This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-408

Kevin Michael Philipps, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed July 27, 1999

Affirmed

Harten, Judge

Anoka County District Court

File No. C4989671

Phyllis J. Kirwin, 6401 University Avenue NE, #201, Fridley, MN 55432; and Kenneth F. Kirwin, 875 Summit Avenue, St. Paul, MN 55101 (for appellant)

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol

Office Building, 525 Park Street, St. Paul, MN 55103 (for respondent)

Considered and decided by Harten, Presiding Judge, Parker, Judge,[*] and Thoreen, Judge.[**]

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellant Kevin Michael Philipps challenges the denial of his request for reinstatement of his driving privileges, arguing that, as the result of an unconstitutional search, the exclusionary rule should apply to suppress his identity and the fact that he had a restricted driver's license. We affirm.

FACTS

Following a series of alcohol-related driving incidents in 1976, 1980, 1981, and 1983, the Commissioner of Public Safety cancelled and denied reinstatement of Philipps' driving privileges as inimical to public safety. In 1987, his driver's license was reinstated on the condition that he abstain entirely from alcohol and controlled substances. This condition is known as a "B card" restriction. Philipps violated this condition in 1991, and the commissioner again cancelled and denied his driving privileges. In 1997, Philipps' driver's license was reinstated, subject to a "B card" restriction.

On August 10, 1998, the driver of the vehicle in which Philipps was a passenger was arrested for DWI. The police officer asked Philipps for identification, but he refused. He then administered an Alco-Sensor test on Philipps, which indicated an alcohol-concentration level of .21. Next, the officer offered to give Philipps a ride home. But first, the officer asked Philipps if he had any weapons. Philipps handed him a knife, and the officer conducted a pat-down search. During the search, the officer felt and removed Philipps' wallet. The officer ran a computer check on Philipps' driver's license and discovered the "B card" restriction. The commissioner cancelled and denied reinstatement of Philipps' driving privileges for a third time.

On October 27, 1998, Philipps filed a petition in district court for reinstatement of his driving privileges, pursuant to Minn. Stat. § 171.19 (1998). He argued that the officer conducted an unconstitutional search that revealed his identity and the fact he had a restricted driver's license. The district court concluded that the officer's search of Philipps was unconstitutional but refused to apply the exclusionary rule to the evidence obtained as a result of that search. Because Philipps "openly admitted at the hearing that he was drinking alcohol," the district court also concluded there was independent evidence that Philipps violated his "B card" restriction. The district court therefore denied Philipps' request for reinstatement of his driving privileges, and this appeal followed.

D E C I S I O N

Philipps claims that the district court erred in failing to apply the exclusionary rule to suppress evidence of his identity and the fact that he had a restricted driver's license. We will not reverse a district court's determination regarding a petition for reinstatement of a driver's license unless it is "unsupported by substantial evidence or is arbitrary and capricious." Thorson v. Commissioner of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994) (citation omitted).

The commissioner cancelled and denied reinstatement of Philipps' driving privileges as inimical to public safety. See Minn. Stat. §§ 171.04, subd. 1(9) (1998) (prohibiting issuance of a license when the commissioner has good cause to believe that operation of vehicle by a person would be inimical to public safety); 171.14 (1998) (providing that commissioner may cancel license of person not entitled to receive license under section 171.04). And Philipps sought review of the commissioner's determination under Minn. Stat. § 171.19 (permitting petition for reinstatement of license).

In Madison v. Commissioner of Pub. Safety, 585 N.W.2d 77 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998), we concluded that a district court, pursuant to section 171.19, "acts as a court of first impression" and "conducts a trial de novo" in determining whether a petitioner is entitled to license reinstatement. Id. at 82; see also Minn. Stat. § 171.19 (providing that district court take testimony and examine facts of case to determine whether petitioner is entitled to license). At the hearing on his petition for reinstatement, Philipps testified on direct examination by his attorney that the results of an Alco-Sensor test indicated that he had an alcohol-concentration level of .21. And on cross-examination, Philipps admitted that he had consumed alcohol.

Nevertheless, Philipps seeks to apply the exclusionary rule to suppress evidence of his identity and the fact that he had a restricted driver's license. Because of Philipps' testimony at the license-reinstatement hearing, we need not decide application of the exclusionary rule. But we note that the United States Supreme Court has stated that

[t]he "body" or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.

INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40, 104 S. Ct. 3479, 3483-84 (1984) (citations omitted); see also Wayne R. LaFave, Search and Seizure § 11.4(g), at 324 (3d ed. 1996) (discussing situation in which illegal arrest or search leads to determination of person's identity) (citing Lopez-Mendoza, 468 U.S. at 1039, 104 S. Ct. at 3483; United States v. Guzman-Bruno, 27 F.3d 420, 421-22 (9th Cir. 1994) (stating person's identity need not be suppressed merely because it is discovered as result of illegal arrest or search); and Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir. 1978) (holding there is no sanction when illegal arrest only leads to discovery of person's identity and that merely leads to other independent evidence)). Here, the search revealed only Philipps' identity, which, after a computer check on his driver's license, led to discovery of the "B card" restriction.

Because there was evidence to support the district court's conclusion that Philipps was not entitled to reinstatement of his driving privileges and because evidence of Philipps' identity and the fact that he had a restricted driver's license are not suppressible as the fruits of the police's unconstitutional search, we conclude that the district court properly denied Philipps' request for reinstatement of his driving privileges. See Minn. R. 7503.1300, subpt. 3 (1997) (providing that commissioner shall cancel and deny driver's license of person whose license has been reinstated after completion of rehabilitation when commissioner has sufficient cause to believe person has consumed alcohol since documented date of abstinence).

The commissioner claims that the district court erred in finding that the police search of Philipps was unconstitutional. But the commissioner did not file a notice of review regarding this issue. And a respondent must file a notice of review to challenge a district court's ruling on a particular issue decided adversely to it. City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn. App. 1996) (stating that if respondent fails to file notice of review pursuant to Minn. R. Civ. App. P. 106, issue is not preserved for appeal and reviewing court cannot address it), review denied (Minn. Aug. 6, 1996).

Affirmed.

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

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