Opinion
No. C7-00-632.
Filed October 31, 2000.
Appeal from the District Court, Swift County, File No. C5-00-28.
Neil R. Tangen, (for appellant)
Michael Hatch, Attorney General, Michael R. Pahl, Assistant Attorney General, (for respondent).
Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges the revocation of his driver's license, arguing that the officer who stopped him after seeing him riding his snowmobile in the ditch on the wrong side of the road lacked a particularized and objective basis for the stop. Because we conclude that the basis of the stop was adequate, we affirm.
FACTS
At approximately 12:15 a.m., Officer Nancy Dosdall was traveling east in her squad car when she observed a snowmobile also going east in the ditch on the left side of the road. Dosdall believed that snowmobiles operating at night were required to use ditches on the right side of roads, but before acting on that belief, she checked by communicating with a Department of Natural Resources (DNR) officer. She asked, "Snowmobiling at this time of night, you're supposed to be on the same side of the road, going with the traffic?" and he replied, "[I]f you're within the road right-of-way."
Testimony on what happened after Dosdall spoke to the DNR officer conflicts. Appellant James Moist, the driver of the snowmobile, says that two events occurred simultaneously: he stopped his snowmobile because of oncoming traffic and Dosdall, with the red lights on the squad car activated, pulled in front of him to stop him. Conversely, Dosdall says that she approached appellant without activating her lights after he had stopped his snowmobile and while he was waving to her. There is no dispute, however, that Dosdall asked appellant if he had been drinking, that he replied that he had been, that she asked him to submit to an intoxilyzer test, and that he refused the test. Appellant's driving privileges were then summarily revoked.
After an implied consent hearing, the district court sustained the revocation. Appellant now challenges the revocation, contending that Dosdall did not have a particularized and objective basis to stop him.
Appellant also contends that his due process rights were violated because the assistant attorney general "interfered with" the appearance of one of appellant's witnesses, an employee of the Department of Transportation (DOT). Because appellant raises this issue for the first time on appeal, it is not properly before this court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court may consider only those issues presented to and considered by the district court). Moreover, appellant's attorney made no offer of proof for this witness and did not seek a continuance so the witness could be available; instead, he asked the district court to hold the assistant attorney general in contempt. Even if the witness's absence did provide a basis for holding the assistant attorney general in contempt, it provides no basis for reversing the revocation of appellant's driving license.
DECISION
When an appellate court reviews a stop based on given facts, the test is not whether the trial court decision is clearly erroneous, but whether, as a matter of law, the basis of the stop was adequate. Berge v. Commissioner of Pub. Safety , 374 N.W.2d 730, 732 (Minn. 1985). Here, the basis of the stop was that appellant was driving in the ditch on the left side of the road, against the traffic. Minn. Stat. § 84.87, subd. 1(a) (1998), forbids operation of snowmobiles at night "except on the right-hand side of such right-of-way and in the same direction as the highway traffic on the nearest lane * * *."
When the law requires a certain type of vehicle to travel on the right, and an officer sees a vehicle of that type traveling on the left, the officer has objective support (more than a mere hunch) for his belief that the person is involved in criminal activity. See State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989) (holding that a hunch is not sufficient as that an officer must have objective support for his suspicion) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585 (1989)). Appellant's snowmobile traveling on the left was objective support for Dosdall's belief that appellant was engaged in criminal activity. Dosdall's act in checking the accuracy of her knowledge of the law governing snowmobiles provided additional support.
Appellant relies on another statute and on an interchange between Dosdall and the DNR officer to argue that Dosdall lacked an adequate basis for the stop. Minn. Stat. § 84.87, subd. 3 (1998), provides that a county board may permit the operation of snowmobiles in ditches on the left side of a road if safe operation on the right side is impossible. The DNR officer told Dosdall that, "If [appellant's] on the bridge there, there's snow on one side, not on the other, but if that's not the case, he'd be on the wrong side," and Dosdall replied, "Yeah, nobody's gone on * * * the south side of the bridge."
