                         This opinion will be unpublished and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
                                    A16-0700

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                  Devin Keith Barner,
                                     Respondent.

                               Filed November 21, 2016
                                      Affirmed
                                   Rodenberg, Judge

                            Hennepin County District Court
                              File No. 27-CR-15-28883

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

Michael O. Freeman, Hennepin County Attorney, James R. Hanneman, Assistant County
Attorney, Minneapolis, Minnesota (for appellant)

Mary Moriarty, Hennepin County Public Defender, Laura G. Heinrich, Assistant Public
Defender, Minneapolis, Minnesota (for respondent)

      Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      The state appeals from the district court’s pretrial order suppressing evidence found

after respondent’s arrest. The district court determined that the arrest was invalid under
Minn. R. Crim. P. 6.01, and it therefore suppressed the evidence seized incident to the

arrest. The state argues on appeal that the arrest was both constitutional and proper under

rule 6.01. We affirm.

                                          FACTS

       On October 8, 2015, a police officer saw a truck being driven by a person he knew

to be respondent Devin Barner. From earlier contacts with respondent, the officer had

learned that respondent did not have a valid driver’s license. He therefore conducted a

traffic stop, arrested respondent, and searched him. During the search, officers found

plastic bags containing illegal drugs. The state then charged respondent with drug crimes

based on the evidence the officers recovered. Respondent moved to suppress the evidence

seized from him after the traffic stop, arguing that the arrest and search were

unconstitutional, and that the arrest violated Minn. R. Crim. P. 6.01, which provides that,

in misdemeanor cases, peace officers must, in the absence of a warrant, “issue a citation

and release the defendant,” except in identified circumstances..

       At the suppression hearing, the arresting officer and respondent testified. A squad

video of the arrest, with an audio track, was admitted into evidence. The parties agreed

that the arresting officer had interacted with respondent before the October 8 stop, and that

the officer had learned during an earlier interaction that respondent’s driver’s license was

suspended. The officer had warned respondent to get a valid license before driving again.

The officer testified that his most recent interaction with respondent took place one or two

weeks before the October 8 stop, during which he confirmed that respondent had not

obtained a valid driver’s license.


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          Concerning the October 8 stop, the officer testified that he recognized respondent’s

truck and was able to identify respondent by sight. The officer signaled respondent to pull

over, and told his partner that he intended to arrest respondent for driving without a license.

The squad video shows that the officer approached respondent’s truck, and the officer can

be heard on the recording’s audio track asking respondent if he had gotten his license yet.

Respondent’s answer to the question is inaudible on the recording, and the record contains

no testimony concerning respondent’s reply. The officer arrested respondent. The record

contains no evidence that, before the arrest, the officer verified respondent’s unlicensed

status.

          The district court granted respondent’s motion to suppress, stating that the arrest

was invalid because it violated Minn. R. Crim. P. 6.01. The state appeals from that pretrial

order.

                                        DECISION

The pretrial ruling had a critical impact

          “When the state appeals a pretrial order, it must show clearly and unequivocally

(1) that the ruling was erroneous and (2) that the order will have a ‘critical impact’ on its

ability to prosecute the case.” State v. McLeod, 705 N.W.2d 776, 784 (Minn. 2005)

(quoting State v. Anderson, 683 N.W.2d 818, 821 (Minn. 2004), and State v. Richardson,

622 N.W.2d 823, 825 (Minn. 2005)); see also Minn. R. Crim. P. 28.04, subd. 2(2) (setting

out the procedure for the state to appeal a pretrial order).

          The parties agree that the district court’s pretrial suppression order has a critical

impact on the state’s ability to prosecute the case. The evidence necessary to show that


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appellant committed a drug crime has been suppressed, leaving the state with insufficient

evidence to proceed to trial. The state has demonstrated critical impact entitling it to appeal

pretrial.

Standard of review on appeal

       The parties disagree on the standard of review we should apply to the district court’s

suppression order for what it determined was a violation by the state of Minn. R. Crim. P.

6.01. The state argues that we should defer not to the district court in its rule 6.01

determination, but should instead defer to the officer’s opinion when deciding whether the

warrantless arrest for committing a misdemeanor “reasonably appeared” to fall under an

exception to Minn. R. Crim. P. 6.01. Respondent argues that we should defer to the district

court in all matters, including errors of law.

       We need not reach the questions of whether rule 6.01 prohibits the arrest, or what

would be the proper remedy for a rule 6.01 violation, because we conclude that the arrest

was without probable cause in violation of the Fourth Amendment of the United States

Constitution and article 1, section 10 of the Minnesota Constitution.

