author: R.A. RANDALL, Judge.

text:
    STATE of Minnesota, Appellant, v. Marvin Russell LARSEN, Respondent.
    No. C5-01-980.
    Court of Appeals of Minnesota.
    Dec. 26, 2001.

      Mike Hatch, Attorney General, St. Paul, and G. Paul Beaumaster, Rice County Attorney, Nathaniel J. Reitz, Assistant County Attorney, Faribault, for appellant.
    Samuel A. McCloud, Carson J. Heefner, McCloud & Boedigheimer, P.A., Circle K, Shakopee, for respondent.
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and HARTEN, Judge.
   OPINION

R.A. RANDALL, Judge.

The state challenges a pretrial order that dismissed charges of petty misdemeanor possession of marijuana and fishing with an extra line. The evidence to support those charges was obtained by a Minnesota conservation officer who entered and searched respondent’s ice-fishing house with no articulable suspicion, no probable cause, no search warrant, no- issue of hot pursuit, and the search and seizure did not come under any other exception. We conclude that an individual using an ice-fishing house for personal recreational purposes has a reasonable expectation of privacy. We find no law granting extrajudicial powers to conservation officers that makes them exempt from constitutional guarantees of fairness and due process. We affirm.

FACTS

An officer of the Minnesota Department of Natural Resources (DNR) entered the ice-fishing house occupied by respondent Marvin Larsen to see if respondent was properly licensed. As in the other ice-fishing house cases that our courts have examined, the method of entry used here was the common method employed by conservation officers when entering ice-fishing houses or dark houses. That method is for the officer to put one hand on the door handle, knock on the door, and say, “Department of Natural Resources Conservation Officer,” or words to that effect, and simultaneously pull open the door and enter the fish house. The layman’s term “barging in” is accurate. The entry is simultaneous with the announcement of identification, and consent is not asked for, specifically because the state and the conservation officer take the position that consent is irrelevant.

After the officer observed what appeared to be an unlit marijuana cigarette, he conducted a pat-down search of respondent and located a small amount of marijuana. The officer also noticed that respondent had three lines in the water when only two are permitted.

Respondent was charged with possession of a small amount of marijuana and with using too many fishing lines. He moved to have the charges dismissed on the ground that the officer’s entry violated respondent’s Fourth Amendment rights because he had a reasonable expectation of privacy in his fish house. The district court granted respondent’s motion to suppress the evidence and dismissed the charge. The state now appeals.

ISSUE

Did the warrantless search of respondent’s fish house violate his reasonable expectation of privacy?

ANALYSIS

Respondent’s fish house was searched without a warrant pursuant to Minn.Stat. § 97A.215, subd. 3(1)(2000), which provides that a conservation officer may inspect the premises of an activity requiring a license under the game and fish laws, and to Minn.Stat. § 97C.355, subd. 2 (2000), which requires that ice-fishing houses be licensed. The district court held that this search violated respondent’s reasonable expectation of privacy and suppressed the evidence obtained during the search. Both parties agree that the suppression of the evidence had a critical impact on the state’s ability to proceed with the case against respondent; thus, the issue is ripe for appeal. See State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (stating that when state appeals from pretrial suppression order, it must show that suppressed evidence had critical impact on state’s ability to prosecute successfully).

This court recently reviewed the identical issue, i.e., whether evidence obtained in a warrantless search of an ice-fishing house (where the state claimed no exception to the warrant requirement applied) must be suppressed, and concluded that it must. State v. Krenz, 634 N.W.2d 231 (Minn.App.2001). In Krenz, a DNR officer entered a fish house without a warrant, observed a small pipe that appeared to be a device for smoking controlled substances, and retrieved several containers of cocaine from a hole in the ice where they had been thrown. Krenz admitted that he smoked cocaine with the pipe, that the pipe belonged to him, and that it contained cocaine; he was charged with one count of controlled substance-crime in the fifth degree. Krenz moved to suppress the evidence and his own statements on the grounds that the search and seizure were unlawful. Krenz’s motion was granted and the state appealed.

This court accepted the district court’s reasoning that

because the solid walls of a fish house provide visual privacy for a range of legitimate activities that can take place in a fish house, an expectation of privacy in a fish house is reasonable.

Id. at 234. We then affirmed the district court’s conclusion

that because Krenz had a legitimate expectation of privacy in his fish house, [the DNR officer’s] entry into the fish house without consent, a warrant, probable cause, or an articulable basis for suspicion violated the Fourth Amendment of the United States Constitution.

Id.

Krenz goes on to quote Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998), for a definition of a reasonable expectation of privacy:

[an expectation] that has a source outside of the fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

Krenz, 634 N.W.2d at 234 (quotations omitted).

Although the state concedes that Krenz is very close to the case before us, the state attempts to raise new arguments, and old arguments from Krenz clothed in a different hue. The case is of statewide importance. Annually, the state of Minnesota sells more than one million licenses and permits for recreational activities, including, but not limited to, fishing licenses, fish-house permits, hunting licenses, permits to gather wild rice, and other related activities. Thus, we will review each of the state’s arguments.

I. Right of privacy

The state argues that occupants of fish houses, unlike other building structures, have no expectation of privacy and, thus, the normal constitutional constraints on law enforcement investigation, detention, and search and seizure do not come under the Fourth Amendment to the U.S. Constitution and to the Minnesota Constitution, Article I, Section 10.

We disagree firmly with the state. The courts’ and legislature’s definition of the term “dwelling” covers fish houses. See, e.g., Minn.Stat. § 609.581, subd. 3 (2000) (defining “dwelling” in the context of burglary). “Dwelling” means a building used as a permanent or temporary residence. Id.

For decades, case law has included within this definition much more than single-family homes. See, e.g., State v. Walker, 319 N.W.2d 414, 417 (Minn.1982) (determining that structure attached to dairy barn that provided shelter for calves and would shelter people from the elements was a building); State v. Vredenberg, 264 N.W.2d 406, 407 (Minn.1978) (holding that houseboat cabins were suitable for human shelter and therefore were buildings); State v. Bronson, 259 N.W.2d 465, 465-66 (Minn.1977) (concluding that basketball arena being converted to ice arena was a building, even though one wall had been removed when burglary was committed); State v. Gerou, 283 Minn. 298, 302, 168 N.W.2d 15, 17 (Minn.1969) (concluding steel warehouse used as shelter by those who worked in it was a building); State v. Edwards, 589 N.W.2d 807, 811 (Minn.App.1999) (finding apartment of recently deceased tenant who had been murdered in apartment was “dwelling”), review denied (Minn. May 18, 1999); State v. Hofmann, 549 N.W.2d 372, 375 (Minn.App.1996) (holding motor home was building within meaning of burglary statute because it was suitable for affording shelter to human beings), review denied (Minn. Aug. 6, 1996); State v. Hendrickson, 528 N.W.2d 263, 265-66 (Minn.App.1995) (concluding definition of “dwelling” in burglary statute includes appurtenant structures), review denied (Minn. Apr. 27, 1995); In re Welfare of R.O.H., 444 N.W.2d 294, 294-95 (Minn.App.1989) (concluding mini-storage unit without heat, electricity, or plumbing could nevertheless afford shelter for human beings and thus was a building within meaning of burglary statute). The courts recognize and accept that, for purposes of burglary, both “building” and “dwelling” are broadly defined. The law confers an expectation of privacy on a wide range of structures.

Here, a word needs to be said about just what is a “fish house,” meaning an ice-fishing house or a fish house. Just like the word “home,” no single word describes the simplicity or the complexity, the amount of space or the lack of space, or the presence of amenities or the lack of amenities that may exist in a fish house. While some fish houses are basically canvas and/or thin wood enclosed shed-type structures, it is not uncommon for fish houses to have a rudimentary and, at times, even a sophisticated-type interior heating system. While ice fishing can take place during the day, it can also commonly take place during hours extending well after midnight and into the next day. It is not uncommon for a fish house, even a simple one, to contain a cot for resting and sleeping. Fish houses often contain chairs, portable radios, and portable televisions. Many fish houses are built larger and for more than the basic one or two holes in the ice. Some have the equivalent of beds, televisions, refrigerators, and some elementary method of heating food. The occupant of a fish house has an expectation of privacy exceeding that of someone sitting in a car or an open fishing boat.

