State of Minnesota, Respondent, vs. Corey Lavar Williams, Appellant. [substituted opinion]

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-99-839

State of Minnesota,
Respondent,
 
vs.
 
Corey Lavar Williams,
Appellant.

 

Filed January 31, 2000
Affirmed; motion denied
Foley, Judge[*]

Hennepin County District Court
File No. 98-125434

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Ctr., Minneapolis, MN 55487 (for respondent)

William E. McGee, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Hennepin County Public Defenders Office, 317 Second Avenue South, #200, Minneapolis, MN 55401-0809 (for appellant)

Considered and decided by Anderson, Presiding Judge, Short, Judge, and Foley, Judge.

 

U N P U B L I S H E D   O P I N I O N

FOLEY

, Judge

Appellant Corey Lavar Williams challenges his conviction of possession of a controlled substance in the second degree, arguing that the police did not have an objectively reasonable suspicion of criminal activity to justify the stop. We affirm.

 

FACTS

Minneapolis police officer James Loveland and his partner were on patrol during the early morning hours of December 17, 1998. At approximately 4:00 a.m., Officer Loveland was driving northbound on Nicollet Avenue with a green light, when he was forced to slow down because two individuals were standing in his lane. One of the individuals was later identified as appellant Corey Lavar Williams.

The individuals started jogging. Loveland turned on his spotlight and public address system and ordered the individuals to stop, but they continued to jog. Loveland saw Williams remove something from his righthand pocket and throw it to the ground. When the individuals stopped jogging, the officers got out of the squad car and took them into custody. Loveland then located the item discarded by Williams, which tested as more than six grams of cocaine.

Williams was charged with possession of a controlled substance in the second degree in violation of Minn. Stat. § 152.022, subds. 2(1) and 3(b) (1998). Williams moved to suppress the evidence obtained by the police as the fruit of an unlawful detention. After a Rasmussen hearing at which testimony by Loveland and oral arguments were heard, the district court denied Williams's motion to suppress.

The district court found that Williams was standing either in the crosswalk, or in an area where he would have had the right to be if he had the right-of-way. The district court also found that Loveland had an objective legal basis to stop Williams. The district court reasoned that "given the fact that the officer had the green light, [Williams] standing in the roadway was either jaywalking or obstructing traffic, and at least would warrant giving a citation."

Williams agreed to a stipulated facts trial based on the criminal complaint, the evidentiary hearing testimony, and the amount of controlled substance recovered. Williams waived his right to a jury trial and his right to confrontation, and the matter was tried to the bench. The district court found Williams guilty and stayed execution of a 36-month sentence pending this appeal. Williams appeals the evidentiary hearing decision and the resulting conviction.

 

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the district court erred in not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

 

I. Objective Legal Basis for Stop

Both the United States and Minnesota Constitutions protect citizens from unreasonable seizures. U.S. Const. amend. IV; Minn. Const. art. I § 10. When a police officer directs an individual to stop, it constitutes a "seizure" within the meaning of the Minnesota Constitution. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). It is undisputed that the officers seized Williams when they ordered him to stop.

Williams argues that there was no objective legal basis for the stop, that the stop was therefore unlawful, and that the cocaine discarded during the stop should have been suppressed under the fruit of the poisonous tree doctrine. See Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 415-16 (1963).

The Minnesota Supreme Court has held that a traffic stop must be justified by "an objective legal basis." State v. George, 557 N.W.2d 575, 578 (Minn. 1997); see also Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996) (police officer may make routine traffic stop where he or she has "valid objective basis" for making stop). "Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle." George, 557 N.W.2d at 578; see also State v. Varnado, 582 N.W.2d 886, 889 (Minn. 1998) (upholding stop based on officer's observation of broken windshield); State v. Pleas, 329 N.W.2d 329 (Minn. 1983) (upholding stop based on officer's observation of broken windshield, no front license plate, and rear plate upside down); State v. Barber, 308 Minn. 204, 241 N.W.2d 476 (1976) (upholding stop based on officer's observation that license plate was wired on rather than bolted on). Here, the officer's subjective intentions play no role in analyzing whether a seizure was reasonable under the Fourth Amendment. Whren, 517 U.S. 806, 116 S. Ct. at 1769.

