This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1851

 

State of Minnesota,
Respondent,

vs.

David Paul Babcock,
Appellant.

 

Filed July 11, 2006

Affirmed; motion denied

Stoneburner, Judge

 

Washington County District Court

File No. K3044150

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Margaret M. Murphy, Assistant Stillwater City Attorney, Magnuson Law Firm, Suite 202 333 North Main Street, Stillwater, MN 55082 (for respondent)

 

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of third-degree DWI, arguing that the district court erred in concluding that Minn. Stat. § 169.69 regarding mufflers is not unconstitutionally vague.  Appellant also asserts that the district court erred in concluding that there was reasonable suspicion to stop him for violating the statute.  Because the statute clearly applies to appellant’s conduct as found by the district court, and the district court’s findings are not clearly erroneous, we affirm.

FACTS

 

            State Troopers Jay Swanson and Curt Thurmes stopped appellant David Paul Babcock for a suspected violation of Minn. Stat. § 169.69 (2004), which governs mufflers and noise emitted by motor vehicles.  As a result of the stop, Trooper Thurmes determined that Babcock was driving while intoxicated, and he was charged accordingly.

            Babcock moved to suppress evidence of his intoxication, arguing that Minn. Stat. § 169.69 is unconstitutionally vague and that there was no reasonable suspicion for the stop.  At the omnibus hearing, both Swanson and Thurmes testified.  Swanson testified that he heard Babcock’s motorcycle before he saw it, and he “heard a very loud motorcycle with exhaust that was popping and crackling and not blending the exhaust noise into the overall vehicle noise.”  Swanson testified that Babcock’s motorcycle was so loud that Swanson initially did not think the motorcycle had a muffler.  Thurmes testified that the noise from Babcock’s motorcycle was a “loud popping, cracking, or . . . barking type of noise” and that it was an “extremely loud sharp noise.”  The officers were cross-examined on the fact that Thurmes’s written report of the incident stated only “loud exhaust” under his initial observation, and nothing was used to measure the sound of the motorcycle.  On redirect, Thurmes testified that he wrote “loud exhaust” because “that’s what the statute states, ‘loud exhaust.’  The speed statute says ‘speed’ and there’s very many different ways you can measure the speed, but you write ‘speed.’” 

            Mark Wang, a motorcycle mechanic, testified that he worked on Babcock’s motorcycle, including the exhaust system, in February 2003, and after the repairs, the muffler was in good working condition.[1]  Mark Young, a friend of Babcock who is familiar with Babcock’s motorcycle, testified that he picked up Babcock’s motorcycle from Wang’s shop, that he saw Babcock’s motorcycle a few days prior to the day Babcock was stopped, and that the exhaust system sounded the same as when he picked it up at Wang’s shop.  State Trooper Scott Rudeen testified that he ticketed Babcock for speeding approximately three months before Babcock was stopped by Swanson and Thurmes but did not ticket him for a loud muffler at that time.  Babcock testified that the exhaust and muffler systems on his motorcycle were in “exceptionally good working order” on the day of the stop and were not making a popping or cracking sound.  He testified that he has never received a citation for loud exhaust on his motorcycle and that Trooper Rudeen had not said that it was loud when Rudeen stopped him for speeding.

            The district court determined Swanson’s and Thurmes’s testimony was credible and that Babcock’s witnesses were not persuasive because none of them had personal knowledge of the noise Babcock’s motorcycle emitted on the day of the stop.  Based on the troopers’ testimony, the district court found that Babcock’s motorcycle “was emitting sharp popping, crackling and/or barking sounds and that the motorcycle’s exhaust noise was distinct from, and not blended into, the overall noise of the motorcycle’s operation.”  The district court concluded that “the officers had a reasonable and articulable belief that [Babcock] was operating his motorcycle in violation of M.S. 169.69 and that therefore the stop of his vehicle was legally permissible.”  The district court also concluded that “a person of common knowledge, intelligence, and experience can easily determine when the noise from a muffler or exhaust system does not blend into the overall vehicle noise or produces a sharp popping or crackling sound” and that Babcock did not meet his burden of proving section 169.69 unconstitutional.  The district court denied Babcock’s motion to suppress.  Babcock stipulated to certain facts and submitted the case to the district court as a Lothenbach proceeding.  The district court found Babcock guilty of third-degree DWI, and this appeal followed.