The district court’s memorandum of law in Krenz is instructive.

The range of legitimate activities that can take place in a fishhouse which people could expect to be private is greater than the range of activities that can reasonably be done privately in a car. Lakes are usually less crowded than highways, and the solid walls of a fish-house offer more visual privacy than the windows of a car. Society should also accept that expectation of privacy as reasonable. The risks of harm to the citizens of this state from a fishhouse are far less than the risks involved with a boat or car.

State v. Krenz, No. K7-00-1214, slip op. at 8 (Minn.Dist.Ct. Mar. 16, 2001); see also In re Welfare of R.O.H., 444 N.W.2d at 294-95 (concluding a mini-storage unit without heat, electricity, or plumbing could nevertheless afford shelter for human beings and thus was a building within meaning of burglary statute). Thus, if the seminal test for a dwelling in the context of the serious crime of burglary is that the structure needs only to be able to “afford shelter for human beings,” then certainly fish houses, whether simple or elaborate, provide shelter for human beings. As a matter of fact, the state concedes that fish houses provide shelter for human beings, but it then dismisses the argument by calling fish houses “just shelters from the wind.” We conclude that an enclosed shelter from the wind, the cold, and the eye of the public, where one can fish, sleep, eat, watch television, and cook (depending on how much work the occupant puts into the shelter) fits the definition of “able to provider shelter for human beings.”

The state cannot have it both ways. The state cannot logically charge a citizen with the serious crime of burglary when the structure is not even close to the definition of a home and then claim that a person who is in a structure that cannot be classified as a permanent residence, has no expectation of privacy, not even a limited amount, and, thus, is “outside constitutional guarantees.”

Krenz framed the issue of warrantless inspections of ice-fishing houses.

The question is not, at this stage at least, whether these inspections may be made, but whether they may be made without a warrant. For example, to say that gambling raids may not be made at the discretion of the police without a warrant is not necessarily to say that gambling raids may never be made. In assessing whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant * * *.

Id. at 237 (quoting Camara v. Mun. Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967) (citation omitted)). There is no basis for distinguishing Krenz on this issue. The Krenz court did use a term of art, warrant, in its holding, but that does not limit the scope of Krenz. In Krenz, as here, the state agreed that none of the other exceptions to a warrantless search (e.g., detention based on articulable suspicion of criminal activity followed by evidence in plain sight, probable cause that a crime was committed, exigent circumstances, hot pursuit of a fleeing criminal) is being claimed by the state.

The state’s position is that entry into a fish house by a Minnesota conservation officer needs no justification, but is “built into the law.” At oral argument, the state readily conceded that other law enforcement personnel cannot do (to enter a fish house) what they claim conservation officers may do.

Although no case is directly on point as to the facts, we note that the United States Supreme Court has never deviated from a core holding that at least “some justification,” such as some articulable suspicion of criminal activity, must accompany a war-rantless brief detention and search. In Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), the Supreme Court recently compared a probing tactile examination of soft-sided luggage stored by a bus passenger in an overhead luggage compartment to a pat down of a suspect under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Chief Justice Rehnquist’s majority opinion stated that the passenger had a reasonable expectation of privacy in his luggage, distinguished between visual and tactile observation, and concluded that the border patrol agent’s feeling of the bag in an exploratory manner violated the passenger’s Fourth Amendment rights. Id. at 377-39, 120 S.Ct. at 1464-65 (emphasis added).

II. Public waters

The state argues that, unlike structures on private or commercial land, fish houses are on public waters controlled by the state, so the normal constitutional guarantee of at least some limited expectation of privacy in a structure does not apply. We have no idea where the state came up with this argument. The state knows well that in addition to lakes, the State of Minnesota maintains thousands of acres of public parks for recreational activity. The vast majority of state-owned parks accommodate motor homes, campers, and tents; many have buildings that the state leases to the public for one day or several days. The state cannot reasonably claim that no one occupying an owned or leased structure or shelter on state land has an expectation of privacy. Nor can the state argue that one who rents a structure the state owns in a state park rents with the understanding that there is no expectation of privacy in that structure and that law enforcement officers can enter any time and inspect the occupants and the interior for a “proper park use permit” and/or any illegal activity.

Probably 99.9% of traffic crimes take place on “public highways” and/or “public streets.” The state has never argued that, in prosecuting crimes against the state committed on public roads, a “shroud appears over constitutional guarantees” of due process and fairness. Public officials in public buildings who embezzle, steal, or otherwise misappropriate public funds are entitled to the same constitutional guarantees of due process and fairness as individuals who are not on public property. Until now, no one has ever argued the contrary.

The state argues that taking too many fish is a theft of property from the state, committed on public waters, and that the crime somehow becomes the product of a commercial enterprise, so constitutional guarantees are limited. See New York v. Burger, 482 U.S. 691, 707, 107 S.Ct. 2636, 2646, 96 L.Ed.2d 601 (1987) (concluding junkyard operator engaged in vehicle dismantling has reduced expectation of privacy because business is closely regulated). We see no difference between stealing too many fish from the state and going onto state-owned land and stealing timber or firewood. A citizen accused of stealing firewood or fish has the same constitutional guarantees of fairness and due process as citizens accused of other crimes. Again, the opposite has never before been argued.

III. Locked door

The state points out that by law fish houses cannot be locked from the inside. See Minn.Stat. § 97C.355, subd. 3 (2000) (prohibiting any person from using a fish house unless door is constructed so it can be opened from outside when in use). Thus, the state argues that the constitutional prohibition against warrantless entries does not apply and that conservation officers have the right to enter fish houses at any time without any justification. We are not persuaded by this argument. Under Minnesota law, for public safety and/or fire safety reasons, numerous structures are required to be kept open during the time when it is anticipated the structure will be used and occupied by members of the public. See, e.g., Minn.Stat. § 299F.30, subd. 3 (2000) (requiring all doors and exits of schools to be kept unlocked from inside during school hours).

Unlocked doors are the norm in all public buildings in Minnesota where the public comes and goes during normal operational hours. Obviously, all retail establishments of any kind have unlocked doors hoping the public will come in to shop. In these unlocked buildings, the Minnesota Constitution and the Bill of Rights remain firmly in place for occupants. Unlocked doors do not vaporize rights to privacy and constitutional limitations on search and seizure. The district court in Krenz, when suppressing evidence found inside the fish house, cited State v. Sorenson, 441 N.W.2d 455 (Minn.1989):

The court then addressed the stop of defendant’s vehicle. The court determined that a conservation officer is subject to the same Fourth Amendment requirements as other law enforcement officers. Id. at 459 (citing State v. Richards, 284 N.W.2d 549 (Minn.1979)). The court rejected the state’s argument that Minnesota Statute § 97A.205(2) gives the conservation officers broader powers: “Of course, a statute cannot confer rights on law enforcement officers that the U.S. Constitution denies.” Id. “Searches by conservation officers are no less intrusive than police searches and the same possibilities exist for abuse.” Id.

State v. Krenz, No. K7-00-1214, slip op. at 6 (Minn.Dist.Ct. Mar. 16, 2001) (emphasis added). The legislature does not have the power, by requiring doors to be unlocked, to do away with constitutional limitations and to exempt law enforcement officers from their scope.

IV. Random Search and Seizures

The state takes the position that, on any lake in Minnesota, a conservation officer can select any fish house or houses at random, walk up, announce his title and simultaneously open the door and walk in to determine if the occupant has the necessary licenses and/or permits and is obeying all fishing regulations. The state claims that this power is inherent in conservation officers, and those officers often need no articulable suspicion of criminal activity, no probable cause, no warrant, etc. to search fish houses. The right of law enforcement officers to conduct random checks, the seminal constitutional issue here, is controlled by Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn.1994). The issue of random checks of fish houses is not just similar to the random checkpoint stops of automobiles in Ascher; it is precisely like the Ascher checkpoini/roadblocks.

