                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-4072
                                   ___________

David W. Sherbrooke,                     *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
The City of Pelican Rapids, a            *
Minnesota municipal corporation;         *
Scott Fox, individually and in his       *
capacity as Police Chief; Scott Sachs, *
individually and in his capacity as a    *
Police Officer; Ted Leabo, individually *
and in his capacity as Police Officer,   *
                                         *
             Appellants.                 *
                                    ___________

                             Submitted: September 24, 2007
                                Filed: January 17, 2008
                                 ___________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       David Sherbrooke filed this action pursuant to 42 U.S.C. § 1983, claiming that
the City of Pelican Rapids, Minnesota, and several of its police officers violated his
constitutional rights. Specifically, Sherbrooke alleged that the officers violated his
rights under the Fourth Amendment by stopping his car without probable cause and
by recording one side of a conversation between Sherbrooke and his attorney.
Sherbrooke also claimed that the officers committed several violations of state law,
and alleged that the city was liable for maintaining an unconstitutional policy.

       The district court dismissed most of Sherbrooke’s claims, but denied the
defendants’ motion for summary judgment on the claim relating to the traffic stop.
The court also granted summary judgment for Sherbrooke on the claim concerning the
recording of his statements during a telephone call with his attorney. The police
officers and police chief appeal the district court’s denial of qualified immunity, and
the city appeals the court’s denial of its motion for summary judgment. We reverse
and remand.

                                          I.

       On the night of July 24, 2004, Sherbrooke attended a high school class reunion
at the Veterans of Foreign Wars hall in Pelican Rapids. At the reunion, Sherbrooke
drank several alcoholic beverages before driving his pickup truck back to his lake
house at about 12:25 a.m. Along the way, Sherbrooke pulled over to the side of
Minnesota Highway 59 to look up a telephone number. While parked along the side
of the highway, Sherbrooke activated his hazard lights to alert passing traffic that he
had pulled over.

       After finding the telephone number and completing a telephone call,
Sherbrooke pulled away from the shoulder and continued driving down the highway.
Sherbrooke testified that a police vehicle was parked at a stop sign “about 1,100 feet”
up the road and around a bend from where Sherbrooke had pulled over. Officer Scott
Sachs was in the squad car, performing patrol work. Sherbrooke testified that he
turned off the hazard lights when his vehicle reached the 55 mile-per-hour speed limit,
which, he says, “is the correct way to do it.” At the same time, Sherbrooke conceded
that he turned his hazard lights off about 200 yards before reaching Sachs’s police

                                         -2-
vehicle, and only after noticing that Sachs’s car was a police vehicle. Upon seeing the
police vehicle, Sherbrooke gathered his thoughts, checked his speed, and noticed that
his hazard lights remained on.

        After seeing Sherbrooke drive by, Officer Sachs pulled out behind Sherbrooke,
followed him for about twenty-five seconds, and then signaled to Sherbrooke to pull
over. Sherbrooke testified that by the time Officer Sachs pulled him over, the hazard
lights had been deactivated. After pulling to the side of the road, Sherbrooke got out
of his truck, but Officer Sachs ordered him back into the vehicle. Sherbrooke testified
that Sachs then waited four minutes before approaching Sherbrooke’s truck.
Sherbrooke later alleged that he was pulled over because Sachs was involved in a
contest with other officers to see who could make the most arrests for driving while
intoxicated.

      During the traffic stop, Officer Sachs detected alcohol on Sherbrooke’s breath
and looked for signs of impairment. After conducting a series of field sobriety tests
and a portable breath test, Sachs arrested Sherbrooke for drunk driving and
transported him to the police department for additional testing.

