Filed August 23, 2005

Affirmed

Randall, Judge

Hennepin County District Court

File No. 04022879

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jay M. Heffern, Minneapolis City Attorney, Judd Gushwa, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Leonardo Castro, Fourth District Public Defender, Paul J. Maravigli, Assistant Public Defender, 317 Second Avenue South, #200, Minneapolis, MN 55401 (for appellant)

Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

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

RANDALL, Judge

On appeal from conviction for misdemeanor driving after cancellation, giving false information to police, and having no proof of insurance, appellant argues that the statute prohibiting the suspension of objects between the driver and the windshield: (a) is unconstitutionally overbroad, (b) violates equal protection because it allows police to suspend objects in the same locations, and (c) produces an absurd result. We affirm.

FACTS

On April 7, 2004, at approximately 8:10 a.m., Officer Hatle of the Minneapolis Police Department observed a 1993 Chevrolet Cavalier proceeding northbound on Hennepin Avenue. Because Officer Hatle noticed that the vehicle had a pine tree air-freshener hanging from the rearview mirror, in violation of Minn. Stat. § 169.71, subd. 1 (2004), he stopped the vehicle. The driver of the vehicle, later identified as appellant Valiant Green, initially told the officer that he did not have his driver’s license with him. Appellant also provided Officer Hatle with a false name and failed to provide proof of insurance of the vehicle. Subsequent investigation revealed that appellant was driving despite having a cancelled driver’s license.

Appellant was charged with providing false information to police, driving after cancellation of his driver’s license, and failure to provide proof of insurance. Appellant subsequently moved to suppress the evidence obtained as a result of the stop on the basis that Minn. Stat. § 169.71, subd. 1, which was the sole basis for the traffic stop, is unconstitutional. The district court denied the motion and, following a trial on stipulated facts, found appellant guilty of the charged offenses. This appeal followed.

D E C I S I O N

The constitutionality of a statute presents a question of law, which this court reviews de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999). Minnesota statutes are presumed to be constitutional, and a court’s power to declare a statute unconstitutional “should be exercised with extreme caution and only when absolutely necessary.” State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998). A party challenging a statute has the burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional. Id.

Appellant argues that Minn. Stat. § 169.71, subd. 1 (2004), is unconstitutionally overbroad. This statute provides:

No person shall drive or operate any motor vehicle with a windshield cracked or discolored to the extent to limit or obstruct proper vision, or, except for law enforcement vehicles, with any objects suspended between the driver and the windshield, other than sun visors and rear vision mirrors, or with any sign poster, or other nontransparent material upon the front windshield, sidewings, side or rear windows of such vehicle, other than a certificate or other paper required to be so displayed by law, or authorized by the state director of the division of emergency management, or the commissioner of public safety.

Minn. Stat. § 169.71, subd. 1.

Overbroad restrictions of expression are unconstitutional. New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 3361 (1982). The doctrine of overbreadth, facially invalidating entire statutes, is “strong medicine” and should be applied cautiously. Osborne v. Ohio, 495 U.S. 103, 122, 110 S. Ct. 1691, 1703 (1990) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 2916 (1973)). A statute is unconstitutionally overbroad only when the overbreadth is both real and substantial. Broadrick, 413 U.S. at 615, 93 S. Ct. at 2918. A statute must substantially affect constitutionally protected speech to trigger the overbreadth doctrine. Ferber, 458 U.S. at 773, 102 S. Ct. at 3363. If a statute’s legitimate reach “dwarfs its arguably impermissible applications,” it is facially valid. Id. at 773, 102 S. Ct. at 3363.

Before a facial overbreadth challenge can be addressed, it must first be determined whether the statute in question implicates the First Amendment. Machholz, 574 N.W.2d at 419. If the First Amendment is not implicated, no further inquiry is necessary because no constitutional question is raised. Id.

Appellant contends that hanging the pine tree air-freshener from his rearview mirror is constitutionally protected speech because “[h]is clear display of a pine tree air freshener serves as a statement to the public about both the aromatic quality of his vehicle’s interior, and an aesthetic expression of his appreciation for nature.” Although hanging an air-freshener is not a spoken communication, First Amendment protection is not limited to the written or spoken word; it extends to some expressive activity where the activity itself may be communicative. See Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727 (1974) (affixing a peace symbol to a flag was protected expression); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969) (wearing armbands to protest the Vietnam War was constitutionally protected expression). The Supreme Court in Spence formulated the test for determining whether conduct is sufficiently expressive to merit First Amendment protection. 418 U.S. at 410-11, 94 S. Ct. at 2730. The inquiry looks at whether “[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Id.

The Supreme Court has stated: “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 1678 (1968). We conclude that “car fresheners” are within the “O’Brien ambit.”

If appellant was intending to convey a particularized message by hanging the pine tree air-freshener from his rearview mirror, it is unlikely that anyone who viewed the air-freshener would understand appellant’s claimed message; that he “appreciates nature and cares about the aroma of his vehicle’s interior.” The First Amendment is not implicated; no further inquiry is necessary.

II.

