This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Dennis Lee Mueller,


Filed April 21, 1998


Klaphake, Judge

Concurring specially, Randall, Judge

Winona County District Court

File No. K1-97-1124

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Charles E. Maclean, Winona County Attorney, Nancy L. Buytendorp, Assistant County Attorney, 171 West Third Street, Winona, MN 55987 (for appellant)

John Paul Plachecki, 59 West Third Street, Winona, MN 55987 (for respondent)

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



The state appeals from an omnibus order dismissing for lack of probable cause the charge of carrying a weapon without a permit against respondent Dennis Lee Mueller. Because a statutory exception to the permit requirement applies under the specific facts of this case, we affirm the district court's dismissal of the charge.


The state may appeal a pretrial order as of right except where the order dismisses the complaint for lack of probable cause. Minn. R. Crim. P. 28.04, subd. 1(1). A dismissal for lack of probable cause is appealable, however, if it "is based on a legal determination, such as the interpretation of a statute." State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991); see State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977) (applying critical impact test to determine appellate court jurisdiction over pretrial appeals).

Generally, it is a criminal offense to carry a weapon without a permit. Minn. Stat. § 624.714, subd. 1(a) (1996). There are several enumerated exceptions to the permit requirement, one of which is "transport[ing] a pistol in a motor vehicle * * * if the pistol is unloaded, contained in a closed and fastened case, gunbox, or securely tied package." Minn. Stat. § 624.714, subd. 9(e). The parties dispute whether this exception applies under the facts of this case.

We agree with the district court's conclusion that respondent's method of transporting a pistol in his vehicle was within the statutory exception. When respondent's vehicle was stopped for erratic driving, the pistol was unloaded, fastened in a holster, and stored in the vehicle's closed glove compartment. The state offered no evidence challenging respondent's testimony that the glove compartment was closed or that the pistol was unloaded. Despite respondent's testimony that the pistol could not have fallen out of the holster, the state claims that the pistol was not properly contained because the holster was somewhat large for the pistol. We do not view this factual dispute as dispositive; rather, under the undisputed facts we conclude that the statutory exception applies.

The broad language of the exception requires only that the pistol be unloaded and packaged or contained in some manner, and neither requires secure containment such as a locked case, nor specifies the type of case to be used, such as a gun case. Given this general language, we conclude that respondent's containment of his pistol met the statutory exception. See Minn. Stat. § 609.01, subd. 1(2) (1996) (general principle of criminal laws is "[t]o protect the individual against the misuse of the criminal law by fairly defining the acts and omissions prohibited").

The state argues that the statutory exception should be narrowly construed, relying on State v. Poupard, 471 N.W.2d 686, 691 (Minn. App. 1991) (examining permit exception for carrying pistol between person's home and business). In Poupard, this court narrowly interpreted a different statutory exception to further the "public policy underlying the statute"--to prevent criminal behavior and prevent harm to innocent people--and stated that to give the statutory construction urged by the defendant in that case would have negated the permit requirement for any business owner traveling between home and work. Id. at 690-91. Our decision here, however, will not have the same eviscerating effect on the applicable statutory exception--the exception will continue to apply only if the pistol is unloaded and properly contained or packaged. Further, respondent's containment of the pistol in this case does not violate the overall purpose of the statute, which is to "prevent the possession of firearms in places where they are most likely to cause harm in the wrong hands, i.e., in public places * * *." State v. Paige, 256 N.W.2d 298, 303 (Minn. 1977). Because the statutory exception to this permit requirement applies under the specific facts of this case, we affirm the district court's dismissal of the charge of carrying a weapon without a permit.


RANDALL, Judge (concurring specially).

I concur in the majority's decision to affirm the district court, but write separately to address whether the district court's order for dismissal was appealable by the prosecution.

As the majority correctly notes, the state may not appeal from a pretrial order dismissing a complaint for lack of probable cause. Minn. R. Crim. P. 28.04, subd. 1(1) (stating prosecution may appeal "in any case, from any pretrial order of the trial court except an order dismissing a complaint for lack of probable cause"). In State v. Aarsvold and its progeny, a line of cases developed holding that where a district court's dismissal for lack of probable cause presents "solely a question of law," the state may appeal the order. 376 N.W.2d 518, 520-21 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985). This case is not one of those.

The cases applying the "error on a legal issue" exception (thus making a nonappealable dismissal appealable) have to be read with the knowledge that all dismissals for lack of probable cause involve a district court judge applying a legal conclusion to a set of facts. The conclusion the district court draws is that based on the facts on the record, there is not even "probable cause" that the defendant committed the crime. In a true sense, all conclusions of a judge contain at least elements of law. This court stated in State v. Moe:

A probable cause determination is a mixed question of fact and law, but once the facts have been found, the court must apply the law to determine whether probable cause exists.

498 N.W.2d 755, 758 (Minn. App. 1993). Taken too literally, an exception would be read into Rule 28.04, subd. 1(1) for all "legal questions," thus totally eviscerating the intent of this rule's prohibition on appeals from dismissals for lack of probable cause. In construing laws, this court should presume the legislature did not intend an absurd result. Minn. Stat. § 645.17(1) (1996). Similarly, this court should not construe the Rules of Criminal Procedure to have an absurd result.

Here, the district court simply looked at the statute making it illegal to carry a weapon without a permit, and then, based on the facts of the case, concluded that no probable cause existed. The dismissal fits squarely within the written words and the intent of Rule 28.04, subd. 1(1).

The exception to the nonappealability of dismissals for lack of probable cause would only come into play in this case based on something akin to the following hypothetical. Assume that the district court ruled that the pistol in question was a semiautomatic and the statute requiring permits was only meant to cover revolvers. That would be appealable by the prosecution, for that would be a clear legal question based on undisputed facts.

Here, instead, the district court's conclusion, after hearing the evidence and weighing the facts, was a straightforward dismissal based on a finding that the state had not shown probable cause.

Neither side briefed the issue of appealability. Thus, I write a special concurrence to point out that the state's position in this case is nonappealable as a matter of law and should have been dismissed outright. See Minn. R. Crim. P. 28.04, subd. 1(1) (state may appeal from any pretrial order except order dismissing for lack of probable cause).

Based on a common-sense reading of Rule 28.04, subd. 1(1), this case is not properly before this court.