State of Minnesota, Respondent, vs. Jesse Robert Schaefer, Appellant.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C6-98-779

State of Minnesota,
Respondent,

vs.

Jesse Robert Schaefer,
Appellant.

 Filed February 2, 1999
Affirmed
Halbrooks, Judge

Stearns County District Court
File No. T7971434

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jan F. Peterson, St. Cloud City Attorney, Matthew A. Staehling, Assistant City Attorney, 400 South 2nd Street, St. Cloud, MN 56301 (attorneys for respondent)

John D. Ellenbecker, 101 7th Avenue South, Suite 110, St. Cloud, MN 56302-1127 (attorney for appellant)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Halbrooks, Judge.

 U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Jesse R. Schaefer challenges his conviction for driving under the influence of alcohol, alleging that the trial court abused its discretion by excluding his vehicle from evidence at the Rasmussen hearing and erred by denying appellant's motion to suppress all evidence obtained as a result of the stop. We affirm.

FACTS

On February 6, 1997, at approximately 1:19 a.m., Officer Sayre of the St. Cloud Police Department was on patrol when he noticed a vehicle with a loud muffler. The officer followed the vehicle for a short while, during which time he observed that the tint on the vehicle's windows was very dark and appeared to be illegal. The officer stopped the vehicle for further investigation. The driver of the vehicle was appellant Jesse R. Schaefer.

The officer observed that appellant appeared to be intoxicated. After some preliminary tests administered at the scene, the officer arrested appellant for driving under the influence of alcohol. In addition, the officer used his tint-meter to measure the tint on the vehicle and determined that the tint on the window allowed only 34.5 percent light transmittance.

Appellant moved to suppress the evidence obtained as a result of the stop, claiming that the officer had no reasonable basis on which to stop the vehicle. A hearing was held on appellant's motion on October 23, 1997. At the hearing, appellant attempted to introduce the vehicle as evidence. As an offer of proof, appellant submitted the order and memorandum of the trial judge who had heard the related implied consent matter. That judge had both observed and ridden in the vehicle in the course of the implied consent hearing and determined that there had not been a sufficient basis for the stop because "a) the muffler was not excessively loud, and b) the windows were not excessively tinted."

The trial court in this matter excluded the vehicle from evidence, concluding that it was not relevant to the issue of whether the officer had a reasonable and articulable suspicion of criminal activity, and denied appellant's motion to suppress. The parties then tried the matter on stipulated facts. Appellant preserved his right to appeal the pretrial order. Appellant was convicted of driving while under the influence of alcohol and failure to produce proof of insurance. This appeal followed.

Appellant challenges the trial court's denial of his motion to suppress evidence resulting from the stop. Appellant alleges that the trial court abused its discretion by not admitting appellant's vehicle into evidence. Appellant further alleges that the exclusion of the car from evidence interfered with appellant's Sixth Amendment right to confront the officer. Because we determine that the trial court acted within its discretion, we affirm.

ANALYSIS 1. The Vehicle

A trial court has broad discretion to admit or exclude evidence, and a court's ruling will not be reversed absent an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). A trial court has wide latitude to determine whether evidence is relevant. Raleigh v. Independent Sch. Dist. No. 625, 275 N.W.2d 572, 576 (Minn. 1976). Relevant evidence is evidence that tends to make a fact of consequence more or less probable. Minn. R. Evid. 401; State v. Beard, 574 N.W.2d 87, 91 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998).

Appellant argues that the trial court erred when it refused to view the condition of the vehicle. The basis for appellant's argument appears to be that the vehicle itself would have contradicted the officer's testimony that the muffler was loud and the windows were darkly tinted. Appellant contends that foundation was properly established by his testimony that the vehicle was in substantially the same condition at the time of trial as it had been at the time of the stop.

Appellant offered the vehicle to prove that the muffler was not too loud and the tint was not too dark, and that, therefore, the officer had no reasonable and articulable basis for the stop. See Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). But in order to be relevant, the evidence must be probative of whether the officer had a reasonable and articulable basis for the stop. See Minn. R. Evid. 401. Here, the officer testified that he heard the loud muffler and observed the darkly tinted windows late at night in February. Appellant requested that the judge view the vehicle during the day in October--more than eight months later. The trial court acted within its discretion when it concluded that (1) the vehicle as observed under the conditions offered was not probative of the state of the vehicle under the conditions observed by the officer, see Green v. City of Coon Rapids, 485 N.W.2d 712, 717 (Minn. App. 1992) (exclusion of atmospheric tests performed one week after the complained of exposure was within the trial court's discretion), review denied (Minn. June 30, 1992), and (2) the trial court was not qualified to evaluate whether the muffler was too loud or the tint too dark. See Berge, 374 N.W.2d at 732 (recognizing that a police officer may draw conclusions in light of the officer's experience that might elude an untrained person).

Nor is appellant persuasive in his contention that the vehicle was the best evidence available. The officer testified that he tested appellant's vehicle with a tint-meter and that the test showed the tint was illegal because it only allowed light transmittance of 34.5%.[1] See Minn. Stat. § 169.71, subd. 4(c) (1996) (prohibiting the operation of a vehicle with tinted windows allowing less than 50% light transmittance). Presumably, appellant could have offered results of alternative tint-meter testing. Appellant could have also offered evidence in the form of an evaluation of his exhaust system by a competent mechanic.

Finally, this case does not present a confrontation issue. The evidence was offered as proof of the lack of basis for the stop, not as evidence of the officer's credibility. Furthermore, "a defendant has no right to present evidence that is properly excluded under applicable rules of evidence." Beard, 574 N.W.2d at 90 (citing State v. Svoboda, 331 N.W.2d 772, 775 (Minn. 1983); State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 91 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992)). As noted above, appellant could have produced relevant evidence of the condition of the muffler and the tint on the windows.

2. The Stop

When reviewing a trial court's findings of fact bearing on a motion to suppress, we apply the "clearly erroneous" standard. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Once the facts are established, we independently review the application of law to determine the adequacy of the basis for the stop. Berge, 374 N.W.2d at 732.

Under the Fourth Amendment to the United States Constitution, a police officer must have a reasonable basis for stopping a vehicle. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). A stop is lawful if the officer articulates a "particularized and objective basis for suspecting the particular persons stopped of criminal activity." Berge, 374 N.W.2d at 732 (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S. Ct. 690, 695 (1981)) (emphasis in Berge). It is not necessary that an actual violation occur. State v. Reese, 388 N.W.2d 421, 423 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).

The trial court determined that the officer's observation of appellant's darkly tinted windows provided the officer with a reasonable and articulable suspicion that appellant was in violation of Minnesota traffic laws. The law supports that determination.

Affirmed.

[1] The trial court states in its memorandum of law that "[i]t does not matter that subsequent tests proved that the tint on [appellant's] windows was legal but only that the officer has a reasonable and articulable suspicion at the time of the stop." In fact, the only evidence on the record was the officer's testimony that the tint tested as illegal.