                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0718


                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                   Tou Vang Pal Lor,
                                     Respondent.


                                Filed September 28, 2015
                                        Affirmed
                                    Bjorkman, Judge


                              Ramsey County District Court
                                File No. 62-CR-14-8240

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney,
St. Paul, Minnesota (for appellant)

Melvin R. Welch, Amanda J. Montgomery, St. Paul, Minnesota (for respondent)


         Considered and decided by Johnson, Presiding Judge; Bjorkman, Judge; and Kirk,

Judge.
                         UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges the suppression of evidence discovered during the

warrantless search of respondent’s vehicle. Because the impoundment of the vehicle that

led to the inventory search was unreasonable, we affirm.

                                           FACTS

       On August 14, 2014, St. Paul Police Officer Jon Sherwood stopped respondent

Tou Vang Pal Lor’s vehicle because it was blocking access to an alleyway. During the

stop, Officer Sherwood discovered that Lor’s driver’s license had been revoked. Officer

Sherwood issued Lor a citation and warned him that he would be subject to arrest if

stopped for driving without a valid license in the future.

       On August 22, Officer Sherwood observed Lor driving again. Officer Sherwood

initiated a traffic stop, ordered Lor out of the vehicle and conducted a pat search. Officer

Sherwood reminded Lor of his previous warning that he would be “eligible for arrest”

and his vehicle could be towed. After completing the pat search, Officer Sherwood

escorted Lor to his squad car, explaining that he was placing him there so he could “write

a citation.” Officer Sherwood repeatedly asked Lor if he had anything on him or in the

car, including guns or drugs. Once Lor was secured in the squad car, Officer Sherwood

returned to Lor’s vehicle where he was joined by Officers Sean Maloney and Adam

Bravo who had just arrived on the scene.

       The three officers proceeded to search Lor’s vehicle.        At one point, Officer

Sherwood returned to the squad car and asked Lor again if there was anything in the


                                              2
vehicle or its trunk. Officer Sherwood reminded Lor of his prior warning that he was

“subject to arrest” based on his driving history. Lor asked Officer Sherwood to write him

a citation, explaining that he was able to pay the fine because he had a new job. Officer

Sherwood responded, “Ok, I’ll work with you on that,” before returning to Lor’s vehicle

to search the trunk. Officer Maloney then discovered a baggie of methamphetamine in a

makeshift compartment located in the center console around the gear shift. Once the

drugs were discovered, Officer Sherwood ordered Lor out of the squad car and placed

him in handcuffs. Subsequently, Officers transported Lor to jail and called for a tow

truck.

         Lor was charged with a controlled-substance crime. Lor moved to suppress the

seized evidence. At the suppression hearing, the state submitted the squad-car video,

along with documents related to Lor’s driving history and the police department’s towing

and inventory search policies; Officers Sherwood and Maloney both testified. Officer

Sherwood described stopping Lor on both occasions, and stated that he arrested Lor for

driving after revocation at the time he ordered him out of his vehicle on August 22. He

explained that he would not have taken Lor out of his vehicle if he was simply going to

issue a citation. Officer Sherwood also testified that the search of Lor’s vehicle was an

inventory search based on Lor’s arrest and police department policy that permits

impoundment when a vehicle’s owner has failed to respond to over five traffic citations.

Officer Maloney testified regarding how and where he found the drugs within the vehicle.

         The district court granted Lor’s suppression motion on the record at the conclusion

of the hearing. After reviewing the circumstances with reference to the squad-car video,


                                              3
the court stated that it had “a lot of questions with regards to how the police conducted

this stop and seizure.”    First, the district court expressed skepticism about Officer

Sherwood’s decision to handle the August 22 stop differently from the prior stop,

including immediately ordering Lor out of the vehicle, conducting a pat search,

repeatedly asking Lor if he had anything in the car, and impounding the vehicle. Second,

the court questioned the impoundment of the vehicle because it was legally parked and

because Officer Sherwood’s testimony did not support the assertion that the arrest

preceded the search. The district court implicitly questioned the veracity of the officer’s

testimony, noting that “[i]f the decision was made immediately by Officer Sherwood to

arrest the defendant, why was the defendant not immediately handcuffed until after the

drugs were found? Why the tow truck had not been called before the discovery of the

drugs? And why no one apparently was keeping track of what they were seeing inside

the vehicle.”

