author: KALITOWSKI, Judge

text:
    STATE of Minnesota, Plaintiff, v. Mohamed Galony ALI, et al., Defendants, Abdi Mohamed Askar, Mohamud Muse Jama, Abshir Mohamed Ahmed, Defendants.
    No. C2-00-70.
    Court of Appeals of Minnesota.
    July 11, 2000.
    Review Denied Sept. 13, 2000.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN (for plaintiff).
    William E. McGee, Chief Hennepin County Public Defender, Renee Bergeron, Rene Clemenson, Assistant Public Defenders, Minneapolis, MN (for defendants Mohamed Galony Ali, Arie Musse Jama, and Ahmed Abdi Mursal).
    Stephen Grigsby, Minneapolis, MN (for defendant Abdi Mohamed Askar).
    Chris Goodman, Minneapolis, MN (for defendant Abshir Mohamed Ahmed).
    Ronald Bradley, Minneapolis, MN (for defendant Mohamud Muse Jama).

      Considered and decided by KLAPHAKE, Presiding Judge, KALITOWSKI, Judge, and PORITSKY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

KALITOWSKI, Judge

The district court certified a question to this court asking whether, to support a controlled substance charge for the possession of cathinone under Minn.Stat. § 152.02, subd. 2(6) (1998), the state must prove that the cathinone is present in a quantity “having a stimulant effect.”

FACTS

This case involves felony charges against six defendants: Abshir Mohamed Ahmed, Mohamed Galony Ali, Abdi Mohamed As-kar, Arie Musse Jama, Mohamud Muse Jama, and Ahmed Abdi Mursal. Each defendant was charged with one count of fifth-degree possession of khat, a plant containing the controlled substance cathi-none.

Khat is a plant native to East Africa that contains cathine and cathinone, both controlled substances under Minnesota law. Cathinone is the stimulant at issue in this case. Khat is consumed by chewing and produces a stimulant reaction including hyperalertness, hyperactivity, and elevated respiration and heart rate. The evidence in the record indicates that because the cathinone in khat deteriorates rapidly, by the time the khat reaches Minnesota from East Africa its potency has diminished.

The khat seized from the defendants was tested for the presence of cathinone. The samples all contained cathinone, but the testing neither quantified the amount of cathinone present nor determined whether the cathinone present was in the form of the negative or positive isomer. Evidence was presented that the negative isomer of cathinone is the more potent stimulant.

Two of the defendants demanded a Frye hearing to determine the admissibility of the state’s tests used to determine the presence of cathinone in the khat. All of the defendants made a motion to dismiss for lack of probable cause, arguing that in order to support a charge for possession of cathinone: (1) the state must prove that the khat contained an amount of cathinone sufficient to produce a stimulant effect; and (2) the state’s testing must distinguish between the positive and negative isomers of cathinone. The district court conducted a hearing and determined that the testing procedures were widely used and acceptable in the scientific and legal community. The district court denied the motion to dismiss based on its conclusions that the statute prohibits any quantity of cathinone regardless of whether it is in an amount sufficient to produce a stimulant effect and regardless of which isomer is present. The district court certified the question of whether the state must prove through testing that the amount of cathinone present has a stimulant effect.

ISSUE

Must the state prove that the amount of cathinone possessed by a defendant is in a quantity “having a stimulant effect” in order to support a charge for possession of cathinone, a controlled substance under Minn.Stat. § 152.02, subd. 2(6) (1998)?

ANALYSIS

The interpretation of a statute is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). When the application of statutory language to a situation is clear and free from all ambiguity, the plain meaning of the language controls. Minn: Stat. § 645.16 (1998). The object of interpretation and construction of laws is to ascertain and effectuate the legislature’s intention. Id. “Penal statutes are to be strictly construed with all reasonable doubts concerning legislative intent to be resolved in favor of the defendant.” State v. Wagner, 555 N.W.2d 752, 754 (Minn. App.1996). But the court is not required to give a statute the narrowest possible interpretation. Id.

A person commits a controlled substance crime in the fifth degree if

the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV, except a small amount of marijuana.

Minn.Stat. § 152.025, subd. 2(1) (1998). Cathinone is listed as a schedule I controlled substance:

Unless specifically excepted or unless listed in another schedule, any material compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
Cathinone;
Methcathinone.

Minn.Stat. § 152.02, subd. 2(6) (1998). The defendants argue that this statute requires the state to prove that the quantity of cathinone had a stimulant effect on the central nervous system in order to support a charge for possession of cathinone. Under this interpretation, the phrase “having a stimulant effect” modifies “quantity.” The state argues that the phrase “having a stimulant effect” modifies “substances” only and should not be treated as an element of the offense.

To support their interpretation, defendants raise several issues regarding the propriety and fairness of prosecuting persons for chewing khat leaves. But even if we assume that defendants’ arguments have merit, the certified question before us here is one of statutory interpretation: whether the state must prove under Minn. Stat. § 152.02, subd. 2(6), that the cathi-none at issue was present in a quantity “having a stimulant effect.” Therefore, we consider only this narrow issue on appeal.

The schedules of controlled substances classify a number of different substances using phrases like the one at issue here. See Minn.Stat. § 152.02, subds. 2(5) (1998) (“having depressant effect”), 3(3) (1998) (“having a stimulant effect”), 3(4) (1998) (“having a depressant effect”), 4(2) (Supp. 1999) (“having a potential for abuse associated with a depressant effect”), 4(3) (Supp. 1999) (“having a potential for abuse associated with a stimulant effect”). Minnesota’s statutes are similar to controlled substances laws in other jurisdictions because nearly every state, including Minnesota, has adopted a version of the Uniform Controlled Substances Act (UCSA). UCSA (1994), Table of Jurisdictions, 9 U.L.A. 1-2 (1997). The UCSA was drafted to complement the federal law and achieve uniformity in the laws of the several states. UCSA, Prefatory Note, 9 U.L.A. 5.

Although Minnesota courts have not interpreted any of the phrases in the schedules of controlled substances, most jurisdictions faced with a similar interpretation question have concluded that the government is not required to prove that the quantity of the drug in question had a stimulant or depressant effect. See United States v. Durham, 941 F.2d 886, 891 (9th Cir.1991); United States v. Picklesim er, 585 F.2d 1199, 1203 (3d Cir.1978); United States v. White, 560 F.2d 787, 790 (7th Cir.1977); United States v. Nickles, 509 F.2d 810, 811 (5th Cir.1975); State v. Light, 175 Ariz. 62, 852 P.2d 1246, 1248 (Ct.App.1993); People v. Moran, 983 P.2d 143, 147 (Colo.Ct.App.1999); State v. Collinsworth, 96 Idaho 910, 539 P.2d 263, 267-68 (1975); People v. Bolden, 62 Ill.App.3d 1009, 20 Ill.Dec. 79, 379 N.E.2d 912, 915 (1978); People v. Busby, 56 Mich.App. 389, 224 N.W.2d 322, 324-25 (1974); State v. Jennings, 195 Neb. 434, 238 N.W.2d 477, 480 (1976); State v. Hernandez, 104 N.M. 97, 717 P.2d 73, 77 (Ct.App.1986); State v. Allesi, 216 N.W.2d 805, 810 (N.D.1974); Doyle v. State, 511 P.2d 1133, 1136 (Okla.Crim.App.1973); State v. Henry, 116 Or. App. 138, 840 P.2d 1335, 1336 (1992); State v. Johnson, 254 N.W.2d 114, 117 (S.D. 1977); Sheffield v. State, 623 S.W.2d 403, 408 (Tex.Crim.App.1981).

