State of Minnesota, Respondent, vs. Ras D. Wooten, Appellant.

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State of Minnesota, Respondent, vs. Ras D. Wooten, Appellant. A06-1288, Court of Appeals Unpublished Decision, October 30, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

 IN COURT OF APPEALS
A06-1288

 

State of Minnesota,
Respondent,

vs.

Ras D. Wooten,
Appellant.
 Filed October 24, 2007

Reversed; motion granted

Willis, Judge

 

Hennepin County District Court

File No. 06-000984

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Jay M. Heffern, Minneapolis City Attorney, Eileen J. Strejc, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN  55402 (for respondent)

 

Larry E. Reed, 2000 Plymouth Avenue North, Minneapolis, MN  55411 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.
 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the district court's denial of his pretrial motion to suppress evidence, arguing that he was unlawfully stopped and detained and that he was given an inadequate implied-consent advisory.  Because we conclude that the law-enforcement officer stopped appellant's vehicle without an articulable basis for suspecting him of criminal activity, we reverse.

FACTS

Appellant Ras D. Wooten appeals from his conviction of third-degree refusal to submit to a chemical test, in violation of Minn. Stat. §§ 169 A. 20, subd. 2, 169 A. 26, subds. 1, 2 (2004).  Wooten submitted his case to the district court on the facts described in the police report and the complaint, preserving his right to appeal the denial of his pretrial motion to suppress.  See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980) (outlining the procedure for a stipulated-facts trial).

            According to testimony at the pretrial suppression hearing, on January 5, 2006, at approximately 6:00 p.m., a state trooper was patrolling near interstate 94 and highway 65 in Minneapolis when she saw a car stalled in a traffic lane on a freeway ramp.  She stopped and approached the driver's window, and Wooten, who was sitting in the driver's seat, attempted to roll down the window.  The trooper opened the door and told Wooten to put the car in neutral and she would then push his car to the shoulder of the ramp.  Wooten appeared confused but was able to guide the car to the shoulder of the ramp.  Wooten then was able to restart his car, and he began to drive away, but the trooper activated her spotlight to indicate to Wooten that he needed to stop because the trooper "had not yet identified who he was." 

            The trooper approached Wooten's window a second time, and he rolled it down and provided his driver's license upon request.  The trooper "smelled the odor of alcohol coming from his breath" and saw that his eyes were red and watery.  And Wooten admitted that he had consumed alcohol on an airplane earlier that evening.  Wooten failed a horizontal-gaze-nystagmus test, but the one-leg-stand and walk-and-turn tests could not be administered because of the grassy incline on which Wooten and the trooper were standing.  Wooten refused to take a preliminary breath test.  The trooper arrested him for driving while impaired (DWI) and transported him to the Minneapolis Chemical Testing Unit, where she read him the implied-consent advisory.  Wooten said that he wanted to talk to an attorney, he did so, and then he refused to take a chemical test.  Wooten was charged with third-degree refusal to submit to a chemical test and fourth-degree DWI. 

At a pretrial hearing on March 14, 2006, Wooten moved to suppress "all evidence as a result of an illegal stop of Mr. Wooten, illegal stop and detention, and . . . any statements as the interrogation failed to meet the full requirements of the Scales decision in that the Implied Consent Advisory was not fully recorded . . . ."  The district court, ruling from the bench, denied Wooten's motion.  The case was submitted on stipulated facts in a Lothenbach proceeding before a second judge, who acknowledged the pretrial-hearing judge's determination that the stop of Wooten's car was legal and convicted him of third-degree refusal to submit to a chemical test and fourth-degree DWI.  The district court concluded that the misdemeanor DWI conviction merged into the gross-misdemeanor refusal-to-test conviction and sentenced Wooten on the latter conviction to 91 days in the workhouse, which was stayed, and ordered him to pay a $900 fine, $600 of which was stayed. 

Wooten challenges the district court's denial of his pretrial motion.  The state has moved to strike Wooten's appendix and a portion of his brief, and that motion was deferred to this panel.

D E C I S I O N

I.

 

Wooten argues that the district court erred by denying his motion to suppress because stopping a vehicle and detaining the driver only to check his driver's license and vehicle registration violates the Fourth Amendment.

The district court found in denying Wooten's motion at the pretrial hearing that when the trooper made her initial contact with Wooten it

was not a stop as that term is usually used.  It was a contact by the police officer that the police officer was entitled to make because there was a car stalled on the highway, in the traffic lane, and, that the police officer was entitled to ask for a driver's license and to investigate why the car was stopped.

 

The police officer postponed that to get the car off of the highway, which was a legitimate thing to do, and the approach of the police officer to the Defendant's car was a continuation of the investigation which was legitimately started when she first approached the car and was legitimate even if at that point she did not have in her mind specific criminal conduct and only wished to identify the car, which she would have had a right to do at the scene of the original contact.   