The public policy argument that the state put forth in Ascher, the state’s interest in deterring drunken driving on our roads, was far more compelling than the public policy behind game and fish laws. Game and fish violations are commonly misdemeanors and gross misdemeanors, just like most driving violations, including the more serious misdemeanors and gross misdemeanors such as driving while intoxicated. Nothing sets a violation of the game and fish laws apart from all other crimes. The state cannot argue with logic or reason that conservation officers have more leeway to enter, detain, search, and seize in pursuit of a citizen who may have an extra walleye, duck, pheasant, or extra fishing line than law enforcement officers in pursuit of a citizen alleged to have committed armed robbery or murder!

We note that conservation officers are law enforcement officers. They are POST (Peace Officer Standards and Training) certified, authorized to carry handguns, handcuffs, and all other law enforcement equipment, and, within their own sphere and scope of jurisdiction, they are authorized to investigate, detain, arrest, seize, search, and question suspects. The seminal issue is, whether “conservation officers are under the same constitutional constraints as other law enforcement officers in the performance of their duties?” The question is the answer, and is its own citation. The state points to nothing that puts Minnesota conservation officers outside the pale of constitutional law.

In Ascher, the Minnesota Supreme Court acknowledged the state’s public-policy argument of deterring drunk drivers and then went on to find unequivocally that random checkpoint stops violated the Minnesota Constitution. The specific holding was:

Exercising our independent authority to interpret our own state constitution to protect the rights of the citizens of Minnesota, we have engaged in a judicial determination of the reasonableness of the use of a temporary roadblock to stop a large number of drivers in the hope of discovering evidence of alcohol-impaired driving by some of them and have concluded that it violates Minn. Const, art. I, § 10, which we have long held generally requires the police to have an objective individualized articulable suspicion of criminal wrongdoing before subjecting a driver to an investigative stop.

Id. at 187 (citation omitted).

The Ascher court acknowledged a different interpretation by the United States Supreme Court on random checkpoints:

In Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the United States Supreme Court, in a decision written by Chief Justice Rehnquist, used this test in concluding that use of temporary roadblocks to stop and investigate all drivers in the hope of catching some alcohol-impaired drivers does not violate the Fourth Amendment.
The Court began its analysis by stating the obvious: “No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.”

Id. at 185 (quoting Sitz, 496 U.S. at 451, 110 S.Ct. at 2485). The Ascher court then pointed out that the U.S. Supreme Court appeared interested only in results:

Pointing to evidence that such roadblocks result in drunken driving arrests of around one percent of all motorists stopped, the Court held that the state had established effectiveness. In summary, the Court said, “the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.”

Id. (quoting Sitz, 496 U.S. at 455, 110 S.Ct. at 2487) (citation omitted).

Minnesota does it differently. The Ascher court stated in pertinent part:

The real issue in this case is not, as some might phrase it, whether the police conduct in question is reasonable in some abstract sense, nor is it whether the police procedure is in some sense effective. Rather, the issue is whether the state has met its burden of articulating a persuasive reason for departure from the general requirement of individualized suspicion!)]

Id. at 186.

Today, the state argues that conservation officers need broader powers because it is reasonable and effective for them in the performance of their duties. The Ascher court answered the argument that checkpoint stops were effective in deterring drunken drivers by pointing to the Minnesota Constitution. We point out here that you simply substitute “random fish house entries” for “random checkpoint stops” and the issue rises to one of constitutional dimensions under the Minnesota Constitution. The state asked the question in Ascher, and the Ascher court answered the question.

Conservation officers are not prejudiced by Sorenson, Ascher, or this case. As respondent’s attorney correctly argued, conservation officers have the same range of powers in the performance of their duties as all law enforcement officers, including: relying on personal observations, tips, and confidential informants, stopping and briefly detaining a person because of an objective articulable suspicion of criminal activity, arresting for crimes committed in their visual presence, arresting for probable cause 'without a warrant, searching based upon a warrant, or searching without a warrant under an enumerated exception, and so on and so forth.

Since statehood, the Minnesota Constitution and the Bill of Rights have served well the judiciary, the prosecution, the criminal defense bar, and law enforcement officers. These twin documents embody the right and the obligation given to conservation officers to work under, to work with, and to recognize the historical limitations on the power of state government over its citizens. Neither any other group of law enforcement officers, nor the attorney general’s office on their behalf, has ever challenged this obligation.

IV. LEGISLATIVE BYPASS

The state next argues that the Minnesota Legislature has made the conduct of the conservation officer in Krenz and in this case lawful. The state quotes specifically Minn.Stat. § 97A.215, subd. 3(1), which states: “An enforcement officer may, at reasonable times: (1) enter and inspect the premises of an activity requiring a license under the game and fish laws[.]”

We have no quarrel with the statute. It is simply a restatement of the obvious. The key phrase and limitation is “at reasonable times.” The legislature, if it wants to, can legislate that any law enforcement officer, including, without limitation, state highway patrol, county sheriffs, city police, conservation officers, etc., may enforce, at reasonable times, all criminal laws. That would be a nice-sounding statement of public policy, and no one would argue with it. But what the legislature may not do by statute is bypass the Bill of Rights and/or Minnesota Constitution. We read into the phrase “at reasonable times” the final authority of the Minnesota Constitution and the United States Constitution. We read this into the phrase because, as a judiciary, we must.

This precise battle over a legislative attempt to override a constitutional guarantee was fought out in the United States Supreme Court in Dickerson v. United States, 530 U.S. 428, 437, 120 S.Ct. 2326, 2332, 147 L.Ed.2d 405, (2000) (stating “Congress may not legislatively supersede our decisions interpreting and applying the Constitution” (citation omitted)).

The relevant setting in Dickerson is as follows:

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the U.S. Supreme Court held that certain warnings had to be given to a suspect before any incriminating statements made by him during custodial interrogation could be admitted in evidence. Just two years after Miranda was decided, the U.S. Congress enacted 18 U.S.C. § 3501, which purported to state that confessions would be admissible evidence if voluntarily given. See Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, § 701, 82 Stat. 197, 210-11 (1968) (codified as amended at 18 U.S.C. § 3501 (1994)). Voluntariness would be decided under 18 U.S.C. § 3501 with or without the giving of the Miranda warning. That statute lay idle for approximately 30 years as the justice department and law enforcement must have realized that the U.S. Congress probably cannot overrule the U.S. Supreme Court and its interpretation of the Bill of Rights. Then law enforcement decided to give it a try and found a federal appellate court to go along with them in upholding the constitutionality of 18 U.S.C. § 3501. The U.S. Supreme Court took the case on certiorari and said, “No, you can’t do that.”

State v. Baumann, 616 N.W.2d 771, 776 (Minn.2000) (Randall, J., concurring specially), review denied (Minn. Nov. 15, 2000).

In Dickerson, the majority stated:

Given § 3501’s express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that Congress intended by its enactment to overrule Miranda. Because of the obvious conflict between our decision in Miranda and § 3501, we must address whether Congress has constitutional authority to thus supersede Miranda. If Congress has such authority, § 3501’s totality-of-the-circumstances approach must prevail over Miranda’s requirement of warnings; if not, that section must yield to Miranda’s more specific requirements.
The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals.
In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves. The judgment of the Court of Appeals is therefore Reversed.

Dickerson, 530 U.S. at 436-47, 444, 120 S.Ct. at 2332, 2336-37 (citations and footnote omitted).

This limitation on Congress to legislatively supersede the Bill of Rights has a counterpart in the limitation on a state legislature to supersede its own state constitution. Here, Minnesota’s relevant constitutional guarantee against unreasonable stops and seizures is embedded in the Minnesota Constitution, Article I, Section 10. A state legislature can establish the law, but it cannot override its own state constitution. We can only conclude that, if the Minnesota legislature wanted to make a generic public policy statement in Minn. Stat. § 97A.215, subd. 3(1), it had the right to. But we cannot conclude from subdivision 3(1) that the legislature expressly intended to authorize the entry and the search and seizure method used in this case and in Krenz. We have not yet amended the Minnesota Constitution to so provide.

