This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-933

 

 

State of Minnesota,

Respondent,

 

vs.

 

Wayne Allen Johnson,

Appellant.

 

 

Filed June 12, 2007

Affirmed

Lansing, Judge

 

Kandiyohi County District Court

File No. CR-05-425

 

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

 

Boyd Beccue, Kandiyohi County Attorney, Stephen Wentzell, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)

 

John Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On stipulated facts, following denial of a suppression motion, the district court found Wayne Johnson guilty of driving after cancellation as inimical to public safety.  In this appeal from conviction and sentencing, Johnson challenges the constitutionality of a deputy sheriff’s investigatory stop.  Because the deputy had a particularized and objective basis to believe that Johnson was violating a traffic law by exceeding the speed limit, we affirm.

F A C T S

A Kandiyohi County deputy sheriff observed a car on County Road 116 that was traveling “quite fast.”  County Road 116 is a gravel roadway that has a speed limit of 55 m.p.h.  The officer turned onto County Road 116 and followed the car to gauge its speed by using a technique that he described as “pacing.”  The deputy attempted to maintain a constant interval behind the car, first with his squad car’s speedometer at 55 m.p.h., then at 60 m.p.h., and finally at 65 m.p.h.  At each of these speed levels, the interval increased and the car “continue[d] to pull away” from the squad. 

Based on his experience in visually estimating the speed of moving vehicles and the results of “pacing” the car, the deputy estimated that the car was traveling at a rate exceeding 65 m.p.h. in a 55 m.p.h. zone.  He turned on the squad’s emergency lights and stopped the car. 

The deputy told the driver, Wayne Johnson, that he had paced Johnson’s car at 65 m.p.h.  Johnson said that he did not believe that he had been driving that fast because his cruise control was set at 62 m.p.h.  After checking the status of Johnson’s driving privileges, the deputy learned that Johnson’s license had been cancelled as inimical to public safety.  The deputy issued Johnson a citation for driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2004), and speeding in violation of Minn. Stat. § 169.14, subd. 2(a)(3) (2004). 

Following an omnibus hearing at which Johnson challenged the validity of the stop, the district court found that the deputy had a reasonable, articulable basis for believing that Johnson was exceeding the speed limit and denied his suppression motion.  Johnson and the state submitted the driving-after-cancellation charge to the court on stipulated facts, and the state dismissed the speeding charge. 

The district court found Johnson guilty of driving after cancellation, and Johnson appeals.  He raises the single issue of whether the deputy had a legal basis to stop Johnson’s car in the absence of evidence that the squad’s speedometer was regularly and routinely tested for accuracy. 

D E C I S I O N

The state and federal constitutions protect against unreasonable searches and seizures. U.S. Const. amends. IV, XIV; Minn. Const. art. I, § 10.  An investigatory stop of a vehicle is reasonable if a police officer knows of specific and articulable facts that objectively support a suspicion of criminal activity.  State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004).  The state has the burden of proving that a warrantless stop was reasonable.  State v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004).

If the facts are undisputed, as they are in this case, we review de novo the district court’s determination on the constitutional validity of an investigatory stop.  State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).  Generally, when an officer observes a violation of a traffic law, no matter how insignificant the violation, that observation provides a particularized and objective basis that satisfies the constitutional requirement for the limited detention.  Anderson, 683 N.W.2d at 823.

The district court found that the deputy had a reasonable, articulable basis for stopping Johnson’s car because of the deputy’s visual observation that Johnson was exceeding the speed limit and the confirmation of this observation by “pacing” Johnson’s car.  The record supports the district court’s reliance on both the visual estimate and the “pacing.”

            The deputy testified that he had been a licensed and certified peace officer for eleven years and that he had been trained to visually observe and estimate the speed of vehicles.  His initial field training incorporated the use of a radar gun to check his estimates.  He stated that he continues this method of speed comparisons on a daily basis in his routine patrol work because he estimates the speed of a car before he activates his radar equipment and then uses the radar readings to confirm his accuracy.

            In describing his technique of “pacing” Johnson’s car, the deputy testified that “pacing” was also part of his initial training.  He applied the method learned in his training and attempted to maintain an interval of approximately a mile or less between Johnson’s car and the squad.  He continued the pacing for a distance of four to five miles.  The deputy testified that he did not have a record of speedometer tests on his squad car.  He stated that he obtained the car new in August 2003, and the speedometer was certified at that time.  He did not believe that the speedometer had been checked in the nineteen months between the purchase of the squad and when he stopped Johnson’s car, but he said that his supervising sergeant maintained those records.

            Based on both his estimate of Johnson’s speed and the “pacing” of Johnson’s car, the deputy believed that Johnson was traveling “[f]aster than 65 miles an hour.”  The district court accepted this testimony and determined that the state had demonstrated a particularized and objective basis for the traffic stop. 

            Johnson challenges the legal sufficiency of the district court’s determination.  See Minn. Stat. § 169.14, subd. 9 (2004) (providing that speedometer must be “regularly and routinely tested for accuracy and a record of the results of said tests kept on file”).  For four reasons we conclude that Johnson’s claim of legal insufficiency cannot invalidate the district court’s findings.

            First, section 169.14, subdivision 9, prescribes an evidentiary standard for the admissibility of evidence relating to the speed of motor vehicles.  But Johnson did not object to the admissibility or the adequacy of the foundation for the deputy’s “pacing” testimony at the omnibus hearing.  And he has not argued that the admission was plain error.  See State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002) (stating that, absent plain error, defendant’s failure to object to evidentiary error at trial waives right to raise it on review). 

            Second, the deputy based his opinion of Johnson’s speed not only on “pacing,” but also on his observation of the movement of the car over a distance of four to five miles.  The deputy testified that following his initial training in speed estimation, he applied this training and checked his ability against speeds determined by radar daily.  See State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (requiring totality-of-circumstances review, which includes giving “due regard to an officer’s training and experience in law enforcement); Sazenski v. Comm’r of Pub. Safety, 368 N.W.2d 408, 409 (Minn. App. 1985) (holding that visual estimation of speed “amply supports the trial court’s determination that the stop was proper”).  

            Third, the deputy’s testimony about the speed of Johnson’s car was provided as a basis for the deputy’s reasonable, articulable suspicion that Johnson was violating a traffic law.  The evidence of Johnson’s rate of speed was not admitted to establish beyond a reasonable doubt that Johnson was exceeding a posted speed limit. 

            And fourth, the evidence at the omnibus hearing included Johnson’s statement to the deputy that Johnson’s cruise control was set at 62 m.p.h.  Because the speed limit was 55 m.p.h., this undisputed evidence bolsters the objective reasonableness of the deputy’s belief that Johnson was violating a traffic law as he drove on County Road 116.

            The evidence supports the district court’s determination that the deputy had a particularized and objective basis to stop Johnson.  The district court did not err in denying Johnson’s motion to suppress the evidence that he was driving after the cancellation of his driver’s license. 

            Affirmed.