State of Minnesota, Respondent, vs. Evan Scott Goodrich, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1955

 

State of Minnesota,
Respondent,

vs.
 
Evan Scott Goodrich,
Appellant.

 

 

Filed June 8, 2004

Affirmed

Peterson, Judge

 

Blue Earth County District Court

File No. K203415

 

Mike Hatch, Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

 

Eileen M. Wells, Mankato City Attorney, Linda B. Hilligoss, Assistant City Attorney, 10 Civic Center Plaza, P.O. Box 3368, Mankato, MN  56002-3368 (for respondent)

 

 

Jason C. Kohlmeyer, Manahan, Bluth & Kohlmeyer, 110 South Broad Street, P.O. Box 287, Mankato, MN  56002-0287 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge, Toussaint, Chief Judge, and Anderson, Judge,

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

PETERSON, Judge

In this appeal from a driving-while-impaired (DWI) conviction, appellant argues that the district court erred in ruling that by failing to specifically raise the issue of the constitutional validity of the stop of his vehicle, appellant waived the issue.  We affirm. FACTS             After stopping appellant Evan Scott Goodrich's vehicle for speeding, Mankato Police Officer Jeff Knutson observed indicia of intoxication and asked appellant to perform field sobriety tests.  Appellant failed the tests, and Knutson arrested him and transported him to jail.  After Knutson administered the implied-consent advisory, appellant agreed to submit to a blood test, which showed an alcohol concentration of .13.  Appellant was charged with one count each of third-degree DWI in violation of Minn. Stat. §§ 169 A. 20, subd. 1(1), 169 A. 26 (2002); third-degree DWI in violation of Minn. Stat. §§ 169 A. 20, subd. 1(5) (2002), 169 A. 26; fourth-degree DWI in violation of Minn. Stat. §§ 169 A. 20, subd. 1(1), 169 A. 27 (2002); and fourth-degree DWI in violation of Minn. Stat. §§ 169 A. 20, subd. 1(5), 169 A. 27.

            Appellant filed a motion on matters to be determined at the omnibus hearing.  The motion requested: (1) dismissal of the case for lack of probable cause; (2) suppression of "any and all evidence obtained by way of search and seizure;" (3) suppression of any and all statements, admissions, and confessions; (4) suppression of any and all evidence of other alleged crimes; (5) striking of any of appellant's prior convictions based on an uncounseled guilty plea; and (6) suppression of any and all evidence obtained by way of blood, urine, or breath test as inherently unreliable. 

            At the initial omnibus hearing, appellant requested a contested omnibus hearing to challenge the statutory qualifications of the person who administered the blood test; the scientific validity or reliability of the blood-sample analysis performed by the Bureau of Criminal Apprehension; and the existence of probable cause to require appellant to submit to a blood test. 

            At the contested omnibus hearing, appellant's attorney stated that the parties had agreed that the person who performed the blood test was qualified under the implied-consent statute and that "the only two remaining issues are probable cause, we're gonna challenge that.  And the constitutionality of the stop.  Was [there] reasonable, articulable suspicion on that.  That's all we have today."  The state did not call any witnesses and, instead, submitted the police reports in lieu of officer testimony.  Appellant objected to the admission of the police reports "for anything related to the constitutionality of the stop."  The state argued that the police reports were sufficient to satisfy the state's burden of proving the existence of a reasonable, articulable suspicion for the stop and probable cause for the arrest.  The state also argued that if appellant wanted to raise the issue of reasonable, articulable suspicion, appellant should have requested that the officer testify. 

            Appellant was the only witness who testified at the contested omnibus hearing.  He denied speeding. 

            The district court concluded that the police reports were inadmissible for purposes of determining the constitutionality of the stop, and, therefore, the state had failed to meet its burden of proof on that issue.  But, based on its determination that appellant waived his right to contest the constitutionality of the stop, the district court denied appellant's motion to dismiss. 

            The parties submitted the case to the district court for a decision based on stipulated facts.  The district court found appellant guilty of and sentenced him for committing third-degree DWI in violation of Minn. Stat. §§ 169 A. 20, subd. 1(5), 169A26.  This appeal followed.

D E C I S I O N

            The facts relevant to determining whether appellant waived his right to challenge the constitutionality of the stop are undisputed, so the issue may be decided as a matter of law.  See Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 304 (Minn. 1990) (stating waiver may be decided as a legal issue on uncontested facts); cf. State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978) (appellate court makes an independent determination, on the basis of the facts as found, of whether the waiver of Miranda rights was knowing, intelligent and voluntary).