Several of these jurisdictions have determined that phrases like the one at issue in Minn.Stat. § 152.02, subd. 2(6), were intended as legislative guidance for the classification and categorization of new controlled substances and were not an element required to be proven by the state. See, e.g., Picklesimer, 585 F.2d at 1203; Moran, 983 P.2d at 147; Collinsworth, 539 P.2d at 267; Sheffield, 623 S.W.2d at 408. Similarly, courts have determined that phrases like the one used in Minn. Stat. § 152.02, subd. 2(6), represent a legislative determination about the effects of a substance and that further proof is therefore not required. See, e.g., White, 560 F.2d at 789-90; Nickles, 509 F.2d at 811; Light, 852 P.2d at 1247. Additionally, several courts have found that the placement of the phrase near the word “substance” rather than the word “quantity” supports the construction urged by the state here. See Hernandez, 717 P.2d at 76 (adopting this view and citing other jurisdictions that have adopted similar rationale).

We find the reasoning in these cases to be persuasive. Minnesota’s statute is phrased similarly to those in other jurisdictions and this court must interpret uniform laws to effect the general purpose of making the laws of the states uniform. Minn.Stat. § 645.22 (1998). Thus we conclude that the phrase “having a stimulant effect” provides legislative guidance for classifying and categorizing additional substances. In addition, there are practical reasons supporting this interpretation. As with other substances, the effect of a given amount of cathinone depends on the amount of cathinone already consumed, other substances consumed by a person, the person’s sensitivity to cathinone, and the person’s size. Thus, the interpretation advocated by defendants would necessarily result in inconsistent and irregular prosecutions.

Notwithstanding the evidence presented by .defendants regarding the unique qualities of khat, nothing in the statute suggests that the legislature intended greater proof requirements for cathinone than for other controlled substances. Other subparts of the statute at issue use a descriptive term for the substances classified therein. See, ■ e.g., Minn.Stat. § 152.02, subds. 2(2) (1998) (referring to “opium derivatives”); 2(3) (1998) (referring to “hallucinogenic substances”); 3(2) (1998) (referring to “opiates”); 4(5) (Supp. 1999) (referring to “narcotic drugs”).

Only one jurisdiction has accepted defendants’ argument that the phrase “having a stimulant effect” adds an element that the state must prove. See Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682, 684 (1975) (holding that the phrase “having a potential for abuse associated with a depressant effect” modified “quantity”); see also Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312, 316 (1979) (applying Teada in interpreting phrase “having a potential for abuse associated with a stimulant effect”). In Teada, the court concluded that the legislature intended to impose greater proof requirements for the state in prosecutions of less dangerous substances and that this interpretation prevented the phrase from being mere surplusage. 344 A.2d at 684. But this reasoning has been uniformly rejected by courts in other jurisdictions. Moran, 983 P.2d at 147 (noting otherwise universal rejection of interpretation adopted in Tea-da). Thus, the principle of construing uniform laws similar to other jurisdictions supports our interpretation.

Defendants also argue that Minnesota courts have previously been inclined to limit controlled substance provisions where only a trace amount of a substance was found, citing State v. Morgan, 287 Minn. 406, 178 N.W.2d 697 (1970); State v. Resnick, 287 Minn. 168, 177 N.W.2d 418 (1970); and State v. Lewis, 394 N.W.2d 212 (Minn.App.1986), review denied (Minn. Dec. 12, 1986). But none of these cases is controlling here. The holdings in Resnick and Morgan, which required a usable quantity of marijuana for a conviction, were subsequently rejected by the Minnesota Supreme Court. State v. Siirila, 292 Minn. 1, 10, 193 N.W.2d 467, 473 (1971) (holding that Resnick and Morgan were “no longer tenable or controlling” insofar as they were based on a lack of possession of a usable quantity of marijuana). And the court in Lewis addressed the issue of whether presence of a controlled substance in a urine sample satisfied the meaning of the term “possession,” which did not depend on the amount of the substance present in the sample. 394 N.W.2d at 216-17.

We conclude that the district court properly denied defendants’ motions to dismiss because the statute prohibits the possession of cathinone regardless of whether the amount present is sufficient to produce a stimulant effect.

DECISION

We answer the certified question in the negative. The state is not required to prove that cathinone is present in a quantity “having a stimulant effect” in order to support a controlled substance charge for the possession or sale of cathinone, a controlled substance under Minn.Stat. § 152.02, subd. 2(6) (1998).

Certified question answered in the negative.


source: Caselaw Access Project

author: DANIEL F. FOLEY, Judge.

license: Public Domain

text:
    The OAKS GALLERY AND COUNTRY STORE-WINONA, INC., et al., Appellants, v. LEE ENTERPRISES, INC., d/b/a Winona Daily News, et al., Respondents.
    No. C8-00-8.
    Court of Appeals of Minnesota.
    July 11, 2000.
    Review Denied Sept. 13, 2000.

      Stewart C. Loper, Loper & Seymour, St. Paul, MN (for appellants).
    Mark R. Anfinson, Minneapolis, MN; and Clifford M. Greene, Kristen N. Anderson, Greene Espel, P.L.L.P., Minneapolis, MN (for respondents).
    Considered and decided by TOUSSAINT, Chief Judge, G. BARRY ANDERSON, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge.

On appeal from summary judgment, Oaks Gallery and Terry and Martha Sue Duggins challenge the district court’s determination that the newspaper and newspaper reporter did not defame them as a matter of law. They contend genuine issues of material fact exist as to whether an article incorrectly attributed the nonpayment of delinquent real estate taxes to them, causing harm to their business. We affirm.

FACTS

In spring of 1986, EMD Construction Company (EMD) purchased the property at issue, located at 425 Cottonwood Drive in Winona. EMD is a Kansas corporation, whose sole shareholder was appellant Terry Dugginss mother, Eva Murphy Dug-gins. Terry Duggin’s has served as president of EMD since approximately 1984. The warranty deed filed with the Winona County Auditor indicated that the property tax statement should be sent to EMD in care of Terry Duggins; throughout the years, he provided the auditor with various Twin Cities addresses for EMD.

Oaks Gallery, a gift and craft store, began leasing space from EMD shortly after EMD purchased the property. It displayed the work of many crafters, who paid Oaks Gallery a monthly fee and a 12 percent commission on sales of their crafts. The Martha Sue Duggins Partnership, a South Dakota limited partnership whose partners were Terry Duggins and his wife, Martha Sue Duggins, owned the Oaks Gallery corporation. Oaks Gallery did not own any shares of EMD or vice versa, and the terms of the lease provided that EMD was required to pay all property taxes.

EMD encountered financial problems after remodeling the building in 1986, when mechanics’ liens were filed on the property because the contractor allegedly failed to pay some subcontractors and suppliers. Terry Duggins explained that although he was president of EMD, his mother and her attorneys instructed him not to make tax payments after the mechanics liens’ were filed. The county began forfeiture proceedings and obtained a judgment for delinquent taxes in May 1987. In 1989, before the redemption period expired, EMD filed for bankruptcy protection, which stayed the forfeiture proceedings.

