An officer observed a man in the driver’s seat of a running car with a garden hose extending from the exhaust pipe to the passenger window. The court finds the officer had probable cause to approach the car and make a DWI/DUI arrest because the  driver was in physical control of the car while under the influence.   Osowski   v.   Commissioner, A08-0875   (Ct. App. Unpubl.  05/19/09)

Criminal/ Waiver of Court

During a search warrant, the defendant asked to speak to his attorney.  The officer explained to the defendant that he couldn’t speak to his attorney at the arrest site and would have to wait until he was booked into jail. At that point the defendant said, “I’ll speak to you” and gave a recorded statement.  The Court finds the defendant waived his right to counsel and the officer made no error in admitting the defendant’s statement into evidence. State  v.  Rockett, A08-0286 (Ct. App.  Unpubl.  05/10/09)

DWI/DUI – Intoxilyzer Source Code

The Court finds that the District Court erred in refusing to order the disclosure of the Intoxilyzer source code where the petitioner/defendant submitted  documents from an expert witness. The Court finds that the information submitted to the District Court shows “that the source code used in a breath-test machine is capable of bearing on the accuracy of and reliability of test results produced by the machine.”  Abbott v.   Comm. 760 N.W.  2d 920  (MInn.  App  2009)  Bowen  v.  Commissioner,  A08-1267  (Ct  App.  Unpbl.  05/12/09)

DWI/DUI  Intoxilyzer Source Code

The Court finds that the District court abused its discretion by denying the driver’s request for discovery of the Intoxilyzer source code where the petitioner/defendant submitted affidavits generally demonstrating the possible problems with the source code of the Intoxilyzer.  Thompson   v.   Commissioner, A08-1240  (Ct.  App. Unpubl.  05/26/09)

DWI/DUI  Test Refusal Statutue

The Court decided that an officer was allowed to request a breath alcohol test of the defendant on the exigent circumstances  exception to the warrant requirement and therefore affirms the defendant’s DWI/DUI test refusal conviction, finding no viiolation of the defendant’s right to be free of unreasonable searches and seizures.   State   v.  Scofield, A08-1067  (Ct App. Unpbl. 05/26/09)

Criminal- Stop for Noise Complaint

Police were called for a noise complaint at about 1:00 a.m. and saw the defendant and two others standing in front of the residence. When the men saw the officer they began to run although the officer asked them to stop.  The Court finds the officer’s arrest was warranted because running away added to the suspicion .  State  v.  Karras, Jr., A07-1528  (Ct App. Unpubl.  03/03/09)

Criminal/ Traffic  Atv on Public Road

The Court determines that the offiers properly stopped the defendant for driving an all-terrain vehicle (ATV) on a county road where driving is prohibited.  State  v.  Juelson, A08-0549  (Ct App. Unpubl.  03/03/09)

Criminal/ Expsansion of Stop

During a lawful stop of the defendant’s vehicle for a traffic violation, the officer noticed the defendant was very nervous. Withing one minute the officer received a report of a suspicious vehicle that the officer believed may be the defendant’s vehicle.  The officer asked the defendant to step out of his vehicle. The nervous defendant began giving conflicting answers to questions.  The Court finds that each incremental and minor intrustion into the defendant’s liberty was justified by reasonable articulable suspicion.

Criminal/ Stop-Uncalibrated Radar

The Court finds that an officer had a lawful basis to stop a vehicle based upon receiving a 39 mile per hour reading even though the officer had not calibrated his radar that evening.  Chastek  v.  Commissioner, A08-0803  (Ct App. Unpbl. 03/31/09)

DWI/DUI  Enhancement – Alaska DWI

The defendant’s prior DWI conviction in Alaska that was based on a plea of no contest  was used to enhance the defendant’s current DWI charge to a first degree offense. The Court finds no error and finds the defendant waived his right to counsel.  The Court finds the defendant could not challenge the lack of a factual basis to support the plea and also finds that the license revocation could be used for enhancement. State  v. Skerjance,  A08-0065  (Ct. App. Unpubl.  03/03/09)

DWI/DUI – BCA Report Admissable

The Court agrees with a revocation of driving privileges in finding that a BCa lab report showing the driver’s alcohol concentration was admissable in an implied consent hearing under Minn. Stat 634.15 without violating the confrontation clause.  Hubbard  v.  Commissioner, A08-0714  (Ct App. Unpubl. 03/10/90)

