                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2012

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Joseph Gene Hoberg,
                                     Appellant.

                                 Filed July 28, 2014
                                      Affirmed
                                   Larkin, Judge

                           Hennepin County District Court
                             File No. 27-CR-13-10216


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

Michael Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget K. Sabo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Stauber, Presiding Judge; Larkin, Judge; and

Toussaint, Judge.




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                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his conviction of fifth-degree possession of a controlled

substance, arguing that the district court erred by denying his motion to suppress the

evidence that supports his conviction.      Because the district court did not err in its

suppression ruling, we affirm.

                                          FACTS

       Minneapolis police officers arrested appellant Joseph Gene Hoberg for possession

of drug paraphernalia. When Hoberg was booked at the Hennepin County jail, a deputy

found three Xanax pills on Hoberg during a routine jail-intake search. Respondent State

of Minnesota charged Hoberg with fifth-degree controlled substance possession.

       Hoberg moved the district court to suppress the Xanax pills, arguing that his arrest

was illegal and that the pills were the fruit of his illegal arrest. The motion was submitted

to the district court for a decision without an evidentiary hearing, based on the written

arguments of counsel and the information contained in the complaint and relevant police

reports.

       After the district court denied Hoberg’s motion to suppress, Hoberg waived his

right to a jury trial and agreed to a trial under Minn. R. Crim. P. 26.01, subd. 4. The

district court found Hoberg guilty of fifth-degree controlled substance possession and

imposed a stayed prison sentence. Hoberg appeals the judgment of conviction, arguing

that the district court erred by denying his motion to suppress.




                                             2
                                      DECISION

       Hoberg argues that “because law enforcement officers lacked authority to arrest

[him], the evidence discovered during his search must be suppressed.” He contends that

“law enforcement officers had probable cause to suspect [him] of nothing more than a

petty misdemeanor offense for which arrest is not authorized.”               There are four

components to Hoberg’s argument: (1) under Minn. Stat. § 152.092 (2012), possession

of drug paraphernalia is a petty misdemeanor offense and Minneapolis, Minn., Code of

Ordinances § 223.235 (2003), which makes possession of drug paraphernalia in “a public

place” a misdemeanor offense, is preempted by state law; (2) even if state law does not

preempt section 223.235, the police lacked probable cause to believe Hoberg had violated

section 223.235 because a car (where the paraphernalia was found) is not a public place;

(3) Hoberg’s arrest cannot be justified on any other grounds, specifically, probable cause

to believe that he committed the misdemeanor offense of careless driving; and (4) Minn.

R. Crim. P. 6.01, prohibits custodial arrests for petty-misdemeanor offenses.

       For the reasons that follow, we conclude that the arresting officer had probable

cause to arrest Hoberg for the misdemeanor offense of careless driving and that his

custodial arrest was lawful under rule 6.01.

                                               I.

       “When reviewing a pretrial order on a motion to suppress [evidence, appellate

courts] review the district court’s factual findings under [a] clearly erroneous standard . . .

[and] the district court’s legal determinations, including a determination of probable

cause, de novo.” State v. Milton, 821 N.W.2d 789, 798 (Minn. 2012) (citation omitted).


                                               3
       Hoberg’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 a citation.

              If the officer has already arrested the person, a citation must
              issue in lieu of continued detention, and the person must be
              released, unless any of the circumstances in subd. 1(a)(1)-(3)
              above exist.

                     ....

                      . . . (c) Offenses Not Punishable by Incarceration. A
              citation must be issued for petty misdemeanors and
              misdemeanors not punishable by incarceration. If an arrest
              has been made, a citation must be issued in lieu of continued
              detention.

       “[I]n all cases of lawful custodial arrest, the police may fully search the [arrested]

person incident to the arrest,” but under rule 6.01, “an officer ordinarily may not arrest a

person without a warrant for a petty misdemeanor.” State v. Martin, 253 N.W.2d 404,

405-06 (Minn. 1977).