Our answer is simple. If the county attorney, the county sheriff, the chief of police, and all other law enforcement personnel in the performance of their sworn duties are subject to the Minnesota Constitution and the United States Constitution, so also are Minnesota conservation officers. No other rational answer can be given.

To paraphrase the holding in Krenz, the state still has not explained to the judiciary why the enforcement of game and fish laws is outside the scope of the historical constitutional limitations on the power of government.

DECISION

The district court correctly concluded that the constitution applies to conservation officers. So do we.

Affirmed.

      . The two terms are so similar that they are often used interchangeably. "Ice-fishing house” is commonly used when the fisherman is angling, meaning using fishing lines, and "dark house” is commonly used when the fisherman is using a fish spear. To keep the terminology simple, this opinion will hereafter use the generic term "fish house” to explain the issue.

      . Fishing includes "angling in the summer” and "ice fishing in the winter.”


source: Caselaw Access Project

author: CRIPPEN, Judge.

license: Public Domain

text:
    Steven Edward ROSE, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C9-01-884.
    Court of Appeals of Minnesota.
    Dec. 26, 2001.

      Jonathan N. Jasper, Jasper and Walker, P.L.L.C., Anoka, MN, for appellant.
    Mike Hatch, Attorney General, Michael R. Pahl, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by CRIPPEN, Presiding Judge, ANDERSON, Judge, and HUSPENI, Judge.

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

   OPINION

CRIPPEN, Judge.

The trial court sustained the revocation of appellant’s driver’s license. Appellant Steven Rose challenges the trial court’s admission of a breath test, contending that the police officer who stopped him did not have an articulable basis to do so. Because there is merit in appellant’s contention, we reverse.

FACTS

On December 12, 2000, Elk River Police Officer Olmscheid received a call from a Sherburne County dispatcher about a possible intoxicated driver. The dispatcher reported that an employee from Beaudry Express, an Elk River gas station, reported that a possible intoxicated driver was heading west on Highway 10 from Proctor Avenue in a maroon van and gave the driver’s license-plate number. The gas station is located at the intersection of Proctor Avenue and Highway 10. The dispatcher also told Officer Olmscheid that the employee provided fell complainant information, meaning fell name, date of birth, address, and phone number.

Officer Olmscheid proceeded west on Highway 10, where he saw a pair of van taillights near the city limits of Elk River. He followed the van outside the city limits and caught up to the van on County Road 15, approximately 100 or 200 feet north of Highway 10. Once the officer got closer to the van, he noticed the description and license plate of the vehicle matched the information provided by the gas-station employee. The officer did not observe any erratic or illegal driving by the driver, but based on the employee’s tip, the officer stopped the van. After identifying appellant as the driver, the officer turned him over to a Sherburne County deputy sheriff. Appellant failed a breath test, and his driver’s license was later revoked.

Appellant challenged the license revocation at the implied consent hearing, arguing that the stop was unconstitutional because the employee’s tip was insufficient to form a basis for the stop and because the officer lacked authority to stop appellant’s vehicle outside of his jurisdiction. The trial court sustained the revocation, holding that (1) the employee’s tip provided sufficient information to warrant the stop; and (2) the officer, who was deputized by Sherburne County, was acting within his jurisdiction when he made the stop.

ISSUE

Did the police officer have an articulable cause to perform an investigatory stop?

ANALYSIS

When the facts are not disputed, an appellate court reviews the validity of a stop as a matter of law. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985).

In accordance with the Fourth Amendment, a police officer may not stop a vehicle without a specific and articulable suspicion of a violation. Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The factual basis necessary to maintain a routine traffic stop is minimal and need not arise from an officer’s personal observations. Marben, 294 N.W.2d at 699; Terry, 392 U.S. at 21, 88 S.Ct. at 1880. A factual basis may also be supplied by information acquired from another person, including an informant. Marben, 294 N.W.2d at 699. A private citizen who provides information relevant to the stop is presumed reliable. Id.

Minnesota case law involving traffic stops based on informant tips has focused on two factors: (1) identifying information provided by the informant; and (2) the facts supporting the informant’s assertion that a driver is under the influence. Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn.App.2000). Neither factor is separately dispositive, and the determination of whether the officer had a reasonable suspicion of criminal activity at the time of the stop is based on the totality of the circumstances. Id.

A. Identifying information provided by the informant.

Appellant argues that the informant’s call was not reliable because there is no evidence that the caller provided identifying information. This court has distinguished between anonymous and identifiable informants. An officer is justified in presuming the informant is truthful in identifying himself if the informant provides sufficient information to locate him and hold him accountable for providing false information. City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890-91 (Minn.1988); Playle v. Comm’r of Pub. Safety, 439 N.W.2d 747, 748 (Minn.App.1989). An informant who provides sufficient identifying information is not anonymous, even if the informant does not provide a name. Shepherd, 420 N.W.2d at 890-91 (holding that a caller who reported a drunk driver and identified himself as an attendant at a particular gas station was sufficient identifying information to find the tip reliable); Playle, 439 N.W.2d at 748 (holding that a caller who identified himself as a Burger King employee was enough information to make his tip about a drunk driver reliable). Here, the caller identified himself as an employee at the Beaudry Express. Also, Officer Olmscheid asked the dispatcher if the caller provided full complainant information, and the dispatcher assured the officer such information had been received.

Little dispute was raised at the trial court regarding the reliability of the identification information given to the police officer. There was sufficient evidence to show that the tipster was an identifiable informant. See Shepherd, 420 N.W.2d at 890-91.

B. Facts supporting the informant’s assertion that a driver was intoxicated.

The main issue presented is whether a police officer has an articulable basis for an investigatory stop if he is only told to watch for a possible intoxicated driver without being given any specific information or affirmative opinion that the person is in fact intoxicated. An officer may make an investigatory stop without observing any erratic driving if the citizen’s tip has a basis to support the allegation of criminal activity. Shepherd, 420 N.W.2d at 891; Playle, 439 N.W.2d at 748. Because the employee here did not provide any indication of how he concluded that the driver was possibly drunk, appellant argues that this case is analogous to Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 555 (Minn.1985).

In Olson, two sheriff deputies received a radio dispatch that a citizen had called in reporting that he observed a — possibly drunken driver. Id. at 553. The caller described the car, provided the license-plate number, gave the direction the car was headed, but did not give any identifying information about himself or any indication as to how he concluded that the driver was drunk. Id. The deputies followed the car but did not notice any erratic driving. Id. Based on the tip, the deputies pulled over Olson, detected alcohol on his breath, and arrested him for driving while under the influence. Id. The court noted that there was no information about the informant and no information about what the informant saw that could have led him to believe the driver was possibly drunk. Id. at 556. The court found that the anonymous tip lacked the most minimal indicia of reliability and that the stop was based on the mere whim of an anonymous caller. Id. at 556.

The basis for the informant’s tip in Olson was twice flawed because there was neither identifying information about the informant nor any information about how the informant reached the conclusion that the driver was drunk. Here, the circumstances are different because we are confronted only with a question of the employee’s basis for stating that the driver was drunk.

If the police chose to stop on the basis of the tip alone, the anonymous caller must provide at least some specific and articu-lable facts to support the bare allegation of criminal activity. Not much is required, especially for a traffic stop for a suspected traffic offense then in progress. All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.

Olson, 371 N.W.2d at 556 (quoting People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 74, 330 N.E.2d 39, 44 (1975)).

We conclude that Olson is particularly important in finding flawed a report of a possible intoxicated driver. The Minnesota Supreme Court was again confronted with an informant who reported an intoxicated driver in Shepherd but distinguished Shepherd from Olson because the informant reported an intoxicated driver and saw the driver leave the gas station.

Here the caller said that an intoxicated driver (not a possibly intoxicated driver) had just left the station. This information suggested that the driver had been in the station and that the caller’s information was based on personal observation of the driver himself, just as the information relayed in Marben and [State v.] Davis[, 393 N.W.2d 179 (1986)] had been based on personal observation.