DWI/DUI  PBT Results Admissable

Defendant was charged with first degree driving while impaired and refusal to submit to testing, and his PBT test results were admitted on the test refusal charge. The Court finds no error in admitting the PBT test results on the test refusal charge.  State  v.  Maiers,  A08-0216 (Ct. App. Unpubl. 03/10/09)

DWI/DUI  Refusal by Conduct

Although the officer repeatedly read the implied consent advisory to the defendant, the defendant continually interrupted, yelled, and used expletives.  The defendant stated he wanted his attorney present, yet when the officer asked if he wanted a lawyer, the defendant said, “Leave me alone”.  No breath test was received.  The Court finds the defendant’s behavior constituted a retraction of his request for counsel and a refusal to take the test.  State  V. Gerardy, A07-2161 (Ct. App. Unpubl. 03/17/09)

DWI/DUI  Physical Control – Sleeping

The Court agrees with the defendant’s conviction for DWI where the defendant was found alone, intoxicated and asleep behind the wheel of his vehicle parked in an assigned space in his apartment’s parking lot at 11:30 p.m.  His keys were found on the center console.  State  v.  Fleck, A08-0072  (Ct.  App 03/24/09)

DWI/DUI  PBT Results

Following defendant’s arrest for DWI and test refusal, he was taken to jail where he submitted to a preliminary breath test.  The defendant wanted to admit these test results to show he was not intoxicated at the time of his initial arrest.  The Court finds there was overwhelming evidence of probable cause to make the arrest.  State  v.  Mason, A07-2451  (Ct App. Unpubl. 03/24/09)

Westerham  v.  Commissioner

An officer received a report of a possible intoxicated person sitting in a vehicle in a bar parking lot.  The officer arrived in a crowded lot and parked close to the defendant’s vehicle, making it difficult, but not impossible for the vehicle to be backed out of the parking spot.  The officer did not activate his lights or give any other signal.  The Court affirms the District Court finding that the officer did not seize the driver of the vehicle and sustains the revocation of driving privileges resulting from the incident.

Second Detention

State  v.  Kellum

Defendant was a passenger in a vehicle that had been legally stopped. An officer smelled marijuana in the vehicle and found marijuana on the defendant’s person, and defendant was cited for possession of marijuana. Defendant was evasive when asked if he was staying in a nearby hotel. A key fob for a motel room was found in the squad car where the defendant was sitting.  The Court finds a sufficient articulable  suspicion to justify a brief additional detention to explore defendant’s connection with the motel known from drug activity.

Stop-Suspended Object

State  v.   Wruck

The Court affirms a District Court order finding that an officer saw a suspended object between the driver and the windshield, a radar detector attached to the windshield with suction cups, rejecting defendant’s argument that the officer could not have seen the object.

Requesting ID Not Seizure

State  v.  Pracht

An officer responded to a tip that some individuals were attempting to sell large quantities of new electronic equipment at a store that buys and sells such items. The officer went to the store, approached the defendant who fit the description, requested identification and asked some general questions. The Court finds that this encounter was not a seizure where the officer stood at a socially acceptable distance from the defendant and did not use any course of tone or behavior.

Illegal Seizure-No Suppresion

State  v.   Bettin

Police lawfully stopped a vehicle and arrested the driver.  The Defendant, a passenger. was seized by retaining her identification and her purse.  The Court indicates that this seizure was unlawful.  However, no evidence was recovered as a result of this seizure.  The drug evidence was recovered as a result of the lawful search of the car, independent of the defendant’s seizure.  The defendant’s conviction for fifth degree possission of a controlled substance is affirmed.

Speeding-Officer Opinion

State  v.  Holm

In a DWI case, the defense challenged the basis for the stop, asserting that there was no evidence of the testing of the radar.  The Court acknowledges that the radar evidence may have been inadmissible without the evidence about testing, but finds that the officer’s opinion based upon his training that the vehicle was speeding was sufficient to justify the stop.

