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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DUI Appeal - Pennsylvania - Dice, Fresheners and Reasonable Suspicion

In Commonwealth v. Shabazz, --- A.3d ----, 2011 WL 1459160 (Pa.Super.), 2011 PA Super 81, the defendant appealed the denial of his motion to suppress based upon an illegal stop. The driver claimed that the stop of his vehicle for having foam dice and pine tree air fresheners was illegal. The appeals court first noted that in Pennsylvania, it is only illegal to have items hanging from the rearview mirror when they materially obstruct the driver's view. The defendant in fact cited to a prior Pennsylvania decision where it was held that the stop of a driver who had pine tree air fresheners was illegal, as there was no reasonalbe suspicion of a violation of the statute.

Distinguishing that prior ruling, the appeals court here held that the reason that the prior decision was in favor of the defendant was not based upon the item that was hanging from the mirror - rather the previous case was held in favor of an illegal stop based "on the officer's lack of an articulable and particularized description of the objects he observed hanging from the rearview mirror, and the impact of those objects on the visibility through the windshield." When addressing items hung from a rearview mirror, the court held that “the arresting officer's observations must establish not merely the presence of an object hanging from the rearview mirror, but must raise reasonable suspicion that the object materially obscured, obstructed or impaired the driver's vision through the front windshield.”

The appeals court then enunciated some important principles of law regarding the determination of reasonable suspicion at a hearing on a motion to suppress:

"The determination of whether an officer had reasonable suspicion that criminality was afoot so as to justify an investigatory detention is an objective one, which must be considered in light of the totality of the circumstances. It is the duty of the suppression court to independently evaluate whether, under the particular facts of a case, an objectively reasonable police officer would have reasonably suspected criminal activity was afoot. * * * “[I]n order to establish reasonable suspicion, an officer must articulate specific facts in addition to inferences based on those facts, to support his belief that criminal activity was afoot.” (emphasis in original). Thus, the facts must be testified to in support of the reasonableness of the officer's suspicion occasioned by his or her pre-stop observations."

In regard to forcing an officer to actually articulate a basis for reasonable suspicion, the Court made significant observation:

"Were this Court to conclude that an officer's bare testimony that he saw an object hanging from a rearview mirror which obstructed the driver's view, without any additional testimony or other evidence supporting the officer's conclusion that the object materially obstructed the driver's view, was sufficient to demonstrate reasonable suspicion to constitutionally support the intrusion of a vehicle stop, we would obviate the suppression court's role in ensuring there is an objectively reasonable basis for the vehicle stop, and expose every law-abiding motorist who hangs an object from his or her rearview mirror to a potentially unwarranted intrusion."

In the case sub judice, the appeals court found that the officer had sufficiently articulated the size of the objects and their location on the mirror in order to justify the stop of this vehicle. Thus the denial of the motion to suppress was affirmed.


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DUI Appeal -Oregon DUII Cracked Windshield Stop Challenged

In State of Oregon v. Elmore, --- P.3d ----, 2011 WL 891677 (Or.App.) the defendant entered a conditional plea of guilty reserving the right to appeal the denial of his motion to suppress challenging the stop of his car. At the motion to suppress, the following facts and testimony was adduced:

On the morning of June 4, 2007, Deputy Cochran saw defendant driving his vehicle on a highway. Cochran testified that he noticed “a large crack in the windshield, which is a violation of statute, and so I pulled him over for that.” Defendant testified that the crack “starts * * * on the driver's side four inches up from the bottom of the windshield. And then it progressively goes to the passenger side heading down towards the bottom of the windshield.” According to defendant, the crack was “18 inches to two feet” long. When Cochran was asked how “a crack like that [would] obstruct the vision either into or out of the vehicle,” he testified:

“[I]t depends. Some people drive around with big spiderwebs, that wasn't what this case was, you know, that would be more apparent. But anything as simple as one line, it may be in your direction of vision, it may be on the side of the window where you're looking through as you're turning or something like that. Another problem is because I had a cracked windshield with just one line that was cracked from a baseball game, is that cracked windshield will act like, sometimes like a prism with that crack and you get cracked glass and when the sunlight shines through it it will, you know, glint and glare off of that crack which is distracting.”

The applicable Oregon statute prohibits driving a vehicle when the windshield is obstructed by “any material that prohibits or impairs the ability to see into or out of the vehicle * * *. This subsection applies to any sign, poster, one-way glass, adhesive film, glaze application or other material if the material prohibits or impairs the ability to see into or out of the vehicle.”

At the suppression hearing, defendant's attorney argued that, under that statute, a crack is not a “material that prohibits or impairs the ability to see into or out of the vehicle.” On appeal, the court agreed:

“Material,” in the context of ORS 815.220(2), unambiguously connotes something that has physical substance for two reasons. First, a physical substance is something that, in the terms of the statute, may be “ upon any vehicle window.” ORS 815.220(2) (emphasis added). Second, the statute itself refers to particular items that constitute “material”- viz., “any sign, poster, one-way glass, adhesive film, glaze application”-all of which are things of physical substance. Id.

Applying that construction to this case, we readily conclude that a crack is not a “material.” As defendant posits, “a crack is not a tangible or physical object separate from the window itself. It does not have its own substance beyond pure window glass.” Here, the deputy stopped defendant because he saw a crack in defendant's windshield. Accordingly, because the facts, as the deputy actually perceived them, did not satisfy the elements of ORS 815.220(2), he lacked objective probable cause to stop defendant.

On appeal, the State also tried to argue that, even if the officer's reliance on that statute was wrong, there were alternative statutes that justified the stop. Refusing to allow the alternative bases, the appeals court said:

"[W]e decline to address the state's alternative contention. The state's argument in the trial court focused exclusively on ORS 815.220-that is, the state did not point to any of the statutes that it now raises on appeal. Had the state attempted to rely on those statutes in the trial court, defendant might well have developed the record differently. See Tiffin, 202 Or.App. at 202 (declining to address the state's alternative “argument that the stop was lawful based on the officers' reasonable suspicion that defendant was driving under the influence because the state did not make that argument to the trial court”; reasoning that, “[h]ad the state done so, defendant might have developed a different record below”).

NOTE: this appeal is good for 2 reasons - the interpretation of the statute was not bent to support the stop itself, and the State was prohibited from its last-ditch attempt to argue alternative means for the stop that were not raised at a time when the defense could have argued against them. It is nice to see a court enforcing appropriate rules of procedure even-handedly.


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