Respondent preserved the constitutional issues

       Respondent argues on appeal that his arrest was both unconstitutional and in

violation of Minn. R. Crim. P. 6.01. Appellant argues that respondent forfeited any claim

that the stop and arrest violated the Fourth Amendment of the United States Constitution

and article 1, section 10 of the Minnesota Constitution because those issues were not raised

to the district court. We “generally will not decide issues which were not raised before the




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district court, including constitutional questions of criminal procedure.” Roby v. State, 547

N.W.2d 354, 357 (Minn. 1996).

       The record shows that respondent argued to the district court that the stop and search

were unconstitutional. Respondent argued at the suppression hearing that “it’s clear that

the officers did violate [appellant’s] constitutional rights by making this, in my opinion,

unjustified stop and search and arrest right away.” The constitutionality of the stop and

arrest were preserved.

The traffic stop was supported by reasonable and articulable suspicion

       We next consider whether the traffic stop was proper. The Fourth Amendment of

the United States Constitution and article 1, section 10 of the Minnesota Constitution both

protect the “right of the people to be secure in their persons, houses, papers, and effects”

against “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I,

§ 10. The United States Supreme Court has held that the Fourth Amendment requires an

officer to have “a reasonable, articulable suspicion that criminal activity is afoot” in order

to “conduct a brief, investigatory stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct.

673, 675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968)).

The Minnesota Supreme Court has held that this same standard applies when evaluating

“the reasonableness of searches and seizures during traffic stops even when a minor law

has been violated.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation

omitted). This standard “is not high” and, while it is less than the probable cause standard,

it still requires “at least a minimal level of objective justification for making the stop.” Id.

(quotation omitted).


                                               5
       Respondent does not dispute the state’s claim that the arresting officer had learned

one or two weeks before the October 8 stop that respondent did not have a valid driver’s

license. The only dispute is whether, based on these facts, the officer had a reasonable

suspicion to stop respondent. The fact that the officer had recently confirmed that

respondent did not then have a valid license and then saw respondent driving a truck was

sufficient to support a reasonable, articulable suspicion that respondent was driving without

a valid license. Therefore, the stop was constitutional.

The officer lacked probable cause to arrest appellant

       Finally, we turn to whether the officer had probable cause to arrest respondent. An

officer has probable cause to arrest a person when “objective facts are such that under the

circumstances a person of ordinary care and prudence would entertain an honest and strong

suspicion that a crime has been committed.” State v. Wynne, 552 N.W.2d 218, 221 (Minn.

1996) (quotation omitted). Officers cannot use the fruits of their search to justify it. Rios

v. United States, 364 U.S. 253, 261-62, 80 S. Ct. 1431, 1436 (1960) (holding that after an

arrest occurred “nothing that happened thereafter could make that arrest lawful, or justify

a search as its incident”). An officer may arrest a person who commits a “public offense”

in the officer’s presence. Minn. Stat. § 629.34, subd. 1(c)(1) (2014). This includes

misdemeanor offenses “committed or attempted in the officer’s presence.” State v.

Richmond, 602 N.W.2d 647, 653 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).

       Here, the officer based the arrest on his previous knowledge that respondent did not

have a valid driver’s license as of several weeks before October 8. The squad video shows

the officer approach respondent’s vehicle, and he can be heard asking respondent whether


                                             6
he had gotten a valid license yet. There is no recording of respondent’s reply. As the

district court found, the response is inaudible. Neither the officer nor respondent testified

to what respondent said in response to the question. The officer made no claim that he

verified respondent’s unlicensed status before the arrest.       The only record evidence

supporting the arrest of respondent is the officer’s knowledge that respondent did not have

a valid license one or two weeks before the arrest. While this is sufficient to support a

reasonable suspicion that respondent was driving without a license, it is well short of

probable cause to arrest respondent. At a minimum, the officer would have needed some

confirmation, either by respondent’s admission or by consulting official driver’s license

records, that respondent was in fact unlicensed. The record contains nothing to have

confirmed respondent’s unlicensed status before he was arrested. Therefore, and on this

record, the arrest was without probable cause and unconstitutional. The arrest is the only

basis advanced by the state as having justified the search of appellant. That officers later

confirmed respondent’s suspected unlicensed status and found evidence of drugs in the

search conducted after the arrest does not justify the search.

       Because respondent’s arrest was unconstitutional, the evidence seized pursuant to it

must be suppressed. State v. Harris, 590 N.W.2d 90, 97 (Minn. 1999). The district court’s

suppression order was not in error.

       Affirmed.




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