Wagner V Comissioner

The court affirms a District court ruling that officers had a valid basis to stop the defendants vehicle for believing that there were no tail lights illuminated after dark in spite of evidence from  a mechanic that on any setting, the lights should be on after dark.  The court finds that where the vehicle had just been in a highly illuminated area just before coming on the highway, that it was possible that the artificail light in the area offset either the observations or the sensor

Search Warrant for home

State V Lanny Green

Defendant was accused of sexual contact with two girls, and the defendants roommate stated that the defendant spent a great deal of time talking with girls. One of the victims stated that defendant had taken pictures of her at bedtime.  The court finds a sufficient basis to support a search warrant to look for pictures relevant to the charges, finding a sufficient nexus between the alleges actions of the defendant and the search warrant.

Authority to COncent

State V Baumgart

Based on information that the defendant had been involved in a single vehicle accident and had gone into a house, the officer contacted the defendant’s brother who was listed with the utility company as an owner/ occupant of the residence.  The brother told the officer that he lived at the residence and allowed a law enforcement officer into the house and to defendants bedroom.  The court finds it was reasonable for the officer to believe the brother had the authority to consent to the warrantless entry.  The search was upheld.

DWI

Probable Cause For Driving

A homeowner reported that at about 1:30am a women had entered his home and appeared to be intoxicated. An unfamiliar vehicle with brush in the grill and damage was parked cross ways in the driveway and partially on a step. A woman with the same last name as the registered owner was found apparently trying to get in another house nearby. The women admitted then denied driving. The court finds the officer had probable cause that the defendant was driving while intoxicated based on a totality of the circumstances in spite of not knowing the precise time of driving.

Articulable suspicion-Informanty

State V Poinsett

An officer received a tip from an individual considered to be a confidential, reliable informant that two men that had just left an apartment complex and were walking on the street might possess narcotics and that one possessed a handgun.  Officers knew that the apartment complex was a site for frequent police calls regarding guns and narcotics and officers saw two men matching the description. The court concludes that the officer had an adequate basis for a seizure.

Handcuffing During Detention

State V Oberg

Officers received information from three individuals that a described vehicle may contain a gin and drugs. There were two officers that stopped a vehicle matching the description., which contained four occupants. The officers removed the individuals one at a time and handcuffed them while they investigated. The court finds that the stop and the handcuffing was a reasonable procedure given the fact that the officers were out numbered and the stop was on a rural road.

Defendants SHoes-warrant needed

State V Desjarlais

When defendant was released from jail, his shoes could not be located.  Two days after the defendant was released, defendant’s shoes were located and were sent to the BCA for testing.  The court affirms a district  court order suppressing the blood evidence from the shoes because the shoes were not abandoned property and the police should have obtained a warrant to seize and test the shoes even though they were in the custody of county officials.

DWI

source code-pretrial appeal

State v Kummer

The District court ordered the state to disclose the source code of the intoxilyzer and the state files this pretrial appeal from the order.  The court finds that the appeal is premature because it is based on an anticipation that the state will not be able to comply and the court will suppress intoxilyzer test results. The state failed to demonstrate actual critical impact from the decision.

Forfeiture-Innocent Owner

Kubus V 2002 Chevorlet Pick up

The court affirms a District court ruling that the vehicle owner, the uncle of the driver, rebutted the presumption of knowledge that the vehicle would be operated unlawfully and properly the return of the vehicle to the owner as an innocent owner.

State V Hoilly

Police officers saw defendant standing with two men outside a building on a cold evening. The defendant showed his open hand to a person in his group and then quickly returned his hand to his pocket.  When defendant saw police, he whistled and the group quickly dispersed.  Officers immediately arrested the defendant.  The court reversed the district court ruling and finds that the arrest was unlawful and the fruits of the search must be suppressed.  Officers had a reasonable suspicion to investigate but not probable cause to arrest.

Vehicle Stop Improper

State v James Smith

An officer was looking for Rick Smith, who had a warrant for his arrest, and ran a license plate number that registered to a James Smith with the same address and Rick Smith.  The officer stopped the vehicle, leading to  a DWI arrest.  The court decides that the State V Pike decision cannot extend to justify a stop in this case.  The court states that the pike decision does not provide the basis
for an inference that a vehicle may be operated by a relative sharing the same address with the registered owner of the vehicle.