After his mother’s death, Terry Duggins and his sister each inherited a 50 percent share of EMD; by 1992, Terry Duggins had acquired his sister’s share and he owned 100 percent of EMD. At some point, another Kansas corporation, CPJ Enterprises (CPJ), acquired an ownership interest in the property through a contract for deed, but never acquired title. Martha Sue Duggins was initially the sole shareholder of CPJ, but Terry and Martha Sue Duggins’s limited partnership acquired the CPJ stock later.

Since its lease began, Oaks Gallery consistently paid the rent when due, which ranged from $2,000 to $8,700 per month. Oaks Gallery initially made the payments to EMD, but at some point began making payments to CPJ.

The bankruptcy trustee eventually abandoned the property. EMD resumed legal control, but still failed to pay property taxes. The county began forfeiture proceedings again, and the three-year redemption period expired in 1995. The county issued the certificate of forfeiture on August 9, 1995, and Oaks Gallery signed a new lease with the county effective August 1, 1995, for monthly rental payments of $2,450.

While preparing an article on tax-delinquent properties, a reporter from the Wi-nona Daily News spoke to the Winona County Auditor, who provided him with information about the delinquencies described in the article. He also interviewed appellants and their attorney, who told him that Oaks Gallery did not own the property or owe taxes. The reporter agreed that this was technically true, but felt the ownership relationship was more complicated. Terry Duggins asserts that although the reporter agreed not to include the names of the Dugginses or Oaks Gallery in the article, he nonetheless did so.

On October 20, 1995, the Winona Daily News published the article about real estate tax forfeitures titled “The tax collector cometh,” with the subtitle “Oaks Gallery is among 13 tax-delinquent parcels soon to go on the block” Appellants contend that the article defamed them by giving the false impression that .they, not EMD, failed to pay the property taxes.

On the day the article appeared Terry Duggins demanded that the editor publish a retraction. The editor published a clarification on October 21, 1995, and a formal retraction on November 9, 1995, making it clear that Oaks Gallery was not the. owner of the tax-delinquent property.

Terry Duggins asserts that the article had an immediate impact on the business of Oaks Gallery. On the day the article appeared a number of crafters called to cancel their display contracts. At the beginning of October 1995, the Oaks Gallery had contracts with 257 crafters; by January 1996, 88 had terminated their contracts. The business experienced a significant drop in customers during the end-of-the-year period that was typically the busiest.

On December 19, 1995, the county conducted a tax-forfeiture sale of the EMD property with a minimum bid of $150,000. Mary Sue Duggins bid $151,000 initially, but the county advised her that because she was an interested party, it would not sell the property to her for less than the total amount of taxes, penalties, and interest, which amounted to $191,000. Another purchaser bought the property. The Oaks Gallery closed after its lease ended, due to the financial impact of crafters terminating their contracts and the decline in the number of retail customers.

Appellants then sued respondents for defamation. The district court granted summary judgment for respondents. This appeal followed.

ISSUE

Is there a genuine issue of material fact as to whether the “gist or sting” of the statements in the article were true?

ANALYSIS

In considering an appeal from summary judgment, an appellate court will review the record to determine whether any genuine issues of material fact exist and whether the district .court erred as a matter of law. Offerdahl v. University of Minn. Hosps. Clinics, 426 N.W.2d 425, 427 (Minn.1988). The evidence will be considered in the light most favorable to the nonmoving party. Id.

A statement is defamatory if it is

communicated to someone other than the plaintiff, it [is] false, and it * * * tend[s] to harm the plaintiffs reputation and to lower him in the estimation of the community.

Stuempges v. Parke, Davis Co., 297 N.W.2d 252, 255 (Minn.1980). Generally, “the truth or falsity of a statement is inherently within the province of-the jury.” Lewis v. Equitable Life Assurance Socy., 389 N.W.2d 876, 889 (Minn.1986). If, however, the underlying.facts are not in dispute, the question of whether the statements are substantially accurate is one of law for the district court to determine. Jadwin v. Minneapolis Star Tribune Co., 390 N.W.2d 437, 441 (Minn.App.1986).

“[T]rue statements, however disparaging, are not actionable.” Stuempges, 297 N.W.2d at 255. The truth must go not only to the accuracy of the statement, but its underlying implications as well. Lewis, 389 N.W.2d at 889. “Inaccuracies of expression or details” are not significant if the statement is “true in substance.” Jadwin, 390 N.W.2d at 441.

A statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.

Id. (quotation omitted).

Appellants contend that a genuine issue of material fact existed as to whether the article was false because it attributed the nonpayment of taxes to Oaks Gallery and the Dugginses, even though EMD, not they, owed the taxes. While the parties argue as to whether the article is “substantially accurate,” we conclude that the more relevant inquiry is whether the “gist or sting” of the article was true. The learned trial court judge ruled that:

The precise truth in this case is that the Dugginses failed to pay real estate taxes as owners of EMD and CPJ and not as owners of Oaks Gallery.

The court noted that the article mentioned Terry and Martha Sue Duggins, but clearly indicated in several places that EMD Construction was the owner of the parcel. It concluded that “[gjiven the totality of the article and the undisputed facts regarding the corporate ownership, the plaintiffs’ case should not go forward.”

Appellants contend that to conclude the “gist or sting” was true disregards the reality of the corporate entities because only EMD was responsible for the property taxes. See Victoria Elevator Co. v. Meriden Grain Co., 283 N.W.2d 509, 512 (Minn.1979) (discussing factors to consider in disregarding corporate entity). But the proper question here is not whether to pierce the corporate veil for liability purposes, an issue not present in the case, but whether an “accurate” version of the article would have had the same gist or sting. Such a version would have showed that EMD owned the property and owed taxes, that Oaks Gallery was a lessee and did not owe taxes, that a partnership consisting of Terry and Martha Sue Duggins owned Oaks Gallery and that Terry Duggins was first president and then full owner of EMD, and that CPJ, which had some ownership interest in EMD, was also owned by the partnership of Terry and Martha Sue Duggins.

It is impossible to escape the fact of the common ownership. Thus, while Oaks Gallery did not owe the taxes, Terry and Martha Sue Duggins were the sole partners in the corporation that owned Oaks Gallery, as well as CPJ (which had an undetermined interest in EMD), and Terry Duggins was first president and, by 1992, the full owner of EMD. We agree with the district court that because the “gist or sting” of the article is true, respondents are entitled to summary judgment as a matter of law.

Appellants move to strike the portion of respondents’ appendix containing “matters not in the record below. An appellate court may not consider matters outside the record on appeal, and may not consider matters not produced and received in evidence below.” Thiele v. Stick, 425 N.W.2d 580, 582-83 (Minn.1988). We grant appellants’ motion.

DECISION

The decision of the district court granting summary judgment to respondents is affirmed.

Affirmed; motion granted.

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

      . In light of this decision, it is unnecessary to reach other issues concerning defamation.


author: HALBROOKS, Judge

text:
    Christopher PECINOVSKY and Lorraine Pecinovsky, individually and as parents and natural guardians of Sara Pecinovsky, a minor, Respondents, v. AMCO INSURANCE COMPANY, Appellant.
    No. C6-00-7.
    Court of Appeals of Minnesota.
    July 18, 2000.