       Finally, the district court found that the inventory search was improperly

conducted. Based primarily on its review of the squad-car video, the district court found

that the search constituted improper “general rummaging” because it was clear that the

officers “weren’t overly concerned about safeguarding any property that the defendant

might have had in [the] car,” and that their “sole motivation was to discover evidence of a

crime.” The state appeals the suppression order.

                                     DECISION

       When reviewing pretrial orders on motions to suppress evidence, we

independently review the facts and determine, as a matter of law, whether the district


                                            4
court erred in suppressing evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

We examine the district court’s findings of fact for clear error, giving due weight to

inferences drawn from those facts, State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998), and

defer to the district court’s credibility assessments. State v. Miller, 659 N.W.2d 275, 279

(Minn. App. 2003), review denied (Minn. July 15, 2003). When appealing a pretrial

suppression order, the state must “clearly and unequivocally” show both that the district

court’s order will have a critical impact on the state’s ability to prosecute the defendant

successfully and that the order is erroneous. State v. Scott, 584 N.W.2d 412, 416 (Minn.

1998).1

         The state first contends that the warrantless search of Lor’s vehicle was proper

because it fell within the inventory-search exception to the warrant requirement.2

Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741 (1987). An inventory search

is only reasonable if the underlying impoundment was also valid. See State v. Gauster,

752 N.W.2d 496, 502 (Minn. 2008) (“[T]he threshold inquiry when determining the

reasonableness of an inventory search is whether the impoundment of the vehicle was

proper.”). In State v. Rohde, our supreme court addressed the limited circumstances

under which law enforcement may impound a vehicle. 852 N.W.2d 260, 264-66 (Minn.

2014). A police officer stopped Rohde’s vehicle for a minor traffic offense and learned

that the vehicle was not registered and Rohde did not have a valid driver’s license. Id. at

1
  Lor does not dispute, and we agree with the state’s assertion, that the suppression order
prevents the state from prosecuting Lor for a controlled-substance crime, thus satisfying
the critical-impact requirement.
2
    Lor does not challenge the validity of the initial stop.

                                                 5
262. The officer did not arrest the defendant, allowing her to arrange an alternative ride

home, but did impound the vehicle pursuant to a police department policy that required

the impoundment of uninsured vehicles.            Id.   During an inventory search, officers

discovered drugs in the vehicle.      Id. After the district court denied the defendant’s

suppression motion, and this court affirmed, the supreme court held that the

impoundment was unreasonable because the vehicle was legally and safely parked on a

residential street and the officer did not arrest the defendant. Id. at 262-63.

       The supreme court began its analysis by reaffirming the established principle that

the state’s interest in impounding a vehicle must outweigh the individual’s Fourth

Amendment right to be free from unreasonable searches. Id. at 264. In doing so, the

supreme court noted that this determination is “independent of whether the impoundment

was authorized by Minnesota law,” and directly rejected the proposition that state law

dictates whether impoundment is reasonable. Id. at 264-65.

       The supreme court next identified the circumstances under which impoundment

may be reasonable.      Both circumstances require the police to perform a caretaking

function. First, officers are authorized “to seize and remove from the streets vehicles

impeding traffic or threatening public safety and convenience.” Id. at 265 (quotation

omitted). Second, officers may impound a vehicle to protect an individual’s property

from theft and the police from claims of theft or property damage. Id. This authority

exists when the police must “take custody of and responsibility for a vehicle due to the

incapacity or absence of the owner, driver, or any responsible passenger.” Id. Implicit in

this second caretaking scenario is the fact that cases in which the driver of a vehicle is


                                              6
arrested are fundamentally different from cases in which the driver remains free; officers

are generally justified in impounding a vehicle when the driver is taken into custody. Id.

at 266; see also Gauster, 752 N.W.2d at 506 (recognizing that “the need for the police to

protect the vehicle and its contents is often present when police officers arrest a driver”).