Shepherd, 420 N.W.2d at 891. Here, the record does not support an inference that the gas-station employee personally observed appellant, and there is no information in the record regarding how the employee concluded that the driver might be drunk. The trial court may have been correct in observing that an affirmative report of a drunk driver may constitute an articulable suspicion for the stop, but the same conclusion cannot reasonably be made based on a report of a possibly intoxicated driver.

The fourth amendment protection applies at the time the police intrusion is undertaken and is not to be judged by what the police learn after the intrusion. * * * * It would have been a simple matter for the dispatcher to have elicited some minimal specific and articulable facts from the anonymous caller to support the caller’s bare assertion of a possibly drunk driver on the road.

Olson, 371 N.W.2d at 556. We conclude that the officer did not have an articulable basis to stop appellant’s car. Because this issue is dispositive of the case, we decline to address appellant’s alternative contention that the police officer did not have authority to make an investigatory stop outside of his jurisdiction.

DECISION

Because the police officer relied solely on an informant’s tip of a possible intoxicated driver, which did not provide an affirmative report of drunkenness or any information suggesting that state, the officer did not have an articulable suspicion to stop appellant. Appellant’s breath test is inadmissible, and the decision to sustain appellant’s driver’s license revocation must be reversed.

Reversed.


text:
    STATE of Minnesota, Appellant, v. Jeremy Patrick WAGNER, Respondent.
    No. C9-01-903.
    Court of Appeals of Minnesota.
    Dec. 26, 2001.

      Mike Hatch, Attorney General, St. Paul; and Christopher D. Karpan, Douglas County Attorney, Marcia G. Bremer, Assistant Douglas County Attorney, Douglas County Courthouse, Alexandria, for appellant.
    John J. Kastner, Jr., Gerald Miller & Associates, P.A., Minneapolis, for respondent.
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and KLAPHAKE, Judge.
   OPINION

R.A. RANDALL, Judge.

The state challenges a pretrial order suppressing evidence of respondent’s intoxication and dismissing the gross-misdemeanor driving-while-intoxicated complaint. The state argues (1) that the district court erred in ruling that the trooper, who saw respondent’s vehicle drive on the shoulder of the road, then cross the center line, then speed up as if to evade the officer, did not have articu-lable suspicion supporting the stop; and (2) that the district court should have collaterally estopped respondent from challenging the legality of the stop when that issue was determined adversely at an earlier implied-consent proceeding. We affirm in part and reverse in part.

FACTS

On July 2, 2000, at approximately 1:20 a.m., a state patrol trooper with 12 years of experience headed into the city of Kens-ington in a marked squad car upon the request of Douglas County. He was traveling southbound and about to enter Kens-ington when he observed a vehicle heading northbound. Just before the trooper met the vehicle, the vehicle drove onto the shoulder. As the vehicle continued northbound, the trooper watched the vehicle in his rearview mirror and observed the vehicle cross the center line. The trooper turned his patrol car around and attempted to catch up to the vehicle to see if that driving behavior continued. The trooper traveled approximately 80 to 90 miles per hour in an attempt to catch the vehicle, which was then quite a distance ahead of the trooper.

While the trooper attempted to catch the vehicle, the vehicle passed another car, then immediately braked and turned right. The trooper found the vehicle’s evasive behavior suspicious and decided to investigate. The trooper followed the vehicle onto what he thought was a township road, but the road was actually a driveway. The trooper caught up to the vehicle in the half-mile-long driveway when the vehicle took the left side of a circle in the driveway and the trooper went around the right side.

The trooper identified the driver as respondent Jeremy Wagner. When the trooper went up to the car, he detected the scent of alcohol coming from the vehicle and then smelled alcohol on respondent’s breath. Additionally, respondent exhibited signs of intoxication, including slurred speech and bloodshot eyes.

Respondent was subsequently arrested for DWI and his driver’s license was revoked under Minnesota’s implied consent law. In September 2000, respondent challenged the legality of the stop at an implied-consent hearing. The implied-consent court determined that the stop was legal and sustained respondent’s driver’s-license revocation.

Later, at a pretrial hearing in the DWI criminal proceeding, respondent again challenged the legality of the stop and moved to dismiss the complaint. The state argued that the court should apply collateral estoppel and prevent respondent from challenging the legality of the stop because the implied-consent court already determined that issue. The district court refused to apply collateral estoppel stating, “[T]his is a criminal case, and I think that he has a right to be heard.”

Then the DWI court heard testimony about the circumstances surrounding the stop. On cross-examination, after the trooper testified that he observed the vehicle drive on the shoulder and cross the center line, the arresting officer was asked:

Q. And it was at that point, based on that traffic violation, you decided to turn around and initiate an investigatory stop, correct?
A. Well, I just — at that point I was just going to turn around just to, just to watch the driving behavior a little more, you know. I wasn’t — I wasn’t prepared just to stop him on that. I wanted to see what — if this continued.
⅜ ⅜ ⅞ ⅜
Q. Now, you’ve testified that at the point where this pickup truck crossed the center line you had not decided to stop that vehicle, correct?
A. Correct.
Q. And it was only after seeing Mr. Wagner’s vehicle, after you crested the hill, that you decided to stop, actually investigate and stop him, correct?
A. Yeah, it was after, after it appeared that he was so far ahead of me and all of a sudden passed another vehicle and then braked to take a right turn, to me that was something that wasn’t quite right, so it was, it was at that time that I decided that this one I was going to try and stop and find out what was going on.
Q. Okay. And, correct me if I’m wrong, so when you saw the vehicle brake hard and make the turn into the driveway, it was at that point that you decided you wanted to investigate, correct?
A. Correct.
Q. And it’s because in your own words you wanted to see what was going on?
A. Yeah, there was — to me there was something wrong, I mean they were trying to hide something or trying to, to get away from me for some unknown reason. That, that’s how it appeared to me.
Q. Okay. So really it was more the I guess evasive conduct than anything that kind of raised your suspicions? A. Correct.

Based upon the trooper’s testimony, the DWI court concluded that the trooper did not have specific articulable facts of wrongdoing to stop respondent and granted respondent’s motion to dismiss. In the court’s memorandum of law attached to the order, the court stated:

Trooper Ras testified that he did not have a reasonable suspicion to stop the pick-up truck the Defendant was driving after he saw the Defendant driving on the shoulder and then subsequently cross the center line. Because of this statement the Court must only look to the events that followed to decide the issue of the validity of the stop.

The court determined that the events following the vehicle crossing the center line did not warrant a stop and specifically noted that all of respondent’s actions after leaving Kensington were legal.

ISSUES

I. Did the district court err in determining that the stop was not supported by reasonable, articulable suspicion?

II. Should collateral estoppel apply against a defendant in a criminal case when the same issue was unsuccessfully litigated at a prior implied-consent hearing?

ANALYSIS

I. Stop

The Fourth Amendment, which protects citizens from unreasonable searches and seizures, is implicated when a police officer stops a vehicle. State v. Fiebke, 554 N.W.2d 755, 756 (Minn.App.1996). Police may

conduct limited stops to investigate suspected criminal activity when the police can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

State v. Britton, 604 N.W.2d 84, 87 (Minn.2000) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). The officer does not need probable cause for an investigatory stop, and does not need to detect an actual violation. Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980). Following 1980, the threshold of “articulable suspicion” is a threshold, but less of a threshold than “probable cause.”

When reviewing a district court’s determination of the legality of a limited investigatory stop, an appellate court reviews questions of reasonable suspicion de novo. Britton, 604 N.W.2d at 87.

If the police officer has a “particularized and objective basis for suspecting the particular person stopped of criminal activity,” the investigatory stop is valid. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981) (citations omitted). All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. Marben, 294 N.W.2d at 699; see also State v. Claussen, 353 N.W.2d 688, 690 (Minn.App.1984) (recognizing threshold required to stop vehicle to investigate potential wrongdoing is very low). A reviewing court considers the totality of the circumstances in determining whether the police had a reasonable basis justifying the stop. Cortez, 449 U.S. at 417, 101 S.Ct. at 695.