      Raymond L. Hansen, O’Brien, Ehrick, Wolf, Deaner & Maus, L.L.P., Rochester, for respondents.
    George C. Hottinger, Paul D. Reuvers, Erstad & Riemer, P.A., Minneapolis, for appellant.
    Considered and decided by DAVIES, Presiding Judge, LANSING, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge

Respondents commenced this declaratory-judgment action seeking to stack personal-injury protection benefits available under their automobile-insurance policy. Respondents contend that stacking should occur by operation of law because appellant did not offer the stacking option as required by Minn.Stat. § 65B.47, subd. 7 (1998). A jury concluded that appellant failed to offer stacking to respondents, and the district court read stacking coverage into respondents’ policy and entered judgment against appellant. Appellant contends that it is entitled to judgment notwithstanding the verdict because it gave sufficient notice to respondents as a matter of law or, alternatively, that it is entitled to a new trial because the district court erroneously instructed the jury as to its obligations regarding the notification requirement. Because we find that the trial court erred in denying appellant’s motion for judgment notwithstanding the verdict, we reverse.

FACTS

Appellant AMCO Insurance Company (AMCO) provided automobile insurance to respondent Christopher Pecinovsky and his family. Pecinovsky insured two vehicles with AMCO. He first applied for and received coverage from AMCO in 1989. Pecinovsky’s initial application for insurance indicates that he declined the option of stacking the personal injury protection (PIP) benefits available under the policies. The bottom of the first page of the application reads:

“STACKING OF PERSONAL INJURY PROTECTION”

The “Stacking” of Personal Injury Protection (PIP) coverages is excluded. However, policyholders may elect to “stack” PIP benefits. “Stacking” is the adding together of the same coverages from two or more insured vehicles to arrive at an aggregate total coverage available. Unless a policyholder makes a specific election to have two or more auto limits added together, the limit of liability for Personal Injury Protection coverages may not be added together to determine the amount of insurance coverage available.

Adjacent to this disclosure of the option to stack PIP benefits is a box that contains a check-off for the insured to indicate whether or not they elect to stack the PIP benefits. On Pecinovsky’s application, the “no” box is checked, indicating that the option of stacking the PIP benefits is declined.

Pecinovsky denied having checked this box and denied that the stacking option was explained to him. The insurance agent who sold Pecinovsky the policy indicated that he did not recall specifically their meeting in 1989 when the application was completed, but that his normal practice is to discuss stacking with his clients. Additionally, over the course of the several years that the insurance policy remained in force, AMCO sent Pecinovsky various documents that disclosed the availability of stacking. Both parties agree that Pecinov-sky never affirmatively elected to stack his PIP benefits.

On May 22, 1998, an automobile struck Pecinovsky’s daughter after she exited a school bus. AMCO did not contest that Pecinovsky’s daughter was covered under the policy and paid $20,000 toward her medical expenses. Her medical bills, however, exceeded $20,000, and Pecinovsky sought additional coverage from AMCO. In September 1998, Pecinovsky brought a declaratory-judgment action against AMCO, alleging that he was entitled to stack the PIP coverage for his two vehicles as a matter of law because AMCO had failed to comply with Minn.Stat. § 65B.47, subd. 7 (1998). Pecinovsky contends that this statute requires insurers to “offer” the option of stacking PIP benefits and that AMCO failed to do so.

The matter proceeded to a jury trial and the jury returned a verdict in favor of Pecinovsky. It found that AMCO had failed to comply with the statute by not making an effective offer of the stacking option to Pecinovsky. AMCO moved the trial court for a judgment notwithstanding the verdict or, alternatively, a new trial. The trial court denied AMCO’s motions.

ISSUES

1. Did the trial court err in denying appellant’s motion for á judgment notwithstanding the verdict?

2. Did the trial court err in denying appellant’s motion for a new trial?

ANALYSIS

AMCO contends that the trial court erred by denying its motion for a judgment notwithstanding the verdict. This motion was based on its argument that, contrary to the trial court’s conclusion, Minn.Stat. § 65B.47, subd. 7 (1998), does not require an insurer to “offer” the option of stacking personal injury protection (PIP) benefits as the trial court concluded. Rather, AMCO contends that the language of the statute is clear and only requires the insurer to “notify” the insured of the option to stack PIP benefits.

“The denial of a motion for judgment notwithstanding the verdict * * * presents a legal question subject to de novo review.” Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn.1999). This case involves the interpretation of Minn. Stat. § 65B.47, subd. 7. Appellate courts review issues of statutory interpretation de novo. Meister v. Western Nat'l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn.1992).

Prior to 1985, courts interpreted the Minnesota no-fault act to require “stacking” of PIP benefits. Stacking is a term of art that refers to the practice of adding two or more policies together to increase the amount of coverage for a claim. The Minnesota Supreme Court first recognized the right to stack in Wasche v. Milbank Mut. Ins. Co., 268 N.W.2d 913 (Minn. 1978). But in 1985, the legislature amended the no-fault act by eliminating stacking unless insureds elect to stack and by requiring insurers to notify insureds of their right to elect to stack two or more policies. Minn.Stat. § 65B.47, subd. 7 (Supp.1985).

The language of Minn.Stat. § 65B.47, subd. 7, has remained unchanged since 1985. It reads:

Unless a policyholder makes a specific election to have two or more policies added together the limit of liability for basic economic loss benefits for two or more motor vehicles may not be added together to determine the limit of insurance coverage available to an injured person for any one accident. An insurer shall notify policyholders that they may elect to have two or more policies added together.

Id. (emphasis added).

The trial court determined that the phrase “shall notify” obligated insurers to offer the option of PIP stacking to its insureds. The trial court relied on what both parties agree is dictum in the supreme court’s Meister decision. In Meis-ter, the supreme court stated:

Minn.Stat. § 65B.47, subd. 7 contains a mandatory offer of additional insurance: The insurer must provide stacked coverage if the insured chooses to purchase it. Professor Steenson, in addressing the impact of the language of subdivision 7, agrees: “The statute does not specify the standards to which insurers will be held, but the standards previously applied by the supreme court to its mandatory offer cases would appear to be relevant to resolve the issue”. [Michael K. Steenson, 1 Minnesota No-Fault Automobile Insurance 148 (2d ed.1989) ].
The statutory duty to offer other than basic coverages predated the no-fault act. Although the failure to offer coverage is not at issue here, ⅜ * * the court would have implied the additional coverage under its “mandatory offer” cases.

479 N.W.2d at 379 (citations omitted).

We concur with the parties that the language quoted above is dictum. The issue of stacking PIP benefits was not before the court in Meister. Respondents nonetheless contend that because the dictum appears to be an expression of the opinion of the supreme court regarding the meaning of the phrase, it should be followed. But this court recently noted that a supreme court dictum is not controlling.

Dicta are expressions in a court’s opinion that go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases.

K.R. v. Sanford, 588 N.W.2d 545, 548 (Minn.App.1999), aff'd, 605 N.W.2d 387 (Minn.2000). We further note that, in expressing dicta, a court has not had the benefit of adversarial briefing and argument focusing on the issue.

Despite the implication from the supreme court that the phrase “shall notify” has the same meaning as the phrase “shall offer,” we find AMCO’s arguments that the two phrases are not equivalent to be persuasive. First, the mandatory-offer cases referred to by the supreme court in Meister involve a provision of the no-fault act that was repealed in 1980, and second, the legislature specifically chose the phrase “shall notify” in 1985 when it amended Minn.Stat. § 65B.47, subd. 7.

