This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-1109

State of Minnesota,
Appellant,

vs.

Guido Astul Pacas,
Respondent.

Filed December 28, 1999
Affirmed
Klaphake, Judge

Hennepin County District Court
File No. 98-114731

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Jay M. Heffern, Minneapolis City Attorney, Michelle M. Jacobson, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh St., Minneapolis, MN 55402 (for appellant)

William McGee, Fourth District Public Defender, Renee Bergeron, Assistant Public Defender, Hennepin County Public Defenders Office, 317 Second Avenue South, #200, Minneapolis, MN 55401-0809 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

State Trooper Steven Dean stopped and arrested respondent Guido Pacas for driving while under the influence of alcohol (DWI). Dean testified at Pacasís Rasmussen hearing that he stopped Pacas after observing three equipment violations on Pacasís vehicle: partially obscured license tabs; a pine tree air freshener hanging from the rearview mirror; and no front license plate. The district court, ruling that Deanís testimony was not credible and that Pacasís stop was pretextual, suppressed the evidence obtained during the stop and subsequently dismissed the case. Because we decline to disturb the credibility determinations made by the district court, we affirm.

D E C I S I O N

The state argues that the district courtís assessment of the facts surrounding the stop was clearly erroneous. This court gives "great deference" to a district courtís findings of fact and discretion in determining the credibility of witnesses. Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986). Even if this court might have found the facts differently, we will not reverse absent an abuse of discretion. Id.; see also State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (police officerís belief that defendantís motorcycle had illegal headlights not proper basis for traffic stop where headlights were legal under state law).

The state urges that Dean observed three equipment violations prior to stopping Pacas and that these violations constituted sufficient reasonable and articulable suspicion of criminal activity justifying the stop under United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981) and State v. Berge, 374 N.W.2d 730, 732 (Minn. 1992). However, it was established at the hearing that on the night of the stop, the sky was "completely dark"; Dean was some distance from Pacasís car when he first observed it; and Dean observed the car for about eight to ten blocks at highway speed before stopping it. Based on these facts, the district court concluded that it was unlikely that Dean was able to see the registration tabs clearly enough to discern whether they were partially covered by the license plate frame. Dean also testified that he observed the missing front license plate when he pulled in front of Pacasís vehicle, but in other testimony stated that he observed the missing front plate only after the stop. The district court reasoned that given the lighting conditions, the speed at which Dean was traveling, and the short length of time he had to observe Pacas, it was highly unlikely Dean could have seen the pine tree air freshener hanging from the rearview mirror until after he stopped Pacas.[1]

Giving deference to the district courtís credibility determinations, as we must, we conclude that Trooper Dean did not have a "particularized and objective basis" for suspecting that Pacas was involved in criminal activity. George, 557 N.W.2d 575, 578; see Purnell v. Commissioner of Pub. Safety, 410 N.W.2d 439, 441 (Minn. App. 1987) (within district courtís discretion to determine credibility of officerís testimony in traffic stop case). It is clear from Deanís testimony that he did not have objective support for his belief that Pacas committed the three traffic violations until after he stopped Pacas. Id. (citing State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989)). Because Deanís investigatory stop was not based on an objective and articulable suspicion of criminal activity, any evidence obtained as a result of the unlawful stop must be suppressed. State v. Harris, 590 N.W.2d 90, 97 (Minn. 1999).

Affirmed.

[1] The district court also found that even if it was not clear whether Dean could see the air freshener hanging from Pacas's rearview mirror before stopping him, the air freshener was not obstructing Pacas's view of the road and was not a legitimate basis for the stop. Minn. Stat. ß 169.71, subd. 1 (1998) prohibits a driver from suspending objects between himself and the windshield "to an extent to limit or obstruct proper vision." Because the district court's finding that the air freshener did not obstruct Pacas's vision is not clearly erroneous, this is an independent basis for affirming the district court on this issue.