D E C I S I O N

 

            Babcock asserts that Minn. Stat. § 169.69 is unconstitutionally vague.  A defendant may not successfully challenge a statute as unconstitutionally vague if the statute clearly applies to the defendant’s alleged conduct.  State v. Grube, 531 N.W.2d 484, 490 (Minn. 1995).  An appellant must demonstrate that the statute lacked specificity as to his own behavior rather than some hypothetical situation involving an average citizen.  Ruzic v. Comm'r of Pub. Safety, 455 N.W.2d 89, 92 (Minn. App. 1990), review denied (Minn. June 26, 1990).  For this reason, we first examine whether the statute clearly applies to Babcock’s alleged conduct and the sufficiency of the evidence supporting the district court’s findings about Babcock’s conduct.

            Minn. Stat. § 169.69 (2004) provides in relevant part:

Every motor vehicle shall at all times be equipped with a muffler in good working order which blends the exhaust noise into the overall vehicle noise and is in constant operation to prevent excessive or unusual noise, and no person shall use a muffler cutout, bypass, or similar device upon a motor vehicle on a street or highway.  The exhaust system shall not emit or produce a sharp popping or crackling sound.

 

            Babcock asserts that the troopers did not have reasonable suspicion to stop him for violating Minn. Stat. § 169.69.  The legality of an investigative stop and reasonable suspicion are questions of law subject to de novo review.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  This court “review[s] findings of fact for clear error, giving due weight to the inferences drawn from those facts by the district court.”  Id. (quotation omitted). 

Generally, officers may conduct investigative stops so long as they have a particularized and objective basis for suspecting criminal activity.  State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999).  Under the Fourth Amendment, a police officer may conduct a limited stop to investigate suspected criminal activity if the officer can point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.”  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)) (quotation marks omitted).  While the stop must not be “the product of mere whim, caprice, or idle curiosity,”  id. at 921, the factual basis required to support an investigatory stop is minimal, see State v. McKinley, 305 Minn. 297, 300, 232 N.W.2d 906, 909 (1975) (adopting the Terry standard that a police officer only needs to observed unusual conduct which leads the officer to believe that criminal activity may be taking place to support and investigatory stop).  “[I]f an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.”  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  Additionally, “[a]n actual violation of the Vehicle and Traffic Law need not be detectable.”  Marben v. State, 294 N.W.2d 697, 699 (Minn. 1980) (quotation omitted). 

            In this case, the district court credited the testimony of Swanson and Thurmes and found that Babcock’s motorcycle “was emitting sharp popping, crackling and/or barking sounds and that the motorcycle’s exhaust noise was distinct from, and not blended into, the overall noise of the motorcycle’s operation.”  This court shows great deference to a fact finder’s determinations of witness credibility.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130 (1993).  It is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the fact finder.  State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997).  Because Swanson testified that Babcock’s motorcycle made “popping and crackling” sounds but did not testify that the sounds were “distinct and sharp,” the district court erred when it found that Swanson “testified that the motorcycle emitted distinct and sharp popping and crackling sounds.”  However, this misstatement is not reversible error because Thurmes testified that the sound was an “extremely loud sharp noise”; therefore, the district court’s conclusion that Babcock’s motorcycle “emitted sharp popping, crackling and/or barking sounds” is supported by the record and is not clearly erroneous.  Because we accept the credibility determinations of the district court, the evidence supports the findings of fact, and the statute clearly applies to the noise made by Babcock’s motorcycle.

            This case is distinguishable from State v. Bender, 381 N.W.2d 896 (Minn. App. 1986), cited by Babcock for the proposition that loud exhaust does not justify a traffic stop.  In Bender, the district court granted Bender’s motion to suppress evidence that resulted from a stop based on “loud exhaust.”  Id. at 897.  This court affirmed, noting that the officer did not articulate any basis for suspecting that Bender had violated a traffic law or was involved in some other criminal behavior: “[t]he officer did not ticket respondent for a defective muffler or even testify that the level of noise would have constituted a violation.”  Id. at 898.  In this case, the troopers clearly testified that Babcock’s suspected violation of section 169.69 was the reason for the stop.         

            Based on the findings in this case, Minn. Stat. § 169.69 was constitutionally applied to Babcock, and the district court did not err in determining that the troopers had reasonable suspicion to believe that Babcock was violating the statute.  Because the statute does not lack specificity as to Babcock’s conduct, his argument that the language in the statute is unconstitutionally vague is without merit.

            Babcock moved to strike portions of the state’s appellate brief, claiming that the state made arguments not raised in district court and asserted facts not in evidence.  It is clear that the state’s brief is based on the record established at the hearing.  The challenged portion is based on Wang’s testimony.  Because the state’s brief is based on the record and does not raise new issues, Babcock’s motion to strike is denied.

            Affirmed; motion denied.