        At the police station, Sherbrooke consented to another, more accurate breath
test called an Intoxilyzer. Pursuant to the standard operating procedure of the police
department, Sherbrooke remained under video and audio surveillance so that the
officers could monitor his food and water intake prior to administering the test.
During the wait, Sherbrooke called his attorney and spoke to him while Sachs and
another officer (defendant Ted Leabo) remained in the room. After speaking to his
attorney, Sherbrooke took the Intoxilyzer test, which revealed that his blood alcohol
level exceeded the legal limit for driving. Sherbrooke contends that Sachs caused
Sherbrooke to drink warm water before the test, and then improperly administered the
test, thus resulting in an artificially high reading. Sherbrooke then requested a blood
test. The blood test, administered at a nearby hospital, was not admissible in court.

                                         -3-
The charges against Sherbrooke eventually were dropped, and he was never
prosecuted.

       Sherbrooke brought this suit for damages, alleging violations of his
constitutional rights, as well as “mental anguish, pain and suffering and humiliation.”
The district court dismissed most of his claims, but denied the defendants’ motion for
summary judgment on Sherbrooke’s claim that the initial traffic stop was an unlawful
seizure. The court also granted summary judgment for Sherbrooke on his claim that
the officers unlawfully recorded one side of the telephone conversation with his
attorney. The officers and the city filed this interlocutory appeal.

                                          II.

       As a preliminary matter, Sherbrooke challenges our jurisdiction over this
appeal. We have jurisdiction to consider an interlocutory appeal of an order denying
qualified immunity to the extent the appeal seeks review of “purely legal
determinations made by the district court.” Wilson v. Lawrence County, Mo., 260
F.3d 946, 951 (8th Cir. 2001). We do not have jurisdiction to consider “which facts
a party may, or may not, be able to prove at trial,” Johnson v. Jones, 515 U.S. 304,
313 (1995), but the city and the police officers do not bring this sort of fact-based
appeal. Their contention is that even taking the facts in the light most favorable to
Sherbrooke, neither the traffic stop nor the recording of Sherbrooke’s statements
violated Sherbrooke’s clearly established rights under the Fourth Amendment. This
is a purely legal question over which we have jurisdiction. See Saucier v. Katz, 533
U.S. 194, 201 (2001); Dible v. Scholl, 506 F.3d 1106, 1109 (8th Cir. 2007). We also
have jurisdiction to consider the district court’s grant of partial summary judgment in
favor of Sherbrooke, because it turns on the very same legal issue as the denial of
qualified immunity – that is, whether the recording of Sherbrooke’s conversation with
his attorney violated the Fourth Amendment. See Smith v. Ark. Dept. of Corrections,
103 F.3d 637, 650 (8th Cir. 1996). And we have jurisdiction to consider the City’s

                                         -4-
appeal of the denial of summary judgment on Sherbrooke’s allegation that a municipal
policy caused a violation of his constitutional rights, because the merits of the City’s
appeal is inextricably intertwined with the question whether the officers violated
Sherbrooke’s rights. Smook v. Minnehaha County, 457 F.3d 806, 813 (8th Cir. 2006),
cert. denied, 127 S. Ct. 1885 (2007).

       In assessing a claim of qualified immunity, we are required first to ask whether
the plaintiff’s allegations establish a violation of the Constitution. Saucier, 533 U.S.
at 201. If so, then we “ask whether the right was clearly established” at the time of
the violation. Id. “To defeat a claim of qualified immunity, the contours of an alleged
constitutional right must be ‘sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Smook, 457 F.3d at 813
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

       Sherbrooke’s first claim at issue on appeal is that Officer Sachs violated the
Fourth Amendment by stopping Sherbrooke’s truck. Sachs argues that the seizure was
constitutional because an objectively reasonable officer could have stopped the
vehicle either to exercise a community caretaking function, see Cady v. Dombrowski,
413 U.S. 433, 441 (1973), or to investigate a traffic violation for which there was
probable cause. As to the latter, probable cause that a driver has committed any traffic
violation, no matter how minor, provides sufficient justification under the Fourth
Amendment to stop a vehicle. Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001). The officer’s subjective motivation is irrelevant. Brigham City v. Stuart, 126
S. Ct. 1943, 1948 (2006). Even if the officer was influenced by an impermissible
motive, a traffic stop does not violate the driver’s rights under the Fourth Amendment
to be free from unreasonable seizures, as long as the circumstances, viewed
objectively, justified the seizure. Id.; Whren v. United States, 517 U.S. 806, 813
(1996).




