a snowmobile. See Minn. Stat. § 84.871, subd. 1 (1998) (providing every snowmobile shall be equipped with muffler in good working condition "to prevent excessive or unusual noise"). Also, Owatonna does not have to draft up an ordinance prohibiting driving snowmobiles while alcohol-impaired. The State of Minnesota already has such a law and it can be enforced by all law enforcement whenever it can be proved. See Minn. Stat. § 84.91, subd. 1(c) (1998) (stating no person shall operate or be in physical control of snowmobile while under influence of alcohol or any controlled substance).
The basic fatal constitutional fault with the Owatonna ordinance is that it only requires articulable suspicion on one of the two essential prongs, namely, the time zone. But it is no more unlawful per se to drive a snowmobile in Owatonna between 11:00 p.m. and 7:00 a.m. than it is unlawful per se to drive a car on Minnesota roads. To be guilty of DUI and its derivatives, you have to both be operating a vehicle and alcohol-impaired. To be criminally guilty of this ordinance in Owatonna, you to be both driving in the "time zone," the checkpoint, so to speak, and not driving to or from your residence by the most direct route.
The Ascher court struck down checkpoints as unconstitutional on the issue of alcohol-impaired car drivers, an area of far greater public concern than the issue of noise caused by snowmobile exhaust systems between 11:00 p.m. and 7:00 a.m. If public policy was overcome in the Ascher case, it would not be just illogical, but disrespectful to the Minnesota Constitution, to give public policy the major weight in an anti-noise ordinance.
Compared to the public policy issue in Ascher, this case has trivial facts, but it is not a trivial case. It cannot be overlooked, dismissed, or winked at - "if boys will be boys," "small town village ordinances will be small town village ordinances," because small and large town ordinances have an odious, seamy history of being unconstitutional. See, e.g., Koppinger v. City of Fairmont, 311 Minn. 186, 201, 248 N.W.2d 708, 716 (1976) (holding city's nudity ordinance unconstitutionally overbroad); State v. Schmidt, 280 Minn. 281, 283, 159 N.W.2d 113, 115 (1968) (holding city ordinance requiring transient merchants to obtain permit to do business and to post bond violated equal protection of laws); State v. Stallman, 519 N.W.2d 903, 910 (Minn. App. 1994) (holding city's anticruising ordinance violated fundamental right of intrastate travel and unconstitutionally vague); State v. Gonzales, 483 N.W.2d 736, 737-38 (Minn. App. 1992) (holding city ordinance requiring forfeiture of motor vehicles driven by customers of prostitutes unconstitutional because preempted by state law), review denied (Minn. June 10, 1992); Goward v. City of Minneapolis, 456 N.W.2d 460, 468 (Minn. App. 1990) (holding city ordinance prohibiting erection of signs with political message on private property violative of First Amendment).
The subjectivity and arbitrariness of ordinances aimed at a particular disliked group is beyond debate. At various times, vagrancy, or loitering, or no visible means of support ordinances, were aimed at prostitutes, people begging, "long-haired hippies," and "undesirables" (meaning, usually, someone you don't recognize as being from your home town, who is under 30, and whose complexion is swarthier than your own).
The same danger, or at least potential for abuse, exists with the Owatonna ordinance. A town constable stopping a snowmobile at 12:30 a.m., and only recognizing the driver when his hooded helmet comes off, is going to be sorely tempted to say to the businessman or business woman or "doctor, lawyer, merchant, chief," "Hey, Charlie, how's it going? Headed home are you?" Charlie or Joan says, "Sure am, Officer Jones. Had to go five blocks out of my way to get some aspirin from the Seven-Eleven. Got a little headache." Officer Jones responds, "Yea, I know what you mean. I get headaches sometimes myself working the night shift. Have a safe drive home -- and give the missus my regards."
If the driver of the snowmobile is youthful, not known to the officer, and perhaps a little smart alecky or confrontational with the officer, and tries to argue that he is only three blocks out of the direct route to his house because he just stopped at the Seven-Eleven for a can of Mountain Dew, he will likely get the ticket for violating the law.
I do not premise my dissent on the above hypothetical example. I set it out simply to make the point that town ordinances cannot be overlooked for the deprivation of constitutional rights they represent merely because they seem trivial, seem to have a good purpose, and seem only to affect a tiny class of people whom the establishment "does not like" (which here is people driving snowmobiles lawfully in all respects, but between the hours of 11:00 p.m. and 7:00 a.m., when nice folks are home sleeping).
To make the point, assume, for instance, a town thought it had a problem with prostitution. What do we do with a local ordinance that provides:
No woman over the age of 10 or under the age of 60, shall, between the hours of 11:00 p.m. and 7:00 a.m. the following morning, be on public sidewalks or public roads unaccompanied by a male unless she is returning home from beyond the city limits by the most direct route, or if traveling from her home to beyond the city limits by the most direct route.
What do we do with that ordinance? The question is rhetorical, as it gets dropkicked into history the first time it surfaces. Let us take another example with the same parallel. Assume a town has a perceived problem with illegal drug activity. A comprehensive study of the verifiable statistics taken from arrests, trials, and convictions shows that, disproportionately, young males between the ages of 14 and 29 are involved. The statistical record also shows the "high incident" (as in Ascher) area of such activity to be street corners. Thus, the published ordinance reads:
No males between the ages of 14 and 29 shall be on any street corner within the city limits between the hours of 11:00 p.m. and 7:00 a.m. the following morning, unless they are accompanied by a parent or are traveling from outside the city limits to their home by the most direct route, or are traveling from their home to beyond the city limits by the most direct route.
Question, who gets stopped? Young male Caucasians dressed like law firm associates or stockbrokers, or young males of color dressed in casual street clothes? What do we do with this ordinance? The same as above. We dropkick it into history the first time it is argued.
This case has a pure constitutional dimension. It authorizes the temporary stop of all snowmobiles in a time zone checkpoint. Ascher discussed the temporary stop of motor cars in a zone of suspected alcohol-impaired drivers. The alcohol-impaired checkpoint could not stand under the Minnesota Constitution. Neither can the Owatonna snowmobile ordinance.
I respectfully dissent, would reverse outright, and strike down the Owatonna snowmobile ordinance as unconstitutional per se under the Minnesota Constitution, Article I, section 10.