The provision of the no-fault act at issue in the mandatory offer cases stated that insurers “shall offer * ⅜ * optional coverages.” Minn.Stat. § 65B.49, subd. 6 (1978). The optional coverages that insurers were required to offer included, among others, uninsured and underinsured motorist coverages. The supreme court first addressed the failure to offer these optional coverages in Holman v. All Nation Ins. Co., 288 N.W.2d 244 (Minn.1980). In that case, the court held that if an insurer failed to make the statutorily mandated offer, those coverages would be read into the “policy by operation of law.” Id. at 250. The legislature immediately responded to the Holman decision by repealing Minn.Stat. § 65B.49, subd. 6. See 1980 Minn. Laws ch. 539, § 7. The legislature’s prompt response to the Holman decision is evidence that it did not intend for an insurer’s failure to offer the optional coverages to result in those coverages being read into policies by the courts.

When the legislature amended Minn.Stat. § 65B.47 in 1985 and added subdivision 7, it chose to use the phrase “shall notify” rather than “shall offer” that had been previously used in Minn.Stat. § 65B.49, subd. 6.

The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. * * *
When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.
When the words of a law are not explicit, the intention of the legislature may be ascertained by considering, among other matters:
⅜ ⅜ ⅜ ⅜
(5) The former law, if any, including other laws upon the same or similar subjects!.]

Minn.Stat. § 645.16 (1998). Courts presume that the legislature acts with full knowledge of previous statutes and existing caselaw. See Minneapolis E. Ry. Co. v. City of Minneapolis, 247 Minn. 413, 418, 77 N.W.2d 425, 428 (1956). Because of this, the legislature’s choice of the phrase “shall notify” is significant. Cf. Minn.Stat. § 645.17(4) (1998) (providing that “[w]hen a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language”). We assume that the legislature was aware of the manner in which the court had interpreted the phrase “shall offer,” and its decision to use a different phrase implies that it intended the new phrase to have a different meaning.

Additionally, the words “offer” and “notify” have different dictionary definitions. See Minn.Stat. § 645.08(1) (1998) (providing that “[wjords and phrases [in statutes] are construed according to rules of grammar and according to their common and approved usage”). Black’s Law Dictionary defines offer as “[t]he act or an instance of presenting something for acceptance” and

[a] promise to do or refrain from doing some specified thing * * * made in a way that would lead a reasonable person to understand that an acceptance ⅜ * * will result in a binding contract.

Black’s Law Dictionary 1111 (7th ed.1999). It defines the word notify as “[t]o inform (a person or a group) in writing or by any method that is understood” and “[t]o give notice of; to make known.” Id. at 1090. The American Heritage Dictionary contains definitions similar to those in Black’s and defines the two words differently. American Heritage Dictionary 1238, 1255 (3d ed.1996). • It also lists several synonyms for the word “offer,” and the word “notify” is not among them. Id.

We conclude that the legislature intended the phrase “shall notify” to have a meaning different from the “shall offer” language it had previously used. The word “notify” connotes a lesser duty on the insurer than does the word “offer.” The record is replete with evidence that Pecinovsky was notified of his option to elect to stack his PIP benefits, and we hold as a matter of law that AMCO met the burden imposed by Minn.Stat. § 65B.47, subd. 7.

Because we hold that the trial court erred in denying AMCO’s motion for judgment notwithstanding the verdict, we need not address the trial court’s denial of AMCO’s alternative motion for a new trial.

DECISION

Minn.Stat. § 65B.47, subd. 7 (1998), provides that a no-fault insurer “shall notify” its insureds of the right to elect to stack PIP benefits. This statute imposes a lesser duty upon the insurer than Minn.Stat. § 65B.49, subd. 6 (1978), which was repealed in 1980 and provided that insurers “shall offer” insureds various optional coverages. AMCO provided adequate notice to respondents and is entitled to judgment notwithstanding the verdict.

Reversed.

      . A series of cases followed the Holman decision and read coverage into policies when the insurer failed to offer the coverage to the insured. See, e.g., Hastings v. United Pac. Ins. Co., 318 N.W.2d 849, 851-53 (Minn. 1982); Kuchenmeister v. Illinois Fanners Ins. Co., 310 N.W.2d 86, 88-89 (Minn.1981); Pinney v. State Farm Fire & Cas. Co., 435 N.W.2d 105, 108 (Minn.App.1989), review denied (Minn. Apr. 24, 1989).


author: GILBERTSON, Justice AMUNDSON, Justice

text:
    2000 SD 78
    STATE of South Dakota, Plaintiff and Appellee, v. Julie Ann STEELE, Defendant and Appellant.
    No. 21061.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2000.
    Decided June 14, 2000.
    Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Becky A. Janssen of Pennington County Public Defender, Rapid City, for defendant and appellant.
   GILBERTSON, Justice

[¶ 1.] Julie Ann Steele appeals from a judgment of conviction of possession of a controlled substance in violation of SDCL 22-42-5. She claims the search of her purse, following the arrest of the driver of the vehicle in which she was a passenger, violated her Fourth Amendment right to protection against unreasonable search and seizure. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On November 26, 1998, Trooper John Boersma assisted Trooper Derek Mann with a vehicle stop south of Rapid City. Mann initially stopped the vehicle for speeding but during the course of the stop noticed the odor of alcohol emitting from within the vehicle. Driver, Scott Meyer, was on probation, a condition of which required that he submit to a breathalyzer test upon request. Meyer refused Mann’s request to take the test. He continued to be uncooperative and was arrested for the probation violation and placed in Mann’s patrol car. It was determined by breathalyzer test that Steele, Meyer’s passenger, was unable to safely drive Meyer’s vehicle.

[¶ 3.] Boersma had been requested to search the vehicle incident to Meyer’s arrest. He asked Steele to exit the front passenger seat so he could conduct the search. Steele attempted to remove her purse that was resting beside her on the front seat. Boersma requested she leave her purse in the vehicle until his search was completed, which she did. After searching the vehicle, Boersma asked Steele if he would find anything if he searched her purse. Steele replied, “Yeah, there might be something in one of the pockets.” Boersma searched the purse and found a purple cloth pouch containing two small plastic bags with residue, a folded paper bindle with residue, two plastic snorting straws, a large paper bindle with three foilers, and a small pocket knife. Boersma then advised Steele of her Miranda rights. She agreed to speak with him and admitted that all of the items were hers, that the powder residue was methamphetamine and that she used methamphetamine. Subsequent chemical analysis confirmed the residue was methamphetamine.

[¶ 4.] Steele was charged with possession of a controlled substance in violation of SDCL 22-42-5. She pled not guilty and filed a motion to suppress evidence resulting from the search of her purse. Following a hearing, and after considering the parties’ written briefs, the trial court denied Steele’s motion. Steele went to trial on stipulated evidence. Her objection to admission of the evidence from the search was again denied and she was found guilty. She appeals, claiming a violation of her Fourth Amendment right against unreasonable search and seizure.

ANALYSIS AND DECISION

[¶ 5.] As the general rule, warrant-less searches are unreasonable and therefore unconstitutional unless the search falls into one of the limited exceptions. State v. Meyer, 1998 SD 122, ¶¶ 21-27, 587 N.W.2d 719, 723-24. The United States Supreme Court analysis of Fourth Amendment protections permit the search of a purse that is inside a vehicle, where that search is incident to a lawful arrest of the driver of the vehicle.

[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the ar-restee, so also will containers in it be within his reach.