                                          -5-
       Minnesota law prohibits the use of flashing lights on a vehicle except in limited
circumstances, including “as a means of indicating a right or left turn, or the presence
of a vehicular traffic hazard requiring unusual care in approaching, overtaking, or
passing.” Minn. Stat. § 169.64. Sherbrooke contends that his use of the flashers on
his truck was permissible under the quoted exception, because he used his lights as a
proper means of indicating that his vehicle presented a “vehicular traffic hazard.” His
rationale is that when a vehicle enters a roadway from a stopped position on the
shoulder, the vehicle presents a vehicular traffic hazard until such time as the vehicle
reaches the speed limit (in this case, fifty-five miles per hour), and that use of the
flashers is thus permissible until that speed is attained.

       We disagree with Sherbrooke’s interpretation of the Minnesota statutes. The
posted speed limit is evidence of only the maximum speed that is reasonable and
prudent on a roadway. Minn. Stat. § 169.14(2). There is no legal requirement that a
vehicle ever reach that speed. Vehicles may operate lawfully at reasonable and
prudent speeds below the maximum without constituting a vehicular traffic hazard.
Assuming Sherbrooke is correct that a vehicle may lawfully use its flashers to indicate
a traffic hazard when the vehicle first enters a roadway in Minnesota, use of the
flashers should cease when the vehicle reaches a speed that no longer presents a
hazard. A reasonable officer surely could believe that speeds close to, but less than,
the maximum posted limit present no traffic hazard. Sherbrooke concedes that he was
using his flashers until he reached the maximum speed limit of fifty-five miles per
hour. Because the speed of the vehicle during the preceding moments, when the
vehicle was traveling slightly under the speed limit, presented no apparent traffic
hazard, Officer Sachs had probable cause to stop Sherbrooke for improper use of
flashing lights.




                                          -6-
       Alternatively, even accepting Sherbrooke’s interpretation of the statutes for the
sake of argument, we conclude that an objectively reasonable officer in Sachs’s
position had probable cause to stop Sherbrooke’s truck for improper use of flashing
lights. It is undisputed that Sachs did not observe Sherbrooke at the point when he
was stopped at the side of the road to use the telephone before pulling back on to
Highway 59. By Sherbrooke’s own testimony, the distance from where Sherbrooke
pulled off the road to Sachs’s location was 1,100 feet, but Sherbrooke could not
observe Sachs (and vice-versa) until after Sherbrooke came around a curve on the
highway, at a distance between 600 and 900 feet from Sachs’s squad car. (Sherbrooke
Dep. 59, Appellant’s App. A-33). Thus, even assuming it was permissible for
Sherbrooke to operate his flashers from the time he reentered the highway until his
vehicle reached fifty-five miles per hour, and even assuming any reasonable officer
would have been expected to know that interpretation of the statute was correct, a
reasonable officer in Sachs’s position would not have known that Sherbrooke recently
reentered the roadway. From his location, Sachs simply observed Sherbrooke’s
vehicle come around the curve with its flashing lights activated. A reasonable officer
in those circumstances had probable cause to believe that Sherbrooke was in violation
of the prohibition on flashing lights in Minn. Stat. § 169.64, because there was no
apparent vehicular traffic hazard. Even if Sherbrooke, unbeknownst to Sachs, actually
was using his flashers to alert other drivers after reentering the road from a stopped
position, a law enforcement officer does not violate the Fourth Amendment if he
seizes a suspect under the reasonable, but mistaken, belief that the suspect committed
an offense. United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005).