The Equal Protection Clause of the Fourteenth Amendment provides, in relevant part, “No [s]tate shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Article I, Section 2, of the Minnesota Constitution provides, “[n]o member of this [s]tate shall be disenfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.” While all similarly situated persons shall be treated alike, “only invidious discrimination is deemed constitutionally offensive.” Scott v. Minneapolis Police Relief Ass’n, 615 N.W.2d 66, 74 (Minn. 2000) (quotation omitted). Appellant argues that section 169.71, subd. 1, denies him equal protection of the law because the statute allows law enforcement officers to hang objects from their rearview mirrors, but it prohibits all other individuals from hanging anything from their rearview mirrors. Appellant asserts that strict scrutiny should be applied because the statute involves his fundament right to freedom of expression.

Fundamental rights are those “deeply rooted in this Nation’s history and tradition.” Moore v. City of E. Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938 (1977); see, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394 (1982) (right to familial relations fundamental); Zablocki v. Redhail, 434 U.S. 374, 383-84, 98 S. Ct. 673, 679-80 (1978) (right to marry fundamental); Reynolds v. Sims, 377 U.S. 533, 559-60, 84 S. Ct. 1362, 1380 (1964) (voting rights fundamental). Unless a constitutional challenge to the statute involves a suspect classification or a fundamental right, this court reviews the challenge using a rational-basis standard under both the state and federal constitutions, and the statute will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Scott, 615 N.W.2d at 74.

Here, Minn. Stat. § 169.71, subd. 1, does not involve a fundamental right or a suspect classification. A rational basis scrutiny is applicable. The statute passes rational basis scrutiny. Law enforcement has additional tasks and equipment that is used in the operation of their vehicles, and that includes pieces of equipment that the normal motorist on the highway does not have. There is no discrimination, and the distinctions are not arbitrary, but are based on bona fide employment requirements. For instance, law enforcement may carry their riot shotguns uncased. Other than law enforcement, the law requires weapons inside a vehicle to be unloaded and cased. Minn. Stat. § 97B.045, subd. 1 (2004). Regardless of the strictness of a state’s “permit to carry a pistol regulation,” law enforcement carries pistols and does not have to apply for that right as other citizens do. See 2005 Minn. Laws ch. 83 (West). In their vehicles, law enforcement might carry tear gas, infrared sniper scopes, and other types of weaponry not available to the average citizen. Put another way, the fact that law enforcement has a right to possess certain things, whether on their person or in their vehicles, is not even close to a logical argument that, therefore, all citizens should be allowed to possess them. There is no equal protection violation.

III.

Appellant also argues that Minn. Stat. § 169.71, subd. 1, produces an “absurd result” because the statute provides an exception to its provisions for law enforcement vehicles. Appellant argues that a large object hanging from a law enforcement vehicle’s rearview mirror would certainly obstruct a law enforcement officer’s vision, yet they are allowed to drive with such an obstruction. Appellant asserts that the exception creates a “double standard” that ultimately conflicts with the statute’s purpose. This argument is simply a rehash of appellant’s argument in section II. Many law enforcement vehicles have equipment that is not used by the general public. The exception in Minn. Stat. § 169.71, subd. 1, for law enforcement is not arbitrary, passes the rational scrutiny test, and does not discriminate against non-law enforcement personnel.

IV.

We do understand the following argument of appellant. Appellant argues that this court should invalidate Minn. Stat. § 169.71, subd. 1, because a number of other states have laws that prohibit suspended objects only if the driver’s view is obstructed. See, e.g., Commonwealth v. Felty, 662 A.2d 1102, 1105 (Pa. Super. 1995) (stating that object must materially obstruct the driver’s view); People v. Mendoza, 599 N.E.2d 1375, 1383 (Ill. App. 1992) (stating that object must obstruct driver’s vision); Snow v. State, 578 A.2d 816, 824 (Md. App. 1990). Appellant is correct. Minnesota’s law differs from the laws of those other states and is much narrower and is much more restrictive. A rational argument can be made that unless the suspended object truly, even if only in a modest way, obstructs the driver’s vision, the law is subject to arbitrary enforcement and can be used as a pretext to stop those whom law enforcement wishes to stop and investigate for other purposes. In other words, Minnesota’s strict view leaves open the possibility of a pretextual stop. See, e.g., State v. Pacas, C7-99-1109, 1999 WL 1256374, at *1 (Minn. App. Dec. 28, 1999) (upholding the district court’s finding that the officer’s testimony that he pulled over the defendant because he had a pine tree air freshener hanging from the rearview mirror was not credible and that the stop was pretextual); State v. Hardy, C3-94-813, 1994 WL 495094, at *1 (Minn. App. Sept. 13, 1994). In Hardy, we affirmed a district court that found the absence of an objective articulable reason for a stop. That district court concluded the officer used the presence of an air freshener hanging from the rearview mirror as a pretext to stop the defendant because the defendant was an African-American driving in the area of shopping centers after midnight.

Having pointed out the underlying danger of pretextual stops, no criminal statute is unconstitutional on its face simply because it is construed strictly and narrowly. On these facts, the district court found no clear evidence of a pretextual stop. The court stated that: “In short, simply noting that he is black does not rise to the level of establishing a prima facie case of a pretextual traffic stop, absent some further allegation. [Appellant] offers none.” Appellant did not brief the issue of pretext on appeal, and merely alluded to “pretext” in passing in his rebuttal argument. On these facts, a finding of a “pretextual stop” was not warranted.

Affirmed.