Hotel Room-No privacy Expectation

State V see

Affirming the defendants conviction for first degree controlled substance crime, the court finds that the decision of trial counsel not to challenge the search of the hotel room was not tactical decision and not the basis for ineffective assistance of counsel.  The court notes uncertainty in the law as to whether the defendant could have been impeached by any contradictory testimony at a Rasmussen hearing concerning his expectation of privacy in the room. Moreover, the court finds that the defendant filed to establish a reasonable expectation of privacy where he had left the door open and never asserted privacy when the police arrived.

Consent to Search

state v olmscheid

Defendant watched officers arrest two men outside a residence, and the officers drew their weapons and ordered them to the ground. A single officer than ordered the defendant out of her car, asked for consent to search the car and informed her on the right to revoke her consent to the search at any time. The court affirms the District court’s ruling that the defendant voluntarily consented to the search.

DWI Vehicle forfeiture-Tribal member

Morgan JR V 2000 Volkswagen

Reversing the forfeiture of a motor vehicle for a 2nd degree DWI Offense, the court finds that the State of MN lacks jurisdiction to apply the civil vehicle forfeiture law when the conduct giving rise to forfeiture occurred on an Indian reservation and the owner is an enrolled member of the tribe on that reservation.

The Court finds that an officer had a proper basis to stop the petitioner’s motor vehicle where the license plate was partially obstructed by snow making it hard for the officer to read the plate or see the tabs, and it had not snowed for several hours before the officer stopped the vehicle.

Towing of Vehicle illegal State V. Gauster

The defendant was cited for no proof of insurance and requested to make arrangements for someone to come and get the vehicle. The officer decline and towed the vehicle, which was lawfully parked, and did not constitute a  traffic hazard in the middle of the day. Disagreeing with the District court, the Supreme Court finds the police did not have the authority to tow the vehicle, and therefore the subsequent inventory search that led to the discovery of drugs was unlawful and the evidence must be dismissed.

Inventory Search-Loose panel State V Delaney Johnson

During an inventory search, the officer noticed a loose cassette player panel that appeared to have been removed. The officer removed the panel with his fingers and found a firearm that was placed inside a sock. The officer testified that he had found contraband and valuables in panels, compartments and vents in the vehicle many times. The Court finds that the inventory search was conducted in accordance with police department policy and affirms a denial of the defendants motion to suppress.

Loud Muffler                  State v. Gedicke

The court reverses the dismissal of a charge of felony fleeing a police officer in a motor vehicle, and finds that the officer had a reasonable basis to stop the  ATV the defendant was driving based on the officers belief that the muffler violated Minnesota statute 169.69. It was only necessary that the officer reasonably believed that the muffler was unlawful.

DWI 45 Minutes for an attorney Bray V. Commissioner

The court affirms the revocation of petitioner’s driving privileges where the petitioner was given appx. 45 minutes to contact an attorney, and he attempted to reach only one particular attorney and declined to contact any other lawyer. The record shows that the petitioner refused to take the test without speaking to his attorney.

Right to Counsel-No glasses State V. Knutson

Defendant was given thirty minutes to reach a lawyer and claimed he could not read the phone book because he was missing his glasses. An officer provided a pair of reading glasses which the defendant claimed did not help. The District Judge found the defendant’s claim that he could not read the phone book “did not appear to be genuine”. The Court finds the defendant’s right to counsel was vindicated.

Emergency Entry Claim. Stave v Young . Court of Appeals. 6-3-2008 -A citizen told police a group of men and women were smoking methamphetamines in a house, and that one of the men had a gun and it was feared the women would be raped. The court concluded the warrantless entry by police officers into the house was not justified by the emergency aid exception because the officers did not have any information and made no observations indicating that anyone in the house was in any distress or danger of imminent injury.

DWI WIth PBT .07- Reeves v Commissioner. 6-24-08. The court finds that an officer had probable cause to arrest the Mr. Reeves for DUI, where the officer observed indications of intoxication, in spite of a preliminary blood test reading of .07.

Death Penalty-Child Rape. Kennedy v. Louisiana. 6-25-2008. The supreme count concludes that the 8th Amendment to the United States Constitution bars the State of Louisiana from imposing the death penalty for the rape of a child where crime did not result and was not intended to result in the death of the victim.

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