       In denying Hoberg’s motion, the district court reasoned, in part, that the “police

had probable cause to believe, at the very least, that [Hoberg], intoxicated and slumped in

a vehicle blocking a public roadway, was in violation of the careless driving statute,”


                                             4
which is a misdemeanor offense. See Minn. Stat. § 169.13, subd. 2 (2012) (defining the

offense of careless driving as a misdemeanor offense). The district court further reasoned

that each of the exceptions to the rule requiring a mandatory citation and release in

misdemeanor cases was satisfied. See Minn. R. Crim. P. 6.01, subd. 1(a)(1)-(3).

       Probable Cause to Arrest for Careless Driving

       We first consider whether there was probable cause to arrest Hoberg for careless

driving.   Whether the police had probable cause to arrest is a determination of

constitutional rights, and an appellate court makes an independent review of the facts to

determine the reasonableness of the police officer’s actions. State v. Olson, 436 N.W.2d

92, 94 (Minn. 1989). The “test of probable cause to arrest is whether the 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.” In re Welfare

of G.M., 560 N.W.2d 687, 695 (Minn. 1997). “The lawfulness of an arrest is determined

by an objective standard that takes into account the totality of the circumstances,

including the expertise and experience of the arresting police officers.” State v. Hawkins,

622 N.W.2d 576, 580 (Minn. App. 2001). “[I]f the objective standard is met, we will not

suppress evidence or invalidate an arrest even if the officer making the arrest or

conducting the search based his or her action on the wrong ground or had an improper

motive.” Id. at 579-80 (quotation omitted).

       Careless driving is defined as follows:

              Any person who operates or halts any vehicle upon any street
              or highway carelessly or heedlessly in disregard of the rights
              of others, or in a manner that endangers or is likely to


                                              5
                endanger any property or any person, including the driver or
                passengers of the vehicle, is guilty of a misdemeanor.

Minn. Stat. § 169.13, subd. 2 (emphasis added).

       The district court found that Hoberg was reported as a “slumper” in a vehicle that

was “blocking” a roadway in Minneapolis. The arresting officers arrived at the scene and

observed a vehicle “stopped in the street blocking traffic.” Hoberg was in the driver’s

seat of the vehicle. He “appeared to be highly impaired” and was being evaluated by

Minneapolis Fire Department personnel. Hoberg denied having any medical issues. One

officer observed “a couple of bottles with a quantity of unknown pills” in the vehicle.

Another officer saw “a glass drug pipe in plain view on the floor of the vehicle in front of

the driver’s seat.” One of the arresting officers attempted to issue Hoberg a citation for

the pipe and to explain the citation, but Hoberg “was not responding coherently and

evidently not understanding what [the officer] was saying to him.” Two other officers

who responded to the scene confirmed that Hoberg was unable to comprehend the

arresting officer’s attempt to explain the citation.

       Based on the facts found by the district court—which are not challenged on

appeal—this court concludes that there was probable cause to arrest Hoberg for the

misdemeanor offense of careless driving. Based on the objective facts, a person of

ordinary care and prudence would entertain an honest and strong suspicion that Hoberg

halted his vehicle on a street, carelessly in disregard of the rights of others, or in a manner

that was likely to endanger people or property. Hoberg’s arguments to the contrary are

unpersuasive.


                                               6
       Hoberg argues that “[a] review of the facts leading up to [the arresting officer’s]

interaction with Hoberg reveals absolutely no driving conduct whatsoever.” He notes

that the vehicle was not running, the keys were “on the floor of the car, not in the

ignition,” and that the officer “did not witness Hoberg either operating or halting his car

carelessly.” In sum, Hoberg argues that “[n]othing about [his] position suggested he had

temporarily suspended the movement of his car, rather, his position suggested that he had

not moved the car at all.” But Hoberg also argues that, at most, there may have been

“probable cause to believe that [he] had, at some point illegally parked his car,” which is

only a petty misdemeanor offense. See Minn. Stat. § 169.34, subd. 2(a) (2012). Hoberg

does not explain how he could have “illegally parked his car” without operating or

halting the vehicle.

