Tuesday, May 17, 2011

DWI Appeal - Minnesota Stop for Cracked Windshield OK'd

In State of Minnesota v. Oliveros, --- N.W.2d ----, 2011 WL 1833057 (Minn.App.) the defendant argued that his stop was illegal because she was stopped for a windshield that was cracked but did not impair her vision. Such a windshield was not illegal. Officer Anselment stopped Oliveros's vehicle after observing that her windshield was cracked, believing it was in violation of Minn.Stat. § 169.71, subd. 1(1) (2008), which states that “[a] person shall not drive or operate any motor vehicle with a windshield cracked or discolored to an extent to limit or obstruct proper vision.” Oliveros contends that her windshield was cracked but that the crack did not obstruct her vision. She contends that because she was not cited for violating this statute and because Officer Anselment could not articulate at her omnibus hearing whether she had violated both elements of the statute, the stop of her vehicle was unlawful. The district court found that:

There was no testimony [at the omnibus hearing] on the specifics of the crack that Officer Anselment observed in the windshield except that it was noticeable while traveling behind [Oliveros's] vehicle. Officer Anselment did not describe the crack in the windshield because he could not remember where the crack was at the time of the contested hearing almost six months after the incident. In the Statement of Probable Cause attached to the complaint and the Application for Judicial Determination of Probable Cause to Detain An Adult, it was described as a “large crack in the windshield of the vehicle.”
On appeal, the court differentiated the facts herein from a prior case where a stop for 3 headlamps on a motorcycle was found invalid when it turned out that the other 2 lamps, being auxiliary lamps, were not illegal:

"Oliveros argues vigorously that Office Anselment did not have a reasonable, articulable suspicion to stop her because, although he could see a cracked windshield, he could not tell from the outside if it actually impaired her vision. Oliveros cites George as support. State v. George, 557 N.W.2d 575 (Minn.1997). There, an investigatory stop was held to be unlawful because there was no violation of an equipment law, even though the officer thought that there was. Id. at 578–79. The officer suspected an equipment violation, but this suspicion was wrong. The officer testified that it was a violation to have three headlights on a motorcycle. George did not have three headlights on his motorcycle, he had one headlight and two permissible “auxiliary passing lamps.” Id. at 578. The headlight configuration would have been easily visible to the naked eye. The differences between George and the present case are multiple.

First, the Minnesota Supreme Court stated that George's headlight configuration “clearly conformed to Minnesota law.” Id. at 576. Appellant's cracked windshield does not clearly conform to any Minnesota law."

Second, in George, the supreme court took note of the trial court's finding that the stop was “no doubt ... a pretext stop in that the officer's intention was to seek a consensual search of [George's] motorcycle and belongings.”

Finally, the suspected headlight-configuration violation in George was a technical equipment violation. In forming articulable suspicion, police officers may draw on their experience and training. See generally State v. Harris, 590 N.W.2d 90, 99 (Minn.1999) (stating that police “may draw inferences and deductions that might elude an untrained person” (quotation omitted)); State v. Capers, 451 N.W.2d 367, 371 (Minn.App.1990) (noting that officer's experience weighs heavily in determining articulable suspicion), review denied (Minn. Apr. 25, 1990). But the consequence of this in George was that the police hunch had to be right. See George, 557 N.W.2d at 579 (holding that because state law clearly permitted the motorcycle lighting configuration, “[t]here was no objective basis in the law for the trooper to reasonably suspect” a violation).

George implies a police duty to know the law. See also State v. Anderson, 683 N.W.2d 818, 823–24 (Minn.2004) (holding that officer's “mistaken interpretation of a statute” cannot provide suspicion justifying a stop). It does not require police to conduct a factual investigation, which in this case would have been impossible, to confirm their suspicions before conducting a stop. The very purpose of an investigative stop is to allow for further investigation. See generally Wilkes v. Comm'r of Pub. Safety, 777 N.W.2d 239, 244–45 (Minn.App.2010) (noting police may conduct a stop to “make reasonable inquiries”).

