                        This opinion will be unpublished and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
                                   A15-0331

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                              Michael Donovan Krauss,
                                     Appellant.

                               Filed February 1, 2016
                                      Affirmed
                                     Kirk, Judge

                             Mower County District Court
                               File No. 50-CR-13-360

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota; and

Kristen Nelsen, Mower County Attorney, Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Kirk, Presiding Judge; Stauber, Judge; and Kalitowski,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

KIRK, Judge

       Appellant challenges his convictions of ineligible person in possession of a firearm

and fifth-degree possession of a controlled substance, arguing that the district court erred

by declining to suppress evidence because his arrest was unlawful. We affirm.

                                            FACTS

       On February 15, 2013, a Mower County deputy stopped a Cadillac driving south on

Highway 218 near Austin for speeding. Appellant Michael Donovan Krauss was driving

and B.S. was in the front passenger seat.

       The deputy ran the Cadillac’s license plate and learned that it was registered to C.B.

He then approached the Cadillac, where appellant identified himself by name and date of

birth, but was unable to produce his driver’s license or proof of insurance. Appellant

explained to the deputy that he recently purchased the Cadillac from C.B. and that he

thought that the vehicle was insured. Although appellant told the deputy that he had a

handwritten receipt confirming the purchase of the Cadillac, he was unable to locate it.

Appellant also told the deputy that once they were free to leave, B.S. would drive.

       When the deputy asked where he was from, appellant stated that he was originally

from California but that he currently resides in Michigan.         He did not provide an

explanation for being in the Austin area. The deputy testified at the omnibus hearing that

the Cadillac contained “a lot of stuff,” including multiple suitcases, garment bags, and

personal electronics.




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       The deputy ran the names of both appellant and B.S. and learned that neither of

them had a Minnesota driver’s license and that B.S.’s California license was revoked. The

deputy then placed appellant under arrest for driving without a license, no proof of

insurance, and speeding, and placed him in the back of his squad vehicle. The deputy

testified that he placed appellant under arrest because “[t]he [Cadillac] was packed like

they were moving,” “[t]hey were heading south away from Austin,” and that he wanted to

“hold him for bail to ensure a court appearance.”

       The deputy returned to the Cadillac to advise B.S. that she would not be allowed to

drive the vehicle. The deputy testified that when she rolled down her window he observed

“a moderate odor of marijuana.” The deputy asked B.S. if she knew of any marijuana in

the vehicle and she responded that there were “some marijuana cigarette roaches in the

ashtray.” The deputy did not see any roaches from where he was standing, but he did see

“a green, leafy substance,” that he recognized as marijuana located in the carpet and on the

center console.

       The deputy placed B.S. in the back of a squad vehicle and began to search the

Cadillac. He found a gallon-size bag containing a considerable amount of marijuana in the

glove box. The deputy had the vehicle towed back to the law enforcement center because

of the cold weather. During an inventory search, he also discovered a pistol in the trunk.

       Appellant was charged with ineligible person in possession of a firearm and fifth-

degree possession of a controlled substance. Appellant filed three separate motions to

suppress the evidence found in the vehicle and all three were denied by the district court.

A jury trial was held. At trial, the deputy testified about the discovery of the pistol and the


                                              3
marijuana, and B.S. testified that the pistol and marijuana belonged to appellant. The jury

found appellant guilty of both counts. This appeal follows.

                                      DECISION

       In reviewing a district court’s pretrial order on a motion to suppress evidence, we

review the court’s factual findings under a clearly erroneous standard and its legal

determinations de novo. State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009). “We may

independently review facts that are not in dispute and determine, as a matter of law,

whether the evidence need be suppressed.” Id. (citation omitted).

       Appellant’s argument for suppression hinges on his contention that his arrest was

impermissible under Minn. R. Crim. P. 6.01, which provides:

              Subd. 1. Mandatory Citation Issuance in Misdemeanor Cases.

              (a) By Arresting Officer. In misdemeanor cases, peace officers
              who decide to proceed with prosecution and who act without a
              warrant must issue a citation and release the defendant unless
              it reasonably appears:
                      (1) the person must be detained to prevent bodily injury
              to that person or another;
                      (2) further criminal conduct will occur; or
                      (3) a substantial likelihood exists that the person will not
              respond to the citation.