      For these reasons, we conclude that Officer Sachs had probable cause to stop
Sherbrooke for improper use of flashing lights. Accordingly, Sachs did not violate
Sherbrooke’s constitutional rights under the Fourth Amendment, and Sachs’s motion
for summary judgment on this point should have been granted. In view of our
conclusion regarding probable cause, we need not consider whether the seizure also
was justified by the officer’s exercise of his community caretaking function.

                                          -7-
       Sherbrooke’s second claim at issue on appeal relates to his telephone call to his
attorney while in custody. The police in Pelican Rapids had a standard operating
procedure of making an audio and video recording of detainees who were awaiting an
Intoxilyzer test, with the stated purpose of preventing any action that would call into
question the validity of the ensuing test. The officers investigating Sherbrooke
activated the recording equipment in accordance with this procedure, so Sherbrooke’s
speech was recorded while he was in the police station. Before taking the breath test,
while in the presence of Officers Sachs and Leabo, Sherbrooke called his attorney to
ask for legal advice. Sherbrooke’s end of this telephone call was recorded by the
equipment that was already activated.

        The district court held that the act of recording Sherbrooke’s speech during the
telephone conversation with his attorney was an unconstitutional search. We disagree,
because Sherbrooke had no reasonable expectation of privacy in what he said during
this call. “What a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389
U.S. 347, 351 (1967). Sherbrooke placed this telephone call in an open room, in
which the presence of police officers was open and obvious. The tape recording even
shows that Sherbrooke acknowledged, near the end of the conversation, that his
statements were being recorded, and that this was “fine” with him. Under these
circumstances, Sherbrooke could not reasonably expect that the conversation was
private, and there was no search within the meaning of the Fourth Amendment. See
United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003); United States v. Gann,
732 F.2d 714, 723 (9th Cir. 1984). That communications between an attorney and
client generally are privileged when conducted privately does not mean that a
conversation knowingly conducted in the presence of others is privileged or private.
Sherbrooke’s contention that the police allegedly prevented him from placing a private
call to his attorney is properly addressed, if at all, under constitutional provisions other




                                            -8-
than the Fourth Amendment. Cf. Friedman v. Comm’r of Public Safety, 473 N.W.2d
828, 835 (Minn. 1991).1

       The City’s appeal is inextricably intertwined with the appeal of the police
officers. Because the police officers did not violate Sherbrooke’s constitutional rights
under the Fourth Amendment, there can be no municipal liability under the Fourth
Amendment for an unconstitutional policy. McCoy v. City of Monticello, 411 F.3d
920, 922 (8th Cir. 2005). Accordingly, the City is also entitled to summary judgment
on that claim.

                                   *       *       *

       For the foregoing reasons, we reverse the district court’s orders denying the
officers’ motions for summary judgment based on qualified immunity, denying the
City’s motion for summary judgment, and granting in part Sherbrooke’s motion for
summary judgment. The case is remanded for further proceedings consistent with this
opinion.

BEAM, Circuit Judge, concurring in part and dissenting in part.

       As the panel majority notes, a police officer may legitimately detain the
operator of a motor vehicle if he observes even a minor traffic offense. United States
v. Eldridge, 984 F.2d 943, 948 (8th Cir. 1993). But it is equally clear that the Fourth
Amendment establishes an absolute right for a motorist to be free from a pretextual
traffic stop. Id. at 947. Such a stop occurred in this case, possibly because Officer
Sachs and other members of the Pelican Rapids Police Department were engaged in
a contest to see which officer could make the most driving-while-intoxicated (DWI)

      1
       Sherbrooke also alleged that the recording violated his rights under the Fifth
and Sixth Amendments to the Constitution of the United States, but the district court
dismissed those claims.

                                          -9-
stops that particular weekend. Accordingly, I dissent from the court's reversal of the
district court and the court's grant of qualified immunity to Officer Sachs.

                                           I.