Appellant's contention that both the cracked windshield and the impairment of the driver's vision had to be seen at the same time to justify the stop would gut the law, virtually ending enforcement of the prohibition against the dangerous combination of a cracked windshield and driver vision impairment."

Thus, the appeals court concluded that this stop was valid. On the other hand, the dissent offered a vigorously opposing point of view:

The stop here was based on the officer's incorrect belief that a cracked windshield alone was a violation of the law. The stop, the arrest, the charges, and the state's case-in-chief at the omnibus hearing were premised on the incorrect notion that a cracked windshield per se violates the law. Even on appeal, the state maintains that erroneous belief in its brief: “Unlike the officer in George, Officer Anselment had an objective legal basis for suspecting that appellant was in violation of a traffic law. After all, a cracked windshield is a violation of Minnesota law. Therefore, State v. George is distinguishable and not similar in facts. ” (Emphasis added.)

The majority here goes astray in three ways. First, in attempting to distinguish George, the majority contends that, in that case, the officer misapprehended the law and there was no statutory prohibition against three headlights. But here, according to the majority, there was a violation of the law. In that conclusion, the majority begs the question. It assumes that which has not been shown by the evidence, namely, that the crack was of such an extent that it limited or obstructed Oliveros's vision. Furthermore, Officer Anselment also misapprehended the law for, as he testified, his sole basis for the stop was his belief that a cracked windshield per se violates the law. Thus, this case is not distinguishable from George.

The majority's second error is its unwarranted reliance on the unpublished decision in State v. Wright, No. C4–94–898, 1995 WL 81382 (Minn.App. Feb. 28, 1995), review denied (Minn. Apr. 18, 1995). As an unpublished case, Wright has no authoritative or persuasive value here. Additionally, the facts in Wright are not sufficiently developed to show a reliable similarity to this case. The factual issue there appeared to be one of credibility relating to an alleged pretextual traffic stop. We have no credibility issues here. Oliveros agrees that Officer Anselment testified honestly and accurately about the stop. Oliveros does not contend that the stop was pretextual and, at least implicitly, concedes that Officer Anselment was at all times acting in good faith and with an honestly held belief that a cracked windshield violated the law.

Of particularly serious concern is the majority's apparent acceptance of the statement in Wright that it is proper for an officer to make “an investigatory stop to determine whether the crack obstructed proper vision had a particularized and objective basis.” Id. at *1. The proposition the majority appears to endorse is that, if a law-enforcement officer observes a cracked windshield but is not able to conclude that the crack violates the second condition of the statute, the officer may stop the vehicle and then develop an articulable, objective basis for the stop. At least as to cracked windshields, the majority would seem to condone a stop on some evidence (an observed crack) coupled with a hunch (that the crack might violate the law). But, as the majority notes, “an officer may, consistent with the Fourth Amendment, conduct a brief investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675–76 (2000). The “reasonable, articulable suspicion” must precede the stop because without it the stop is not justified. A cracked windshield alone can never justify a brief, investigatory stop because it simply provides no basis for a belief that “criminal activity is afoot.”

Finally, the majority—as well as the state and the district court—appears to give credit to the officer's belief that “he could have cited Oliveros for a cracked windshield.” That is not a fact that deserves credit in assessing the validity of this stop because Officer Anselment was incorrect in his belief that he could issue a citation merely for a cracked windshield.

The state failed to show that Officer Anselment had a reasonable, articulable suspicion that Oliveros was in violation of the law when he stopped her car, and the district court clearly erred when it speculated that the essential second condition of the statute was satisfied, despite the lack of any evidence whatsoever addressing that condition. The majority now perpetuates the district court's error, and I would reverse.

EDITORS NOTE: If an officer mistakenly believes that standard auxiliary equipment violates state law (because he thought they were headlights instead of auxiliary lights) then a stop can be illegal. But if an officer mistakenly believes that pine tree freshener is illegal even if it does not obstruct a driver's view, then the stop is lawful. Seems difficult to rationally explain under that analysis, so both appear to be mistake of fact scenarios. It is also interesting that, in Minnesota, apparently a 'pretext stop' could be unlawful even if there was otherwise a valid basis for a stop, contrary to federal rulings...

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