In denying appellant’s motion, the district court concluded that subparts 2 and 3 of the rule

were satisfied because arresting appellant “ensured he would respond to the citation and

prevented further criminal conduct of unlawful traffic violations.” We agree.

       First, it was reasonable for the deputy to conclude that an arrest was necessary to

prevent further criminal conduct. See Minn. R. Crim. P. 6.01, subd. 1(a)(2). The deputy

testified that appellant was unable to produce a driver’s license or proof of insurance and


                                               4
that B.S.’s California license was revoked. He also testified that, despite telling B.S. that

she could contact C.B. and having dispatch attempt to locate C.B.’s phone number, he was

unable to determine if the Cadillac was insured. Therefore, had the deputy cited and

released appellant, appellant or B.S. would likely have operated the Cadillac without a

valid driver’s license and proof of insurance. See Minn. Stat. §§ 169.791, subd. 2(a)

(stating “[e]very driver shall have in possession at all times when operating a vehicle . . .

proof of insurance . . . covering the vehicle being operated”), 171.08 (stating “[e]very

licensee shall have [their driver’s] license in immediate possession at all times when

operating a motor vehicle”), and 171.24, subd. 2 (2012) (stating it is a misdemeanor for an

individual to operate a motor vehicle while the person’s license is revoked).

       Appellant argues that “while neither [appellant] nor [B.S.] had a driver’s license,

the record does not conclusively show that they could not have called someone to come

meet them and drive the [Cadillac].” But this argument fails because even if someone with

a valid driver’s license came to drive the Cadillac, that individual would still be operating

the vehicle without proof of insurance. See Minn. Stat. § 169.791, subd. 2(a).

       Second, it was reasonable for the deputy to conclude that there was a substantial

likelihood that appellant would not respond to the citations. See Minn. R. Crim. P. 6.01,

subd. 1(a)(3). The deputy testified that when he stopped appellant he was traveling south

on Highway 218, away from Austin, and that there were multiple suitcases, garment bags,

and personal electronics in the vehicle. He also testified that appellant stated that he was

from California and Michigan and did not provide an explanation for why he was in the

Austin area. Further, appellant was driving a Cadillac registered to another person, and he


                                             5
could not prove that the vehicle was lawfully in his possession.          Therefore, it was

reasonable for the deputy to arrest appellant to ensure he would respond to the citations.

       Appellant argues that his case is unlike Carradine v. State because there “was no

evidence where [appellant] was going generally, or whether he was actually leaving the

state specifically.” 494 N.W.2d 77, 83 (Minn. App. 1992) (concluding that a “reasonably

competent law enforcement officer” could believe that there was a substantial likelihood

that an individual would fail to respond to a citation where the record demonstrated that

the individual and his traveling companion were not Minnesota residents and that the

individual was driving at a high rate of speed toward the airport), aff’d in part, rev’d in

part on other grounds, 511 N.W.2d 733 (Minn. 1994). This argument is not persuasive.

The deputy did not need to know definitively where appellant was going or that he was

leaving the state in order to make a valid arrest. Minn. R. Crim. P. 6.01 only requires that

it “reasonably appear” that a substantial likelihood exists that the person will not respond

to the citation.

       Further, the other cases appellant relies on are distinguishable from the facts of the

instant case. In State v. Varnado, the supreme court noted that “[t]he record is absent of

facts supporting a belief that a custodial arrest was necessary to prevent Varnado from

hurting someone or to ensure that she would respond to a citation.” 582 N.W.2d 886, 893

(Minn. 1998). In In re Welfare of M.D.B., the officer “did not testify that he had reason to

believe that securing appellant was necessary to prevent injury or that there was a

substantial likelihood that appellant would fail to respond to a citation.” 601 N.W.2d 214,

217 (Minn. Ct. App. 1999), review denied (Minn. Jan. 18, 2000). Here, the record contains


                                             6
ample facts supporting a belief that custodial arrest was necessary to ensure appellant

would respond to the citations, including the deputy’s testimony that he had a reason to

believe that there was a substantial likelihood that appellant would fail to respond to the

citations.

       In sum, the district court did not err by concluding that appellant’s arrest was

permissible under Minn. R. Crim. P. 6.01 and by denying his motions to suppress.

       Affirmed.




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