At the Rasmussen hearing, Officer Loveland testified that (1) he was driving Northbound on Nicollet Avenue with a green light when he was forced to slow down because two individuals were "standing" in the road; (2) he attempted to stop the two individuals for jaywalking; and (3) he intended to cite and release them. Although Loveland did not identify the ordinance or statute that he believed was violated, there are several violations for which Williams could have been cited. Loveland had an objective legal basis to conclude that Williams was in violation of Minneapolis, Minn., Code of Ordinances § 385.65 (1988) (obstructing traffic), Minneapolis, Minn. Code of Ordinances § 466.160 (1960) (disobeying traffic-control devices), and Minn. Stat. § 169.06 (1998) (disobeying traffic-control and pedestrian-control signals).

Williams argues that because Loveland used the term "jaywalking" at the Rasmussen hearing, and because respondent cannot prove that Williams violated Minnesota's jaywalking statute, Minn. Stat. § 169.21 (1998), Loveland lacked an objective legal basis for believing that Williams violated the law. But regardless of whether Loveland subjectively believed that the offense was jaywalking, he had an objective legal basis to believe that Williams committed a traffic violation. Williams was standing in the road when Loveland had a green light, which was a violation of several laws. See State v. Olson, 482 N.W.2d 212, 214 (Minn. 1992) (decisions of supreme court "have held that if there is an objective legal basis for it, an arrest or search is lawful even if the officer making the arrest or conducting the search based his or her action on the wrong ground or had an improper motive").

Williams also argues that a Terry investigative detention is not permissible under these facts because jaywalking is not a serious offense. In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), the United States Supreme Court held that an officer may temporarily stop and detain a person to investigate criminal wrongdoing if the officer has a reasonable articulable suspicion of criminal activity. The Minnesota Supreme Court has stated that a Terry investigative detention is only permissible when the police are investigating a serious offense. See State v. Holmes, 569 N.W.2d 181, 185 (Minn. 1997). But this case does not involve a Terry investigative detention. Here, Loveland attempted to stop Williams, not to investigate possible criminal wrongdoing, but to cite him for an offense that the officer observed him commit. Before Loveland could stop Williams, he ran and discarded the cocaine. A police officer may stop a person to enforce even a parking violation if a stop is necessary to enforce the violation. See Holmes, 569 N.W.2d at 185. Here, Loveland had to stop Williams and identify him in order to issue a citation for the violation that he observed. Therefore, the stop was permissible.

 

II. Pretext

Williams argues that this was a pretextual stop to search for drugs. The supreme court has become increasingly concerned about pretextual stops and has held that the pretext factor is relevant to determining whether an intrusion is reasonable where the intrusion is not based on probable cause. See Holmes, 569 N.W.2d at 187-88 where officer's sole motivation for conducting inventory search of automobile was to discover gun, search was invalid). But here the officers had probable cause to believe that Williams was violating a traffic regulation because they observed him standing in the street without the right-of-way. We agree with the district court that pretext is not an issue in this case. Because we find that the stop was not pretextual, we decline Williams's invitation to consider whether the Minnesota Constitution prohibits pretextual stops.

 

III. Motion to Strike

In the appendix of his brief, Williams reproduced an opinion issued by another judge of the Hennepin County Drug Court. The opinion discusses the problem of pretextual stops in connection with enforcement of the Minneapolis Police Department's CODEFOR program.

Respondent filed a motion to strike the opinion and the portions of Williams's brief that refer to and rely on the opinion. Respondent argues that this opinion should be stricken because it is not part of the record on appeal. The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings." Minn. R. Civ. App. P. 110.01. This court will strike documents included in a party's brief that are not part of the record on appeal. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993). The opinion is not part of the record on appeal. But this court may consider cases, statutes, rules, and publicly available articles that were not presented to the district court. Fairview Hosp. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n.3 (Minn. 1995). Because the opinion is a "case," we may consider it for its persuasive value. Respondent's motion to strike is denied. We observe, however, that because the stop here was not pretextual, the opinion was not persuasive and played no part in our decision.

 

Affirmed; motion denied.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.