State of Minnesota v. Joseph Gene Hoberg ( 2014 )

This opinion will be unpublished and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UNPUBLISHED OPINION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.
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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).
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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,”
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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
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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.
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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
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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”).
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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
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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.
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