New York v. Belton, 453 U.S. 454, 460-61, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981); State v. Bonrud, 393 N.W.2d 785, 787 (S.D.1986); State v. Rice, 327 N.W.2d 128 (S.D.1982). We applied the rule of Belton in Rice, noting that our state constitution provides no greater protection against unreasonable searches and seizures than does the federal constitution where the search is incident to arrest. Rice, 327 N.W.2d at 131-32; accord State v. McCreary, 82 S.D. 111, 123, 142 N.W.2d 240, 247 (1966).

[¶ 6.] Belton held that the area of the arrestee’s immediate control always includes the passenger compartment of the vehicle and its containers. 453 U.S. at 460-61, 101 S.Ct. at 2864, 69 L.Ed.2d at 775. It defined “container” as “any object capable of holding another object,” including “closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like.” Id. at n4. This definition embraces Steele’s purse, lying on the front seat within 12-18 inches from Meyer at the time of his arrest.

[¶ 7.] The rationale for the Belton rule is “the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape,’ and the need to prevent the concealment or destruction of evidence.” Belton, 453 U.S. at 457, 101 S.Ct. at 2862, 69 L.Ed.2d 768 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969)). The rule provides law enforcement with a bright-line rule they can apply in the field. See Vasquez v. State, 990 P.2d 476, 484 (Wy.1999) (“The bright-line rules of Belton and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) eliminated much of the seemingly inconsistent rulings caused by fact-driven analysis and cleared confusion concerning automobile search law for law enforcement and the local judiciary.”); State v. Kelly, 963 S.W.2d 866, 869 (Tex. App. 1998) (purpose of the Belton rule was “to free officers in the field from making difficult legal decisions during the often-volatile circumstances of an arrest. [The rule] eliminates the officer’s need to determine what constitutes the area within the arrestee’s reach when the area includes the interior passenger compartment of a vehicle and the arrestee is its recent occupant.)”.

[¶ 8.] Steele argues she did not voluntarily leave her purse and did so only at Boersma’s request. She claims his ordering her to leave her purse resulted in an unconstitutional search and the evidence found therein was inadmissible. However, if Steele’s argument prevailed and passengers were permitted to remove containers from the vehicle prior to the search, the Belton rule would be nullified. Weapons and contraband, the objects of a lawful search, would be removed from the vehicle and the arrestee able to hide these items from police.

[¶ 9.] Moreover, the Belton exception applies to the set of circumstances existing at the time of Meyer’s arrest since the search of the vehicle is “a contemporaneous incident of that arrest.” 453 U.S. at 460,101 S.Ct. at 2864, 69 L.Ed.2d 768. “A search incident to arrest permits a war-rantless search of an individual and of the area within his immediate vicinity following his arrest, so long as the search is contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.” Rice, 327 N.W.2d at 130. In Rice, we held that the search of a glove compartment that followed a search of the interior of the vehicle “was a logical extension of the search since its contents were readily available to the occupants prior to their exiting from the vehicle.” Id. at 132. The search was upheld as a lawful search incident to an arrest under both the state and federal constitutions. Id.

[¶ 10.] At the time of the arrest, Steele’s purse was resting on the front seat within Meyer’s immediate reach “prior to [his] exiting from the vehicle.” Rice, supra. Adherence to Steele’s argument would permit her to alter these facts after his arrest. If no container existed within the vehicle at the time of Meyer’s arrest, Bel-ton would only permit a search of the vehicle’s interior. Since a container did exist within the vehicle at that point in time, Belton authorizes a search of that container. Steele may not, by attempting to remove her purse, change the facts present to law enforcement at the time justification for the search was triggered. Cf. Thomas v. State, 748 So.2d 988, 1999 WL 820572, *5 (Fla.1999) (occupants of a vehicle cannot avoid the consequences of Belton merely by stepping outside of the vehicle as the officers approach).

[¶ 11.] A similar issue, under slightly different facts, was addressed in State v. Newsom, 132 Idaho 698, 979 P.2d 100 (1998), cert. denied sub nom Idaho v. Newsom, 526 U.S. 1158, 119 S.Ct. 2048, 144 L.Ed.2d 215 (1999). In Newsom, officers initiated a registration check of a vehicle after observing it make several turn signal violations. They found outstanding felony warrants for the arrest of the vehicle’s registered owner. An identification check revealed the driver was not the vehicle’s owner, but he also had outstanding felony warrants and was arrested. Passenger, Lori Kay Newsom, was sitting in the front seat of the vehicle with her purse on her lap. Officers advised her to exit the vehicle so they could conduct a search and, according to Newsom, instructed her to leave her purse in the vehicle. The vehicle and the purse were searched. Officers found methamphetamine in the purse and arrested Newsom.

[¶ 12.] Newsom’s motion to suppress this evidence was denied by the trial court based on the rule in Belton. Newsom pled guilty, reserving the right to appeal the denial of the suppression motion. The Idaho Court of Appeals affirmed; Newsom appealed to the Idaho Supreme Court which vacated and remanded for further proceedings.

[¶ 13.] The Idaho high court correctly stated that Belton does not authorize the search of a passenger of the vehicle based solely on the arrest of another occupant of the vehicle, rather the authorized search is of the vehicle and its contents. “ ‘The lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.’ Newsom, 979 P.2d at 102 (quoting Belton, 453 U.S. at 461, 101 S.Ct. at 2864, 69 L.Ed.2d at 775) (emphasis added). However, the court noted Newsom’s purse was on her lap and treated the purse not as a searchable container but as part of Newsom’s person, holding it was not subject to search incident to the arrest of another occupant of the vehicle. It stated that “[i]n these circumstances, the passenger’s purse was entitled to as much privacy and freedom from search and seizure as the passenger herself.” Id.

[¶ 14.] Although the Idaho high court relied only on Belton in support of its holding, it did not discuss the possibility that the arrestee could hide a weapon or contraband, the harm sought to be contained by Belton, in another’s purse even where that purse is on a passenger’s lap. See Wyoming v. Houghton, 526 U.S. 295, 305, 119 S.Ct. 1297, 1308, 143 L.Ed.2d 408 (1999) (“A criminal might be able to hide contraband in a passenger’s belongings as readily as in other containers in the car - perhaps even surreptitiously, without the passenger’s knowledge or permission.” (internal citation omitted)). We do not find the Newsom holding to be sound reasoning considering the rationale of Belton. It also blurs the bright line Belton sought to provide law enforcement working in the field.

[¶ 15.] In State v. Treutelaar, 96-3249-CR, 1997 WL 213040 (Wis.Ct.App,May 1, 1997), the Wisconsin Court of Appeals addressed the issue of passenger ownership of a searched container. Bonny Treutel-aar was a passenger in a vehicle that was stopped during a routine traffic stop and the driver subsequently arrested under an outstanding warrant. Treutelaar was asked by a police officer to exit the vehicle so they could conduct a search incident to the driver’s arrest. She asked to be given an 8 x 10 manila envelope lying on the passenger floorboard, explaining it contained some papers and money she wanted to take with her. She was advised to leave the envelope in the vehicle until it could be searched for weapons and contraband. The envelope was searched and found to contain lipstick, mascara, and three wire mesh screens, one smudged with cocaine residue. Treutelaar was arrested and charged with possession of drug paraphernalia.

[¶ 16.] Her motion to suppress admission of this evidence was denied and she was convicted at trial. On appeal, judgment was affirmed. The court applied Belton, noting the envelope was large enough to conceal a weapon or evidence and was within the arrestee’s reach.