 

The district court appears to have based its ruling on its conclusion that the second encounter was a continuation of the first and that, therefore, although the trooper did not have a particularized basis for suspecting criminal activity, she did not need such a suspicion because she was justified in asking Wooten for identification based only on the fact that she assisted him in getting a stalled car out of the traffic lane.

Wooten argues that the second encounter was completely distinct from the first and constituted a separate stop of Wooten's vehicle and that, therefore, the trooper's stop to request identification was impermissible under Delaware v. Prouse, in which the Supreme Court held that stopping a vehicle only to demand identification is unconstitutional.  440 U.S. 648, 663, 99 S. Ct. 1391, 1401 (1979).  Although Wooten concedes that the trooper took permissible action when she approached his vehicle to determine whether he needed assistance, he argues that she had no authority to extend the stop beyond that point.

When reviewing the denial of a motion to suppress evidence, we independently review the facts and determine, as a matter of law, whether the district court erred by not suppressing the evidence.  See State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

We defer to the pretrial-hearing court's findings regarding the interaction between Wooten and the arresting trooper, but we conclude that the second encounter between Wooten and the trooper was a separate stop.  Not only had the trooper returned to her vehicle after first speaking with Wooten in order to push his car off the freeway ramp, but also she remained in her car long enough for Wooten to restart his car and begin to drive away, at which time the trooper flashed her spotlight at him to indicate that he should stop.  And nothing in the record suggests that during her first encounter with Wooten, the trooper told him to wait in his car after being pushed off of the ramp.  Therefore, we must determine the constitutionality of the stop of Wooten's vehicle after he had been pushed to the shoulder of the ramp and began to drive away. 

A limited investigative stop is permissible if an officer is able to articulate that she had a particularized and objective basis for suspecting criminal activity.  United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 694-95 (1981).  The officer makes his assessment on the basis of "all the circumstances" and draws inferences and makes deductions based on his training and experience in law enforcement.  Id. at 418, 101 S. Ct. at 695.  "These circumstances include the officer's general knowledge and experience, the officer's personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant."  Applegate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  Whether a reasonable suspicion of criminal activity exists that justifies an investigative stop of a motor vehicle is a question of law, which we review de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

The state argues that the trooper had a reasonable suspicion justifying an investigative stop because Wooten had "illegally blocked traffic," the car may have been stolen, and Wooten may have been driving while impaired.  The state bases its argument on the trooper's observations that Wooten had difficulty rolling down his window, that he appeared confused, and that he began to drive away almost immediately after his vehicle had been pushed out of the traffic lane. 

Wooten argues that the trooper "did not provide any particularized objective basis for suspecting [him] of criminal activity" that would justify stopping his vehicle after she had assisted him in getting off the ramp.  He asserts that she had no basis for a belief that his driver's license was invalid or that his car was stolen.  And he argues that under Delaware v. Prouse, stopping a vehicle only to demand identification is unconstitutional.  Although the trooper took permissible action when she approached his vehicle to determine whether he needed assistance, Wooten asserts, she had no authority to extend the stop beyond that point.

The pretrial-hearing court found that Wooten was talking on his cellular phone when the trooper first approached him, likely in an attempt to arrange a tow of his vehicle.  Given this fact, we conclude that Wooten's apparent confusion or difficulty immediately rolling down the window does not provide an adequate basis for a suspicion that his car was stolen or that he was driving while impaired.  Other than Wooten's apparent difficulty in rolling down his car window, which could indicate unfamiliarity with the car, the trooper articulated no facts to support a suspicion that the car had been stolen.  And before the second encounter, the trooper had not smelled alcohol or asked Wooten whether he had been drinking.  We conclude that, as a matter of law, the trooper's testimony does not provide an articulable basis that justified an investigative stop after the initial encounter to provide assistance to Wooten. 

Because the trooper's stop of Wooten was not based on a reasonable, articulable suspicion of criminal activity, we reverse his convictions.  It is therefore unnecessary for us to address his argument regarding the adequacy of the implied-consent advisory that he was given.


 

II.

            The state moved this court to strike the last paragraph on page 5 of Wooten's brief and to strike his entire appendix, which consists solely of an order filed in September 2006 in his implied-consent proceeding.  Wooten did not respond to the motion, and a ruling was deferred to this panel. 

The record on appeal is limited to the papers filed in the district court, the offered exhibits, and the transcript(s) of proceedings.  Minn. R. Crim. P. 28.02, subd. 8.  This court will strike documents included in a party's brief that are not part of the appellate record. See State v. Cook, 617 N.W.2d 417, 420 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000).  The order in Wooten's appendix was not part of the district-court file in this criminal matter, so it is not part of the record on appeal.  And the last paragraph on page 5 of his brief refers to the same order.  The state's motion to strike is granted.     

            Reversed; motion granted.