The state contends that the trooper engaged in a lawful traffic stop because the trooper observed respondent drive on the shoulder, cross the center line, and then exhibit evasive behavior. Based on driving from the shoulder, back across the center line, we agree.

When there is credible testimony that the driver actually crossed the center line, this court and the supreme court have uniformly found investigatory stops valid. See, e.g., iState v. Richardson, 622 N.W.2d 823, 825 (Minn.2001) (finding reasonable suspicion when vehicle crossed fog line and there was anonymous tip); State v. Schinzing, 342 N.W.2d 105, 106, 109 (Minn.1983) (holding objective basis for stop when vehicle did not display license plate, had object hanging from rearview mirror, and made wide turn and crossed center line); State v. Bunde, 556 N.W.2d 917, 919 (Minn.App.1996) (finding reasonable suspicion when vehicle turned without signaling and crossed center line); Shull v. Comm’r of Pub. Safety, 398 N.W.2d 11, 14 (Minn.App.1986) (finding reasonable suspicion when driver drove slower than necessary and crossed center line). “Ordinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.” State v. George, 557 N.W.2d 575, 578 (Minn.1997) (citations omitted). And Minn.Stat. § 169.18, subd. 7(a) (2000), provides that a “vehicle shall be driven as nearly as practicable entirely within a single lane.” Crossing the center line is a violation of the traffic laws and will usually provide the officer with an objective, reasonable suspicion to conduct an investigatory stop. Here, respondent crossed the center line and drove on the shoulder. The trooper had an objective, reasonable, and articulable basis for the stop.

We do not criticize the district court for giving deference to the trooper’s experience. See Richardson, 622 N.W.2d at 825 (acknowledging that trained law-enforcement officers are permitted to make inferences and deductions that would be beyond competence of untrained person). Whenever a defendant driver appeals a stop case, the prosecuting attorney always “hammers home” the point that the officer on the street has the ability to draw inferences that the average layperson may not and that great deference should be shown to the officer’s experience. Further, when the district court hears testimony on the legality of investigatory stops, the district court’s factual findings are entitled to deference. State v. Shellito, 594 N.W.2d 182, 186 (Minn.App.1999) (findings of fact reviewed under clearly erroneous standard). But on appeal, a reviewing court determines, as a matter of law, whether an officer’s observations provided an adequate and objective basis for the stop. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985).

The key to our analysis is that while a law-enforcement officer’s opinion of his stop, while having some weight, cannot be determinative, just as a law-enforcement officer’s opinion that he had enough evidence for a valid stop is not determinative. That final decision belongs to a neutral and independent judiciary. Here, the district court decided it could only look at the evidence gathered at the last minute, the passing of a car, the braking, and the turning into a driveway. That was erroneous. The district court was entitled to look at all of respondent’s conduct, even though the trooper did not stop respondent immediately after respondent crossed the center line. See Cortez, 449 U.S. at 417, 101 S.Ct. at 695 (stating reasonable suspicion determined by totality of circumstances).

We conclude that the district court erred when it determined that it could not consider any of respondent’s driving conduct that occurred before the trooper’s subjective thought that he wanted to observe the driver go a little farther because he might not have enough evidence at that point to make a stop. Here, the trooper observed respondent drive on the shoulder, cross the center line, and then speed up and turn sharply. The totality of the circumstances establishes that the trooper had an objective and a reasonable suspicion to stop the vehicle.

II. Collateral Estoppel

This court applies “de novo review to questions of collateral estoppel.” G.A.W., III v. D.M.W., 596 N.W.2d 284, 287 (Minn.App.1999) (citations omitted), review denied (Minn. Sept. 28, 1999). Collateral estoppel is “a form of res judicata whereby a former judgment is conclusive in a later suit between the same parties or their privies.” Matter of Congdon’s Estate, 309 N.W.2d 261, 271 (Minn.1981) (emphasis omitted) (citation omitted). Collateral estoppel is appropriate where

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the es-topped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Willems v. Comm’r of Pub. Safety, 333 N.W.2d 619, 621 (Minn.1983) (quotation and citations omitted). Courts use collateral estoppel “to prevent parties to an action from relitigating in subsequent actions issues that were determined in the prior action.” N.W. Nat. Life Ins. Co. v. County of Hennepin, 572 N.W.2d 51, 53 (Minn.1997) (quotation omitted). “As a flexible doctrine, the focus is on whether its application would work an injustice on the party against whom estoppel is urged.” Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn.1988) (citation omitted).

The state contends that because the implied-consent court previously determined the stop was valid, respondent is collaterally estopped from arguing in a later DWI hearing that the trooper’s stop of respondent’s vehicle was illegal. We disagree.

First, while the issues litigated in the criminal, and the implied-consent proceedings appear alike, they are not identical. The DWI is criminal and the implied consent is civil. It is settled that implied-consent proceedings are civil in nature. State, Dep’t of Pub. Safety v. Mulvihill, 303 Minn. 361, 368, 227 N.W.2d 813, 818 (1975); State, Dep’t of Pub. Safety v. House, 291 Minn. 424, 425, 192 N.W.2d 93, 94 (1971); State v. Nelson, 608 N.W.2d 913, 915 (Minn.App.2000), review denied (Minn. June 27, 2000). A criminal DWI proceeding and an implied-consent proceeding are “related only to the extent that they both generally grow out of the same set of facts.” House, 291 Minn. at 425, 192 N.W.2d at 94-95.

Second, the criminal defendant and the petitioner in the implied-consent proceeding are the same person but with different interests at stake. While a petitioner in an implied-consent proceeding has only his driving privileges at stake, a criminal defendant has a fundamental liberty interest at stake. See Minn.Stat. §§ 169A.50-.53 (2000) (implied consent); Minn.Stat. §§ 169A.20, .25, .275 (2000) (criminal). The implied-consent-hearing petitioner may not have the same incentive to fully litigate issues at the implied-consent hearing. A petitioner might reasonably decide to conserve his available resources to challenge issues arising at the criminal proceeding where his liberty is at stake, thus resulting in less than a “fully litigated” issue at the implied-consent proceeding.

Third, because the implied-consent proceeding is civil, presumptions, burdens of proof, and evidentiary rules are different from a criminal proceeding. It would be fundamentally unfair to bind a defendant in a criminal proceeding to rulings based on an earlier civil hearing with lower standards. In criminal proceedings the state’s burden of proof is beyond a reasonable doubt. In implied-consent proceedings, the commissioner’s burden of proof is simply by a preponderance of the evidence. Johnson v. Comm’r of Pub. Safety, 392 N.W.2d 359, 362 (Minn.App.1986). The civil nature of the implied-consent proceeding means the defendant is not entitled to all the substantive constitutional rights associated with criminal matters. For example, only the criminal defendant has a right to a trial, a right against self-incrimination, a right to a hearing to determine probable cause, and a right to a hearing to determine the legality of the seizure or admissibility of evidence. Unlike criminal proceedings, the due-process right to potentially exculpatory evidence does not extend to civil implied-consent proceedings. Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 738-39 (Minn.App.2001).

It is elementary fundamental justice that the only presumption in criminal law is the presumption of innocence. See Taylor v. Kentucky, 436 U.S. 478, 483, 98 S.Ct. 1930, 1933, 56 L.Ed.2d 468 (1978) (recognizing that “[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law” (quotation omitted)). The “presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Id. at 479, 98 S.Ct. at 1931 (quotation omitted). In Minnesota, the presumption of innocence is a fundamental right. Boutin v. LaFleur, 591 N.W.2d 711, 717 (Minn.1999); see also State v. Kelly, 218 Minn. 247, 257, 15 N.W.2d 554, 560 (1944). Likewise, proof beyond a reasonable doubt is “as much a part of the constitution as though expressly set out.” Kelly, 218 Minn. at 257, 15 N.W.2d at 560 (citation omitted). But these fundamental rights only apply “to statutes which are punitive, or criminal, in nature.” Boutin, 591 N.W.2d at 717 (citation omitted).