The ownership of the envelope was irrelevant to the safety of the officers, or the reasonableness of the search.... [I]f we adopted the defendant’s theory, a driver could simply hand over all weapons and contraband to his passenger, or the passenger could claim ownership of any containers in the vehicle, and avoid detection.

Id. at *4. The court held that the belongings of a passenger may be validly searched after the driver is arrested so long as those belongings are large enough to conceal weapons or contraband and are located in the vehicle when the search is made. Id.

[¶ 17.] This was also the position of the United States Supreme Court in Houghton, supra, regarding ownership of the container to be searched. There, the search of a passenger’s purse was made after a vehicle was stopped for speeding. The basis for the search, rather than incident to an arrest, was probable cause to believe the vehicle contained contraband after the driver was observed to have a hypodermic syringe in his shirt pocket and candidly admitted he used it to take drugs. The passenger had not attempted to take her purse when she exited the vehicle but later claimed a Fourth Amendment violation on the basis that her purse was her personal effect and therefore outside the scope of the search. The Court stated that

the permissible scope of a warrantless car search ‘is defined by the object of the search and the places in which there is probable cause to believe that it may be found.’ ... A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are ‘in’ the car, and the officer has probable cause to search for contraband in the car.

Houghton, 526 U.S. at 302, 119 S.Ct. at 1301, 143 L.Ed.2d 408 (emphasis original) (quoting Ross, 456 U.S. at 824, 102 S.Ct. at 2173, 72 L.Ed.2d 572). Likewise, Steele’s purse was “ ‘in’ the car” when she attempted to remove it from the search.

[¶ 18.] In such a search, the Supreme Court has identified the dual governmental goals to be officer safety and prevention of the loss of evidence. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040, 23 L.Ed.2d 685. These goals are thwarted if a passenger is permitted to sweep the vehicle of containers large enough to conceal weapons or evidence just prior to the search. The Supreme Court has not created an exception, based on legitimate governmental concerns, to the general rule against war-rantless searches only to have it negated by passenger discretion.

[¶ 19.] We find the search of Steele’s purse was neither unlawful nor improper. By requesting that she leave the purse in the vehicle, Boersma merely assured that a container that he had the legal right to search under Belton was not removed from the confines of the authorized area. His actions comport with both federal and state constitutional protections.

[¶ 20.] We affirm.

[¶ 21.] MILLER, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 22.] SABERS, and AMUNDSON, Justices, dissent.

AMUNDSON, Justice

(dissenting).

[¶ 23.] I respectfully dissent.

[¶ 24.] I disagree with the majority’s reliance on New York v. Belton as controlling in this case. In Belton, the passenger was subject to a “lawful custodial arrest” and therefore, subject to a search incident to that arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). That is not the situation before this Court. In the present case, Steele was not arrested, she was merely a passenger in a vehicle where the driver was stopped for speeding and later arrested. The search of Steele’s purse was not incident to a lawful custodial arrest. There is no similarity between the facts before us and Belton; therefore, any reb-anee on Belton is misplaced.

[¶ 25.] In State v. Newsom, 132 Idaho 698, 979 P.2d 100 (1998), the Idaho Supreme Court was faced with facts analogous to those presently before this Court. After officers had stopped a vehicle and arrested the driver, the passenger (New-som) was asked to exit the vehicle. Upon leaving the vehicle, Newsom attempted to remove her purse. The officer ordered her to leave her purse in the vehicle. While searching the vehicle, the officers searched Newsom’s purse and found two glass vials and several tinfoil bindles of methamphetamines. Newsom moved to suppress the evidence, but it was ultimately denied based upon being “ ‘a search incident to a valid arrest under the Belton case.’ ” Id. at 101.

[¶ 26.] On appeal, the Idaho Supreme Court identified the rule announced in Bel-ton as,

[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the ar-restee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed....

Id. (citing Belton, 453 U.S. at 460-61, 101 S.Ct. at 2864, 69 L.Ed.2d at 775 (citations omitted)). In reversing the denial of New-som’s motion to suppress, the court held:

Belton does not authorize the search of another occupant of the automobile merely because the other occupant was there when the arrest occurred. As the Supreme Court carefully pointed out in Belton, “the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” [citation omitted.] Therefore, in the present case Belton does not authorize a search of the passenger based solely on the arrest of the driver.
In these circumstances, the passenger’s purse was entitled to as much privacy and freedom from search and seizure as the passenger herself.

[¶ 27.] In State v. Nelson, 89 Wash.App. 179, 948 P.2d 1314 (1997), the passenger in a vehicle driven by Nelson was arrested based upon an outstanding warrant. Nelson was asked to get out of the truck and leave her purse, which had been between her legs at the time. During the officer’s search of the vehicle, they searched Nelson’s purse and found methamphetamine and drug paraphernalia. Nelson moved to suppress the evidence seized from her purse and the motion was granted. On appeal by the State, the court noted,

[t]he valid arrest of a driver justifies a search of the car’s passenger compartment, not including locked containers. The valid arrest of a passenger justifies a search of the car’s passenger compartment, not including locked containers. The valid arrest of either the driver or passenger justifies the search of a purse found in the car, and without so holding, we assume this is true regardless of whether the purse belongs to the driver or the passenger.

Id. at 1316. The court stated that a distinction exists between a purse left in the car by the defendant when leaving the car and a purse kept by the defendant upon exiting, but ordered to leave the purse in the car pursuant to an officer’s instructions. Id. The court further opined,

The distinction is based upon the amount of control the non-arrested person maintains over his or her personal property. When the person maintains control over the personal property and there are no furtive movements indicating he or she is trying to hide something, the police are not allowed to search the property.
In order to do a pat-down search of a person, the police must be able to point to specific and articulable facts creating an objectively reasonable belief that a suspect is armed and presently dangerous. [citation omitted.] Thus, if the police do not believe a person presents a danger, they cannot search the person and their clothing. This would include a purse they are carrying.

Id.

[¶ 28.] In a recent United States Supreme Court decision, Bond v. United States, — U.S. -, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), the Supreme Court was faced with a Border Patrol Officer’s squeezing manipulation of Bond’s soft luggage which was located above his seat in the bus head storage space. The Supreme Court noted that “[t]he Fourth Amendment provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ..” — U.S. at-, 120 S.Ct. at 1464, 146 L.Ed.2d at 369. The Court further opined:

Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that “he [sought] to preserve [something] as private.... ” Second, we inquire whether the individual’s expectation of privacy is “one that society is prepared to recognize as reasonable.”

- U.S. at -, 120 S.Ct. at 1465, 146 L.Ed.2d at 370.

[¶ 29.] In the present case, there is no doubt that Steele attempted to preserve privacy by leaving the vehicle with her purse. Further, it is a reasonable expectation of Steele that her purse will not be subject to search by other individuals. The majority attempts to circumvent Steele’s Fourth Amendment rights by ignoring the Newsom opinion on the grounds that it “blurs the bright line Belton sought to provide law enforcement in the field” and because Newsom “did not discuss the possibility that the arrestee could hide a weapon or contraband, the harm sought to be contained in Belton, in another’s purse even where the purse is on a passenger’s lap.” Why do we continually utilize this phantom safety crutch to validate improper searches? As stated in Nelson, to justify a pat-down search of Steele and her purse, the police officers “must be able to point to specific and articulable facts creating an objectively reasonable belief that a suspect is armed and presently dangerous.” See Nelson, 948 P.2d at 1316. Where a person maintains control over their personal property, such as Steele did when she attempted to leave the vehicle with her purse, when there are no furtive movements indicating she is trying to hide something, a police officer is not allowed to search her person and property. A review of this record fails to show any evidence that the officers feared for their safety. To disallow the suppression of this evidence against Steele would be to blur the constitutional rights of passengers in automobiles and subject them and their property to searches and seizures solely on the basis that they were in the wrong place at the wrong time. I find this search violated the Fourth Amendment and I would reverse.