       "We review a district court's qualified immunity determination on summary
judgment de novo." Davis v. Hall, 375 F.3d 703, 711 (8th Cir. 2004). "This standard
of review requires us to view the summary judgment record in the light most favorable
to [Sherbrooke], and to afford him all reasonable inferences to be drawn from that
record." Id. (emphasis added). Under this approach, the facts are slightly different
from those adopted by the court in its opinion.

        As Mr. Sherbrooke was returning home from his class reunion, he pulled off the
improved portion of Minnesota Highway 59 onto the side of the road. He parked for
a short period of time to look up a telephone number and to make a call. During this
stop, he activated his flashing hazard lights to alert traffic moving along the highway.
Sometime during Sherbrooke's pause, Sachs pulled up to a stop sign on a road
intersecting Highway 59 ahead of Sherbrooke's line of travel. Sachs' vehicle remained
in this position until Sherbrooke had returned to the paved portion of the roadway and
passed along Highway 59 in front of him. Sachs could not see Sherbrooke's stopped
vehicle with its lights flashing from his position at the sign. Sherbrooke testified that
he later measured the distance between the place at which he stopped and the location
of Sachs' police car at the stop sign and it was 1100 feet, his measuring device being
within "two percent" accurate. Appellants' Appendix at 33. He further testified that
the line of sight between the vehicles was 900 feet, saying "you just get going a little
bit because its on a curve . . . [a]nd then you can see." Id. Sherbrooke also testified
that he re-entered the highway with his lights flashing, accelerated up to the posted
speed limit of 55 miles-per-hour and then turned off his hazard lights. Id. at 32.
According to his testimony, he was 400 feet from Sachs' waiting vehicle when he
turned off his hazard lights, and it was not until reaching this point that he could see

                                          -10-
that the stopped vehicle was a police car. Id. at 33. Thus, as Sherbrooke accelerated
from the road-side stop to a speed of 55 miles-per-hour over a total distance of 700
feet, Officer Sachs observed Sherbrooke traveling with hazard lights flashing over a
distance of no more than 500 feet. Given a speed conversion of one mile-per-hour
equals 1.47 seconds, Officer Sachs could have observed Mr. Sherbrooke traveling
along the highway with his hazard lights on for no more than eight to fifteen seconds
and probably less.

                                          II.

       The court contends that a reasonable police officer under the same
circumstances was entitled to find that Sherbrooke was violating Minnesota Statute
§ 169.64, subdivision 3, the only statutory section dealing with use of flashing hazard
lights. I disagree.

      At the outset, I note that the court slightly glosses the facts to create subtle
evidentiary inferences in favor of Sachs, a clear violation of binding precedent. Davis,
375 F.3d at 711. Even without this approach, the court's statutory interpretation is off
the mark.

      Section 169.64, subdivision 3, provides, in pertinent part:

      Flashing lights. Flashing lights are prohibited, except on . . . any vehicle
      as a means of indicating . . . the presence of a vehicular traffic hazard
      requiring unusual care in approaching, overtaking, or passing.


       So far as I can determine, Minnesota courts have construed this subdivision of
the statute only once. Dawydowycz v. Quady, 220 N.W.2d 478 (Minn. 1974)
indicates that operating a vehicle at reduced speed in the presence of a traffic hazard
is both permitted and required by section 169.64, subdivision 3. Id. at 480 (under this

                                         -11-
section, a flashing light indicates the presence of a traffic hazard requiring reduced
speed). When a motor vehicle proceeds at night from a stopped position on the road
shoulder onto a paved state highway with a 55 mile-per-hour maximum speed limit,
as in this case, it is inconceivable that the court can quarrel with the idea that an
"approaching, overtaking, or passing" hazard exists by virtue of the operation or
possible operation of other moving vehicles using or potentially using the same
highway at the same time, and I do not necessarily read the court's opinion as doing
so. Any evaluation of the existence of a hazard, or not, must involve both the vehicle
proceeding from a stopped position with flashing lights and the use or contemplated
use of the same traveled portion of the roadway by other vehicles, especially when the
roadway has curves, as here, that tend to reduce lines of vision between traveling,
approaching, overtaking and passing vehicles.