This court is not about to rule that when a defendant loses at a civil implied-consent hearing, the incriminating evidence is “presumed admissible” at a later criminal proceeding, and the defendant is prevented from contesting a part of the state’s criminal case. A criminal defendant is presumed innocent and has the right to contest every essential element of the crime. The state has the strict burden of proof beyond a reasonable doubt. If this were not the law, evidentiary rulings in civil cases that happen to come before the criminal case would permanently bind a criminal defendant to civil evidentiary rulings in cases where different liberties are at stake. That has never been the law. A state “cannot use the result in a civil proceeding to bind a criminal defendant on any element of a crime as a matter of collateral estoppel.” McKinney v. Alabama, 424 U.S. 669, 689 n. 5, 96 S.Ct. 1189, 1200 n. 5, 47 L.Ed.2d 387 (1976) (Brennan, J., concurring) (emphasis omitted).

The state relies on this court’s recent opinion, State v. Victorsen, 627 N.W.2d 655 (Minn.App.2001), to support its assertion. In Victorsen, the implied-consent court found that a traffic stop was illegal, but the DWI court later found that the stop was legal and supported by a reasonable suspicion of criminal conduct. Id. at 659-60. This court concluded that collateral estoppel applies against the county or city prosecutor in a DWI proceeding when the validity of the stop has been contested in the implied-consent hearing and the county or city prosecutor has notice of the Rasmussen hearing. Id. at 662-63. Victorsen expressly limited the decision to prosecutors in a DWI proceeding and recognized the fundamental problem with applying collateral estoppel to defendants:

We recognize that, under the current scheme, implied consent hearings and criminal pretrial hearings do not always involve the same evidence. For example, drivers in civil implied consent proceedings may assert the privilege against self-incrimination if it can be reasonably apprehended that the statements could be used against them in a criminal prosecution. But in a criminal pretrial hearing, this privilege is not available because the defendant does not waive the constitutional right against self-incrimination by testifying. Therefore, even if the estopped party, the facts and the issue remain the same, this difference in evidentiary rules might prevent a defendant from receiving a full and fair opportunity to be heard on the adjudicated issue. For that reason, we decline to determine today whether a criminal defendant may be collaterally estopped from challenging the legality of a stop when, in a prior implied consent hearing, the court determined that it was legal.

Id. at 662 n. 1 (emphasis added) (citations omitted). Victorsen is persuasive for the principle for which it stands: the state may be bound at the civil implied-consent hearing by evidentiary rulings under the principals of collateral estoppel and res judicata. That does not mean the reverse, as to criminal defendants, is true.

[A] criminal conviction necessarily establishes that the requirement of a greater degree of proof has been met and * * * the party bound by it had every opportunity and incentive to litigate the issue.

Travelers Ins. Co. v. Thompson, 281 Minn. 547, 552, 163 N.W.2d 289, 293 (1968) (citations omitted). The United States Supreme Court has recognized that differences “in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel.” One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972) (holding civil action for forfeiture was not barred by owner’s prior acquittal of failure to comply with customs procedures). Additionally, although exceptions have been carved out from the general common-law rule that “a criminal judgment is not admissible as evidence in a civil action to establish a fact determined in the criminal action,” Travelers, 281 Minn. at 551, 163 N.W.2d at 292 (citations omitted), the law has never supported the proposition that a criminal defendant is bound by an earlier civil proceeding, McKinney, 424 U.S. at 689 n. 5, 96 S.Ct. at 1200 n. 5.

The district court correctly concluded that respondent was not collaterally es-topped from challenging the validity of the stop in this criminal proceeding even though he unsuccessfully litigated that issue in an earlier implied-consent civil proceeding.

DECISION

The district court erred in determining that the trooper did not have reasonable suspicion for the stop because the court did not consider respondent’s earlier driving behavior. The district court correctly refused to apply collateral estoppel against respondent.

Affirmed in part, reversed in part.

      . The district focused on the trooper’s statement:
      Well, I just — at that point I was just going to turn around just to, just to watch the driving behavior a little more, you know. I wasn't — I wasn't prepared just to stop him on that. I wanted to see what — if this continued.
      From that testimony, the district court concluded that “because of this statement the Court must only look to the events that followed to decide the issue of the validity of the stop.”


author: HARTEN, Judge.

text:
    SOUTHERN MINNESOTA CONSTRUCTION CO., INC., et al., Appellants, v. MINNESOTA DEPARTMENT OF TRANSPORTATION, et al., Respondents, International Union Of Operating Engineers Local 49, Intervenor.
    No. C4-01-999.
    Court of Appeals of Minnesota.
    Jan. 2, 2002.

      Gerald S. Duffy, Robert F. Rode, Siegel, Brill, Greupner, Duffy Foster, P.A., Minneapolis, for appellants.
    Mike Hatch, Attorney General, Kelly S. Kemp, Assistant Attorney General, St. Paul, for respondents.
    Paul W. Iversen, Williams & Iversen, P.A., Roseville, for intervenor.
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Appellants, construction companies, brought a declaratory judgment action against respondent Minnesota Department of Transportation (MinnDOT), seeking a declaration that MinnDOT did not have the authority under Minn.Stat. § 177.44, subd. 7, to conduct independent administrative enforcement actions of the prevailing wage act, MinmStat. §§ 177.41-.44. Appellants contend that MinnDOT may only investigate violations and refer them to county attorneys for prosecution. The district court concluded that MinnDOT had authority to conduct enforcement actions but granted summary judgment dismissing the declaratory action for lack of jurisdiction because appellants’ action was premature. Appellants challenge the summary judgment.

FACTS

Appellants Southern Minnesota Construction Co., Inc., (SMC), et. al., are construction companies in the highway construction business and aggregate business that were awarded contracts as the lowest responsible bidders for their respective highway projects. Shortly after SMC completed the construction project at issue, MinnDOT notified SMC by mail that it had investigated each project and determined that all employees at an off-site crushing plant used to provide aggregate materials were covered by the prevailing wage act because the plant did not meet the exemption criteria set forth in Minn. Stat. § 177.44, subd. 2 (2000). The letter also explained that, as the prime contractor, SMC was required to ensure that all of its employees and any subcontractor’s employees covered by the prevailing wage act received the correct certified wage rate for the classification of labor they performed and to submit the names of these employees to the project engineer on a certified payroll.

In a series of letters, SMC opined that MinnDOT’s determination was in error and MinnDOT explained the basis for its determination. After SMC failed to make the requested corrections within the time allotted, MinnDOT ordered SMC to pay the employees in accordance with the prevailing wage act. The letter ordering the payment provided for an administrative hearing if SMC disagreed with MinnDOT’s determination. SMC responded in writing by requesting either that the county attorney of the county in which the work was located investigate and prosecute or that there be an administrative hearing, “whichever is the statute in this matter.”

Administrative contested case actions were commenced against appellants. While administrative proceedings before the Office of Administrative Hearings (the OAH) were pending, appellants brought an action for declaratory judgment and a permanent injunction to halt the administrative proceedings and to prohibit MinnDOT from enforcing the prevailing wage act. The International Union of Operating Engineers Local 49 (the union) subsequently intervened.

On February 14, 2001, a hearing was held on the parties’ cross-motions for summary judgment. On April 11, 2001, the district court granted summary judgment to MinnDOT and the union, dismissing all of appellants’ claims. This appeal followed.

ISSUES

1. Did the district court properly determine that MinnDOT has statutory authority to conduct administrative proceedings to enforce the prevailing wage act?