We are not persuaded that the impoundment of Lor’s vehicle was justified under either

basis.

         It is undisputed that Lor’s vehicle was legally parked on a residential street and did

not impede traffic or block access to property. Accordingly, the impoundment of his

vehicle was only reasonable if Officer Sherwood decided to take Lor into custody before

initiating the impoundment and inventory search. The state asserts this was the case,

pointing out that there was probable cause to arrest Lor for driving after revocation and

citing Officer Sherwood’s testimony that he immediately placed Lor under arrest. Lor

does not dispute that Officer Sherwood had probable cause to immediately arrest him, but

contends the impoundment was invalid because the decision to arrest him was not made

until after the drugs were discovered.

         As in Rohde, the reasonableness of the impoundment—i.e., the officer’s authority

to exercise the caretaking function—turns on whether Lor was arrested prior to search.

While the district court’s findings here are not as clear as they could have been, we read

its oral ruling to include findings that there was no arrest until the drugs were found. We

review these findings for clear error. See Rohde, 852 N.W.2d at 256-66 (examining

whether the facts demonstrated that the officer “plan[ned] to arrest Rohde or take her to

jail” before choosing to impound the vehicle); see also State v. Shellito, 594 N.W.2d 182,


                                               7
186 (Minn. App. 1999) (explaining the district court may make factual findings from its

“independent review of a video recording of a traffic stop,” which are reviewed for clear

error).

          The record supports the district court’s findings that the August 22 stop presented

a fluid and evolving situation; some aspects of the stop suggest an immediate arrest, but

many others do not. While Officer Sherwood ordered Lor out of his vehicle and pat

searched him3 before placing him in the squad car, he did not tell Lor that he was under

arrest. Until the drugs were discovered, Officer Sherwood couched his references to

arrest in terms of reminding Lor that he was “subject to” or “eligible for” arrest. And

before placing Lor in the back of the squad car, Officer Sherwood said that he was going

to write him a citation. During the search, Officer Sherwood again reminded Lor that he

was “subject to” arrest. Lor asked Officer Sherwood if he could just give him a ticket

and the officer responded, “Ok, I’ll work with you on that.” Only after the drugs were

found did Officer Sherwood return to the squad car, place Lor in handcuffs, and take him

to jail. On this record, we conclude that the district court did not clearly err in finding

Lor was not arrested until after the drugs were found.

          Alternatively, the state contends that the impoundment was reasonable because it

was consistent with police department policy authorizing impoundment when a driver has

failed to respond to multiple citations for parking or traffic offenses. We disagree. As

3
  The state contends that Officer Sherwood briefly handcuffed Lor before conducting the
pat search. But Officer Sherwood simply testified, consistent the squad-car video, that he
“had [Lor] put his hands behind his back” prior to the pat search. Accordingly, the
district court’s finding that Lor was not handcuffed until the drugs were found is not
clearly erroneous.

                                               8
noted above, Rohde instructs that the reasonableness of an impoundment is measured

under the Fourth Amendment, not by state law or police department policy. Rohde, 852

N.W.2d at 264-65.      The supreme court clearly delineated the situations when law

enforcement’s caretaking authority provides a reasonable basis to impound a vehicle, id.

at 265-66, none of which were present here.

       In sum, we conclude that the impoundment of Lor’s vehicle was unreasonable,

invalidating the inventory search that led to the discovery of the drugs. Accordingly, we

affirm the district court’s suppression order.

       Affirmed.




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