[¶ 30.] SABERS, Justice, joins this dissent.

      . In Belton, a passenger’s jacket found in the backseat of an automobile was searched after the passenger, the driver, and the car’s other occupants were placed under arrest. The Court specifically extended the scope of a lawful search incident to an arrest to articles within the passenger compartment of a vehicle, even where the arrestee has been moved away from the vehicle and is no longer within reach of such items. 453 U.S. at 457-62, 101 S.Ct. at 2862-65, 69 L.Ed.2d at 775.

      . The Supreme Court declined to extend the parameters of Belton’s application where no arrest was made and therefore, the same concerns for officer safety and prevention of loss or concealment of evidence did not exist. See Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). In Knowles, the defendant was only issued a traffic citation and was not placed under arrest. The Court held that the full search of defendant’s automobile pursuant to issuance of a citation for speeding violated the Fourth Amendment.

      . In a very recent case, the Idaho Supreme Court avoided application of Belton and New-som altogether and held the search of a passenger’s purse following the arrest of her husband for driving with a suspended license was lawful as part of an investigatory stop and frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). State v. Wright, 996 P.2d 292 (Idaho 2000). The passenger exited the vehicle clutching her purse and was nervous and uncooperative when officers asked to look in the purse. When she announced she had weapons therein and started to reach into her purse, she was handcuffed for the officers' safety and the purse taken from her. Officers found a handgun, several pocket knives, methamphetamine, marijuana, a large amount of cash, and a ledger in the purse. The high court held Belton inapplicable (presumably because of its holding in Newsom) but that Newsom did not preclude the search under the Terry stop and frisk rationale which involves preventing a crime law enforcement suspects is about to happen. Id. at 297.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Larry Eugene WISEMAN, Appellant.
    No. 98-1440.
    Supreme Court of Iowa.
    July 6, 2000.
    Thomas M. Walter and Kenneth A. Duker of Johnson, Hester, Walter & Breckenridge, L.L.P., Ottumwa, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Barbara A. Edmondson, County Attorney, for appellee.
   LARSON, Justice.

In 1997 Larry Eugene Wiseman was arrested for operating a motor vehicle while intoxicated (OWI) in violation of Iowa Code section 321J.2 (1997). He was convicted by a jury. Based on a 1991 OWI conviction, the court found him guilty of a second offense and enhanced his sentence accordingly. Wiseman appealed, and the court of appeals affirmed. In doing so, it rejected Wiseman’s argument that the district court had misinterpreted Iowa Code section 321J.2(3) (court, for enhancement purposes, may not consider convictions, deferred judgments, or pleas of guilty occurring more than six years before current violation). We affirm the decision of the court of appeals and the judgment of the district court.

A jury found Wiseman guilty of OWI in connection with his 1997 offense. He stipulated that he pled guilty to OWI in 1991 but argued the earlier offense could not enhance the penalty for his present offense because of Iowa Code section 321J.2(3), which provides in part:

No conviction for, deferred judgment for, or plea of guilty to, a violation of this section which occurred more than six years prior to the date of the violation charged shall be considered in determining that the violation charged is a second, third, or subsequent offense.

Wiseman’s plea of guilty was over six years before his present offense, but his conviction on that plea was within the six-year window of section 321J.2(3). The district court held the date of the conviction, not the date of the guilty plea, controlled.

Wiseman argues this was error because his guilty plea was entered more than six years before the last violation. He contends the district court’s interpretation makes the statutory language “plea of guilty” superfluous and of no effect. We will not interpret statutes in a way that makes portions of them irrelevant or redundant. State v. Ahitow, 544 N.W.2d 270, 273 (Iowa 1996); see also Iowa Code § 4.4(2) (presumption that entire statute is intended to be effective).

We agree with the district court and the court of appeals that the operative terms of section 321J.2(3) are convictions and deferred judgments — not pleas of guilty. In fact, we believe a plea of guilty standing alone is irrelevant on the issue of enhancement until a conviction or deferred judgment is entered. This interpretation does not render the date of the guilty plea meaningless, as Wiseman argues, because the legislature itself has accorded it no legal significance. This is demonstrated by a further reading of section 321J.2(3). Following the language relied on by Wise-man and quoted above, that section provides:

For the purpose of determining if a violation charged is a second, third, or subsequent offense, deferred judgments pursuant to section 907.3 for violations of this section and convictions or the equivalent of deferred judgments for violations in any other states under statutes substantially corresponding to this section shall be counted as previous offenses. The courts shall judicially notice the statutes of other states which define offenses substantially equivalent to the one defined in this section and can therefore be considered corresponding statutes. Each previous violation on which conviction or deferral of judgment was entered prior to the date of the violation charged shall be considered and counted as a separate previous offense.

Iowa Code § 321J.2(3) (emphasis added). Under this section, former guilty pleas are not considered on the issue of enhancement.

This interpretation is consistent with our prior cases, such as State v. Barlow, 242 Iowa 714, 46 N.W.2d 725 (1951). In Barlow the issue was whether there was evidence to support a jury’s finding of a previous conviction. A municipal court clerk testified as to docket entries indicating the entry of a guilty plea and that an order imposing a fine and jail time could be found in the clerk’s records. However, the prior conviction was not actually proved. Barlow, 242 Iowa at 718-19, 46 N.W.2d at 727-28. We said:

The prior offenses which section 321.281, Code, 1950 provides shall increase the penalty means offenses that have been legally ascertained and determined— synonymous with convictions or judgments obtained in prior actions against the defendant for violation of the said statute.

Id. at 719, 46 N.W.2d at 728 (citations omitted).

In State v. Ridout, 346 N.W.2d 837 (Iowa 1984), we considered whether a deferred judgment permitted enhanced punishment for OWI. Ridout, 346 N.W.2d at 839. The State argued in that case that the law “equates a conviction with a guilty plea,” an argument we rejected. In doing so, we relied on Barlow's, holding that prior offenses for enhancement purposes were “synonymous with convictions or judgments.” Id. (quoting Barlow, 242 Iowa at 719, 46 N.W.2d at 728).

None of our cases or statutes, including section 321J.2(S), provide that a plea of guilty, standing alone, is an “offense” for enhancement purposes. In this case, Wiseman’s conviction was within the six-year window of that section, and the court properly enhanced his sentence accordingly.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except NEUMAN, J., who takes no part.

      . Iowa Code § 3211.2(3) no longer provides a window of six years for determining if a defendant has previous offenses; rather, §§ 321J.2(4) and 321.12(4) (1999) combine to allow the court to consider any conviction within the previous 12 years. See 1997 Iowa Acts ch. 177, § 4 (codified at Iowa Code § 3211.2(4) (Supp.1997)). However, the applicable provision for purposes of this appeal is Iowa Code § 321X2(3) (1997).