      Notwithstanding, the court focuses only on Sherbrooke's truck and reaches the
unusual and, in my view, unsupportable conclusion that the instant his slower-moving
motor vehicle reached a "reasonable and prudent speed[]," whatever speed that may
have been, any traffic hazard automatically abated and it became unlawful for him to
continue to operate the flashing lights. Ante at 6. Such speed, says the court, will
always be less than the posted maximum speed. Ante at 6.

        This idea turns a proper interpretation of section 169.64, subdivision 3, on its
head. And, the record indicates that Officer Sachs must have thought so as well. He
testified that he stopped Sherbrooke, not because he was violating subdivision 3, but
because upon seeing the flashing hazard lights in operation, he exercised his
community caretaker obligation to see if Sherbrooke or a passenger might need help.
Appellants' Appendix at 70. Sachs' later actions, as clearly enunciated in the record,
totally undermine any argument that the stop was actually an exercise of this caretaker
obligation. For this reason, the court properly disregards this claim by Sachs.




                                         -12-
       The court's construction of section 169.64, subdivision 3 defies common sense,2
disregards the rules of statutory interpretation, ignores studies of motor vehicle
operation and places the statute's meaning in the hands of the police officers charged
with enforcing, not interpreting, the law. Any assumption by a driver in Sherbrooke's
shoes that an overtaking motorist, possibly exceeding the posted speed limit, needs
warning that there is an accelerating vehicle in the roadway, is, according to the
court's rationale, a traffic violation. With this result I disagree. Under the undisputed
facts here, "reasonable and prudent" driving required continuing, not less, warning.

       Minnesota law permits a driver to stop and park beside a paved highway so long
as the vehicle is off of the improved portion of the road. Minn. Stat. § 169.32(a). So,
Sherbrooke violated no traffic regulation when he stopped to make the telephone call.
And, as the court states, there is no legal requirement that a vehicle ever reach the
maximum-posted speed. Ante at 6. This is correct, of course, because in Minnesota,
absent the presence of a special hazard, any speed not in excess of a posted maximum
is reasonable and prudent. Minn. Stat. § 169.14, subd. 2(3). But as Dawydowycz
notes, section 169.64, subdivision 3, requires that the speed of traveling, approaching,
overtaking or passing vehicles be reduced in the presence of a traffic hazard. 220
N.W.2d at 480. Thus, when Sherbrooke moved from his stop onto the paved portion


      2
         The court takes issue with my characterization of its interpretation of the
statute. Cf. ante at 6. I continue to believe my analysis appropriate in the
circumstances of this case. I agree with the court that "[v]ehicles may operate
lawfully at reasonable and prudent speeds below the maximum without constituting
a vehicular traffic hazard." In the abstract, they can, of course. But, that is not the
issue here. The issue is whether Sherbrooke violated section 169.64 by operating
hazard flashers at speeds up to 55 miles-per-hour on Route 59 while accelerating from
a stop when, as shown by Minnesota studies, up to 75 percent of overtaking vehicles
will almost certainly be exceeding the speed limit. Common sense indicates that a
traffic hazard continues to be presented under such circumstances and Sherbrooke was
not violating the law.


                                          -13-
of Highway 59, subdivision 3 not only permitted him to operate his hazard lights but
the Minnesota Supreme Court's reasoning in Dawydowycz required him to do so.
And, subdivision 3 permitted him to continue to do so at least until his vehicle had
reached the prudent velocity of any conceivable overtaking traffic.

       In 1997, a national survey of speeding and other unsafe driving activities was
commissioned by the United States Department of Transportation. More than one in
five respondents to that survey (23 percent) admitted they had driven at least ten miles
over the posted speed limit on an interstate highway within the past week. See U.S.
Dep't of Transp., National Survey of Speeding and Other Unsafe Driving Activities,
Vol. II: Driver Attitudes and Behaviors: Executive Summary, available at
http://www.nhtsa.dot.gov/people/injury/aggressive/unsafe/att-beh/Chapt1-2.html.