Appellant's argument implies that Dosdall had an obligation to investigate the possibility of driving a snowmobile in the ditch on the south, or right, side of the road before stopping appellant for driving in the ditch on the north, or left, side. But appellant provides no support for the view that an officer must fully investigate the feasibility of alternative conduct before making a stop.
Appellant's argument also implies that, if Dosdall was aware that no one had been driving snowmobiles in the ditch on the south side of the road, she should have known that appellant was not violating the law by driving his snowmobile on the north side. Again, appellant offers no support for the view that an officer must investigate all possible circumstances of other conduct before making a stop.
Finally, appellant relies on State v. George, 557 N.W.2d 575 (Minn. 1997). George concerned a motorcycle equipped with one headlight and two auxiliary passing lamps in conformity with Minn. Stat. § 169.49, (1996), restricting motorcycles to two headlights, and Minn. Stat. § 169.56, subd. 4, (1996), restricting motorcycles to two auxiliary lamps mounted on the front. The motorcycle was stopped by a state patrol officer who believed it had three headlights in violation of Minn. Stat. § 169.49. The district court noted, however, that the motorcycle was stopped en route to a rally and that "the state patrol had initiated a program targeting motorcycle riders" traveling to or from the rally. Id. at 577.
Appellant's reliance on George is misplaced. First, the George holding is specifically restricted to the facts of that case." On these facts, we hold that [the officer] did not have an objective legal basis for suspecting that George was driving his motorcycle in violation of any motor vehicle law * * *." Id. at 578 (emphasis added). Second, appellant mischaracterizes the George holding: George does not hold that no stop is permissible unless there is absolute certainty that the individual stopped is violating the law. Such a holding would overrule longstanding Supreme Court and Minnesota Supreme Court law, see, e.g., Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585; United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695 (1981); Johnson, 444 N.W.2d at 825-26; Berge, 374 N.W.2d at 732; State v. Pleas, 329 N.W.2d 329 (Minn. 1983); State v. Barber, 308 Minn. 204, 241 N.W.2d 476 (1976). All are cited in George to support the general principle that an officer may make a stop if there is an objective basis for that stop. George, 557 N.W.2d at 578. George does not claim to overrule this solid line of caselaw.
We conclude that appellant was lawfully stopped on particularized and objective grounds.
Affirmed.
I concur in the result because, as the majority opinion correctly notes, the appellant was lawfully stopped on particularized and objective grounds.
I write separately because of some deeply disturbing aspects of this case.
The state admits in its brief, and at oral argument, that trial counsel for the State of Minnesota wrongfully interfered with a witness subpoenaed by appellant by instructing the witness, at least indirectly, not to appear.
The proper remedy here should have been a continuance. Yet counsel for the state on appeal asserts in two separate places in its brief that appellant should have requested a continuance when this error surfaced but then admits at oral argument that the state does not know if a request for a continuance was, in fact, made (and appellant is emphatic that such a request was indeed made).
As appellate counsel for the state has accurately pointed out, there is no evidence that the actions of the state at trial were in bad faith. Further, there are wonderful technical arguments to be made as to why we can, and should, ignore these failings. No adequate record of the request for a continuance exists, there is persuasive evidence that the testimony at issue would not have mattered, appellant made no offer of proof, and one or more of these issues was not properly raised before this court.
The state's interests on appeal were represented by counsel who did not handle the district court proceedings at issue here.
But we have entrusted to the State of Minnesota enormous authority, power if you will, with regard to licensing matters. With that power comes responsibility, and it is not at all certain that a tardy and grudging acknowledgement by the state of error represents a proper fulfillment of that responsibility.
Regardless of what appellant did or did not do, and regardless of what the district court did or did not do, it is puzzling to me that the state did not immediately offer to continue the matter because of the subpoena error.
I concur in the result only because I am persuaded, as a matter of law, that the actions of the state did not influence the outcome.