Minn. R. Crim. P. 8.03 states:

If the defendant does not plead guilty, the defendant and the prosecution shall each either waive or demand a hearing as provided by Rule 11.02 on the admissibility at trial of any of the evidence specified in the notice given by the prosecuting attorney under Rule 7.01 or the admissibility of any evidence obtained as a result of such evidence.

 

A pretrial "motion shall include all defenses, objections, issues and requests then available to the moving party.  Failure to include any of them in the motion constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver."  Minn. R. Crim. P. 10.03.  

The supreme court has stated that "a pretrial motion to suppress should specify, with as much particularity as is reasonable under the circumstances, the grounds advanced for suppression in order to give the state as much advance notice as possible as to the contentions it must be prepared to meet at the hearing."  State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992) (citing 1 W. LaFave & J. Israel, Criminal Procedure § 10.1(b) (1984)).  In Needham, the defendant challenged the legality of a custodial statement at the omnibus hearing, but did not specifically raise the issue of the adequacy of the Miranda warning until the parties filed simultaneous post-hearing briefs.  Needham, 488 N.W.2d at 295-96.  The supreme court remanded to reopen the omnibus hearing to give the state a full and fair opportunity to meet its burden of proving that the Miranda warning was adequate and that the waiver was valid.  Id. at 296-97.  The Needham court recognized that, "in practice, . . . defense counsel at the outset of an omnibus hearing often makes a rather general statement of the issues," and the issues are then more precisely developed through testimony.  Id. at 296.

This court, construing Needham, stated, "[w]e do not believe the supreme court intended to require a detailed defense omnibus hearing motion in all circumstances, nor to require a finding of waiver where no prejudice is shown."  State v. Balduc, 514 N.W.2d 607, 609-10 (Minn. App. 1994).  In Balduc, "[n]o formal defense motion was filed before the omnibus hearing.  Defense counsel, however, did write a letter to the prosecutor giving notice that all usual omnibus hearing issues would be contested, and requesting that the police officers with relevant testimony be present to testify."  Id. at 609.  At the omnibus hearing, the officer

was questioned on the contents of the search warrant and the warrant application, on whether the two were attached together, and on the other factors relevant to the particularity issue.  Defense counsel briefed the issue after the hearing.  This gave the prosecutor notice that the issue was contested, and she argued it in her brief.

 

Id. at 610.  This court concluded that the defendant did not waive the challenge to the particularity of the search warrant.  Id.

Appellant argues that his motion on matters to be determined at the omnibus hearing, which requested suppression of "any and all evidence obtained by way of search and seizure," raised the issue of the constitutionality of the stop.  But even if appellant's motion sufficiently raised a challenge to the stop, appellant's attorney at the initial omnibus hearing listed only three issues that would be raised at the contested omnibus hearing:  (1) the statutory qualifications of the person who administered the blood test; (2) the scientific validity or reliability of the blood-sample analysis performed by the Bureau of Criminal Apprehension; and (3) the existence of probable cause to require appellant to submit to a blood test.  After listing the first two issues, appellant's attorney stated, "[T]hose are the issues I've got right now."  He then stated, "Oh, I guess the only other thing . . . is that he will [probably be] challenging probable cause."  At the end of the hearing, appellant's attorney stated, "I will also just as a courtesy . . . when we get closer to the [omnibus hearing] date and just tell the Court and counsel exactly what we're going for." 

The comments of appellant's attorney at the initial omnibus hearing indicate that the three issues specifically listed would be the only issues raised by appellant at the contested omnibus hearing.  After the initial omnibus hearing and before the contested omnibus hearing, appellant did not give the state or the district court notice that he would raise any additional issues.  None of the issues listed by appellant at the initial omnibus hearing required Knutson's testimony.  The challenges to the blood test did not involve Knutson's conduct, and a finding of probable cause may be based on reliable hearsay evidence, in this instance, the police reports.  Minn. R. Crim. P. 11.03.  Therefore, the state was prejudiced because it did not have notice that it needed to call Knutson to testify at the contested omnibus hearing.

Appellant argues that the state did not object to appellant's challenge to the constitutionality of the stop but argued only that the district court could determine the issue based on police reports.  Therefore, appellant contends, the state waived its objection to the challenge.  But at the contested omnibus hearing, the state argued that if appellant wanted to challenge the constitutionality of the stop, appellant should have requested to have Knutson at the hearing.  Also, at the end of the contested omnibus hearing, appellant's attorney requested that final argument be submitted in a post-hearing brief.  In its brief, the state argued that appellant did not properly demand a Rasmussen hearing to challenge the admissibility of evidence obtained as a result of a search and seizure.

Because appellant did not specifically raise the issue of the constitutional validity of the stop of his vehicle and the state was prejudiced as a result, appellant waived the issue. 

Affirmed.