       Additionally, speeding is a significant contributing factor in many fatal
accidents. For example, in the state of Minnesota, "illegal or unsafe speed was a
contributing factor in 764 fatal crashes resulting in 843 deaths" between 2002 and
2006. Minn. Dep't of Public Safety, Office of Traffic Safety, 2006 Minnesota
Speeding Facts, available at http://www.dps.state.mn.us/ots/enforcement_programs/
default.asp. A study conducted by the Minnesota Transportation Department "showed
that 75 percent of the vehicles surveyed in 55-mph zones were speeding, the highest
rate among reporting states that conducted similar surveys for the federal
government." Robert Whereatt, Senate committee defeats attempt to eliminate
loophole in speed law, Star Tribune, Mar. 31, 1989, at 4B.

       With these studies in mind, it is clear that a driver entering upon an improved
highway at a reduced speed creates a temporary hazard for other traffic that may be
in the area, allowing the prudent use of flashing hazard lights, at least until the vehicle
reaches the posted maximum speed limit. Accordingly, Sherbrooke's actions
complied with any reasonable interpretation of section 169.64, subdivision 3.



                                           -14-
       The further and alternative idea expressed by the court is that an officer
observing a vehicle "come around the curve with its flashing lights activated" may
reasonably (even mistakenly) believe that the vehicle operator is violating section
169.64, subdivision 3. Ante at 7. Standing along, this is an even more untenable
holding. Indeed, if this is a correct expression of the law under the circumstances of
this case, it is hard to imagine any situation, no matter how unlikely, that would not
support a police officer's detention of a passing motorist. The court seems to be
saying that a reasonable officer may jump to almost any conclusion, even a mistaken
one, and use the circumstance to make a lawful arrest or detention. There is no
precedent for this argument.

       The court cites United States v. Smart, 393 F.3d 767 (8th Cir. 2005) in support
of its contention. But Smart is so factually off the mark here that it is totally
inapposite. The validity of a stop depends upon whether it is objectively reasonable
in the circumstances. Id. at 770. Thus, there needed to be a reasonable evidentiary
predicate for the creation of an "objectively reasonable basis [for stopping
Sherbrooke's] vehicle." Id. In Smart an Iowa police officer observed Smart driving
a motor vehicle in Iowa without a front license plate. Iowa law, of course, requires
the display of two license plates. The officer also knew that other states permitted
operation with but one plate, but he did not remember which states nor could he
discern the state of issue of the plate on Smart's car. So, the officer stopped Smart to
make this determination. It turned out to be a Georgia plate on a validly registered
Georgia automobile, a state that requires but one plate. Thus, the officer was
reasonably mistaken under the circumstances permitting a valid stop.

       In an attempt to apply Smart in support of Sachs' motion, the court bifurcates
(or, perhaps, trifurcates) the undisputed material facts, isolating a 500-feet portion of
the roadway evidence while totally disregarding the balance of the proof. But, to the
contrary, Sherbrooke is entitled to even-handed consideration of all material facts, not
just those purportedly beneficial to the court's argument on behalf of Sachs. And,

                                          -15-
Sherbrooke is, likewise, entitled to all favorable inferences that may be gleaned from
all of the material evidence in the record.

        There were simply no violations of state law here. The stop of Sherbrooke by
Sachs was a pretext for making another DWI arrest that weekend. While the outcome
at trial is another matter, a trial is nonetheless required on this issue.

      I concur in the balance of the court's opinion. I dissent from its finding (or
mistaken finding) of a violation of Minnesota Statute § 169.64, subdivision 3, and
would affirm the district court's denial of qualified immunity on that discrete issue.
                       ______________________________




                                        -16-