       Even though the officers did not observe Hoberg’s vehicle in motion, the

circumstantial evidence available to the officers warranted an honest and strong suspicion

that Hoberg had halted his vehicle in his “highly impaired” condition. Because that

condition rendered him unable to understand what the officers were saying to him or to

respond coherently, and because the vehicle was “stopped in the street blocking traffic,” a

person of ordinary care and prudence would entertain a strong suspicion that Hoberg

halted his vehicle in a manner prohibited by section 169.13, subdivision 2.1




1
  Although Hoberg does not raise it as an issue, we are satisfied that the vehicle was
halted in the presence of the arresting officers. See Minn. Stat. § 629.34, subd. 1(c)(1)
(2012) (stating that a peace officer may arrest a person without a warrant “when a public
offense has been committed or attempted in the officer’s presence”).

                                            7
       In sum, the officers had objective probable cause to arrest Hoberg for careless

driving. See Hawkins, 622 N.W.2d at 580 (stating that if the objective standard is met, a

court will not suppress evidence or invalidate an arrest even if the officer making the

arrest based his action on the wrong ground). Because there was probable cause to arrest

Hoberg for a misdemeanor offense, Hoberg’s remaining arguments for reversal—which

are based on the erroneous contention that there was no more than probable cause to

believe he committed a petty misdemeanor offense—are unavailing and we do not

address them.

       Exceptions to Rule 6.01

       Having taken the position that his arrest cannot be justified based on probable

cause to believe he committed the offense of careless driving or any other misdemeanor

offense, Hoberg does not discuss the district court’s determination that each of the

exceptions to rule 6.01 was satisfied. See Minn. R. Crim. P. 6.01, subd. 1(a)(1)-(3). We

nonetheless briefly review the district court’s application of rule 6.01. See Minn. R.

Crim. P. 28.02, subd. 11 (“On appeal from a judgment, the court may review any order or

ruling of the district court or any other matter, as the interests of justice require.”). The

construction and application of a rule of criminal procedure is a question of law, which

this court reviews de novo. State v. Hugger, 640 N.W.2d 619, 621 (Minn. 2002).

       The district court concluded that Hoberg’s arrest “was justified by the need to

prevent [him] from injuring himself or others.” See Minn. R. Crim. P. 6.01, subd.

1(a)(1). We agree. Hoberg was “slumped” in the driver’s seat of a vehicle blocking

traffic on a public roadway. He appeared to be incapable of safely driving. Yet, there


                                             8
was a risk that Hoberg would attempt to drive and injure himself or someone else in the

process. As stated by the district court, “the officers were justified in using their common

sense in removing [Hoberg] from the scene.”

       The district court next concluded that “[p]olice were also justifiably concerned

further criminal conduct would occur if they merely cited [Hoberg] and set him free.”

See id., subd. 1(a)(2). Once again, we agree. As noted by the district court, “[h]ad [the

police] cited and released [Hoberg], [he] could have walked off to procure more drugs or

possibly attempt to drive again.” Given Hoberg’s apparent incapacity, and the risk that

he would attempt to drive, it reasonably appeared that an arrest was necessary to prevent

further criminal conduct.

       Lastly, the district court determined that “[p]olice also had valid concerns [that

Hoberg] would not respond to a citation.” See id., subd. 1(a)(3). The record supports this

determination. An officer attempted to explain a citation to Hoberg, but he did not

respond coherently and did not appear to understand what the officer said. Two other

officers noted that Hoberg was “extremely altered” and could not comprehend attempts to

explain the citation. Under the circumstances, there was a substantial likelihood that

Hoberg would not respond to the citation.

       In sum, Hoberg’s arrest was lawful and the district court did not err by denying his

motion to suppress.

       Affirmed.




                                             9