2. Did the district court properly determine that it lacked jurisdiction because appellants’ action was premature?

ANALYSIS

1. Statutory Construction

The central issue is whether MinnDOT is authorized to use administrative procedures to enforce the prevailing wage act. Without statutory authority, administrative agencies such as MinnDOT cannot independently enforce a statute. McKee v. County of Ramsey, 310 Minn. 192, 195, 245 N.W.2d 460, 462 (1976). Thus, MinnDOT’s authority must derive from the statute. Construction of statutes is a question of law that we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

The enforcement provision of the prevailing wage act states:

The department of transportation shall require adherence to this section. The commissioner of transportation may demand and every contractor and subcontractor shall furnish copies of payrolls. The commissioner of transportation may examine all records relating to hours of work and the wages paid laborers and mechanics on work to which this section applies. Upon request of the department of transportation or upon complaint of alleged violation, the county attorney of the county in which the work is located shall investigate and prosecute violations in a court of competent jurisdiction.

Minn.Stat. § 177.44, subd. 7 (2000). SMC argues that this statutory language clearly and unambiguously provides that the statute is to be enforced by the county attorney of the county where the work is located. SMC claims that the statute creates a partnership between MinnDOT and the county attorneys in which MinnDOT’s role is merely to gather information regarding hours worked. SMC construes the first sentence, “[t]he department of transportation shall require adherence to this section” as a general grant of authority to ensure that contractors adhere to the prevailing wage law. SMC then construes the second and third sentences and part of the fourth sentence as specifying how Minn-DOT may require adherence (by demanding records, examining them and making requests to the county attorney to prosecute violators), and construes the remainder of the fourth sentence as revealing the other half of the partnership between MinnDOT and county attorneys and granting county attorneys authority to enforce the statute by criminal prosecution.

But “[a] statute should be construed so no phrase is superfluous, void, or insignificant.” Weber v. Hvass, 626 N.W.2d 426, 432 (Minn.App.2001) (quotation omitted), review denied, (Minn. Jun. 27, 2001). SMC’s construction effectively renders the first sentence superfluous. Although SMC argues that the effect of this provision is “to bestow statutory power upon MinnDOT,” it fails to articulate what power that sentence bestows. Given that the balance of section 177.44, subd. 7, includes specific grants of authority, we think it incongruous to construe the first sentence as doing no more than signal that the subsequent sentences will generally involve MinnDOT.

In contrast, MinnDOT’s construction gives each sentence meaning. The first sentence, stating that MinnDOT “shall require adherence” to the act, grants Minn-DOT broad authority to enforce the statute through administrative proceedings. The second and third sentences specify how company records are to be gathered and reviewed. The fourth sentence provides for county attorney enforcement of the prevailing wage act’s criminal provisions, either independently or upon reference from MinnDOT.

SMC notes that, in L & D Trucking v. Minnesota Dept. of Transp., 600 N.W.2d 734 (Minn.App.1999), review denied, (Minn. Oct. 12, 1999), we questioned Minn-DOT’s authority to enforce the act through administrative procedure. See id. at 737, n. 3 (noting that the prevailing wage law “provides for enforcement in the district court of the county in which the work was located”). But in. L & D Trucking, we specifically noted that section 177.44, subd. 7, charges MinnDOT with enforcement of the act. Id. at 736. Furthermore, the footnote at issue specifically states that none of the parties in L & D Trucking challenged MinnDOT’s enforcement procedures. Id. at 737 n. 3. Accordingly, the situation that gave rise to the L & D Trucking footnote is distinguishable. Moreover, construing the fourth sentence of the statute as creating a system of shared responsibility for enforcement, as per the L & D Trucking footnote, would be to ignore the context of the statute. Section 177.44 provides for both civil enforcement and criminal penalties in order to compel adherence.

Next, SMC argues that, even if the statute grants authority to “require adherence,” it does not grant broad authority to employ contested case administrative proceedings. But agencies may make case-by-case determinations when they are charged with enforcement of a statute, and we have already declared this to be appropriate under the prevailing-wage act. See id. at 736-37.

Finally, SMC argues that, because MinnDOT has the authority to compel county attorneys to prosecute violations, its authority to “require adherence” refers only to this power of referral. But, although criminal convictions may provide for punishment, they do not ensure adherence to the prevailing wage law. Accordingly, the first sentence does not refer solely to MinnDOT’s “power of referral” for criminal prosecution.

We conclude that the district court did not err in concluding that MinnDOT has statutory authority to construct administrative proceedings to enforce the prevailing wage act.

2. Jurisdiction

The district court also determined that the declaratory judgment action was premature because the OAH had not made any final orders, nor had the commissioner made a final decision on any of the administrative proceedings; therefore, any injuries were merely hypothetical and did not establish a justiciable controversy.

SMC argues that its claim is not premature under the declaratory judgment act. That act permits

[a]ny person * * * whose rights, status, or other legal relations are affected by a statute * * * may have determined any question of construction or validity arising under the * * * statute * * * and obtain a declaration of rights, status, or other legal relations.

Minn.Stat. § 555.02 (2000). But if the parties to a declaratory action present no justiciable controversy, the court is without jurisdiction to declare rights. St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 587 (Minn.1977). Possible or hypothetical injuries are not enough to establish a justiciable controversy. Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn.1996). Although the controversy need not be current in order to be justicia-ble, there must be at least “a bona fide legal interest which has been, or with respect to [which] the ripening seeds of a controversy is about to be, affected in a prejudicial manner.” Rice Lake Contracting Corp. v. Rust Environment and Infrastructure, Inc., 549 N.W.2d 96, 99 (Minn.App.1996) (quotation omitted), review denied, (Minn. Aug. 20, 1996). Until the administrative action ripens, it is premature to say that appellants’ legal interests are prejudicially affected. SMC rights are not affected by the statute until MinnDOT makes its final determination.

SMC argues that its rights are “affected” by the very fact that it must go through an administrative process that it believes to be wholly unauthorized. But section 555.02 does not provide for declaratory judgment of rights before the agency has made its determinations. Before MinnDOT instituted administrative proceedings, SMC could have brought a declaratory judgment action, but once administrative proceedings had begun, SMC’s right to bring a declaratory action to arrest those proceedings was foreclosed. Once “enforcement” begins, the proper judicial review is by certiorari of the commissioner’s final determination.

A party to an administrative proceeding is not entitled to judicial review of an administrative agency’s act or decision — even regarding its own jurisdiction — unless the party has exhausted its administrative remedies. Thomas v. Ramberg, 240 Minn. 1, 4-6, 60 N.W.2d 18, 20-21 (Minn.1953). SMC is now a party to ongoing administrative proceedings. As such, the district court correctly determined that it was without jurisdiction to intervene.

DECISION

The district court properly determined both that MinnDOT has statutory authority to conduct administrative proceedings with regard to alleged violations of the prevailing wage act and that, in any event, it did not have jurisdiction of appellants’ declaratory judgment action.

Affirmed.

      . Because we conclude that MinnDOT did have administrative authority under Minn. Stat. § 177.44, subd. 7, we do not address appellants' argument that the statute is void for vagueness.

      . SMC's situation is shared by the other appellant construction companies.

      . In contrast, the statute providing for declaratory judgments for the determination of the validity of an agency rule, Minn.Stat. § 14.44 (2000), specifically provides for declaratory judgment action where the “threatened application" of a rule interferes with the legal rights of a petitioner. Language pertaining to ongoing agency action is conspicuously absent from section 555.02.


author: SCHUMACHER, Judge.

text:
    STATE of Minnesota, Respondent, v. Aaron Timothy TORGRIMSON, Appellant.
    No. C2-01-905.
    Court of Appeals of Minnesota.
    Jan. 2, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Steven M. Tallen, Maple Grove City Attorney, Tallen Baertschi, Minneapolis, MN, for respondent.
    Robert D. Miller, Robert D. Miller and Associates, Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, SCHUMACHER, Judge, and PETERSON, Judge.
   OPINION

SCHUMACHER, Judge.

Appellant Aaron Timothy Torgrimson challenges the district court’s pretrial evi-dentiary ruling denying his motion to suppress surreptitiously taped statements he made while talking with another suspect in the back seat of a police vehicle. Torgrim-son contends that (1) the surreptitious taping violates his Fourth Amendment rights, and (2) failure to suppress the statements violates Minn.Stat. § 626A.04 (2000). We affirm.

FACTS

On December 3, 2000, State Trooper Wade Erickson was dispatched to investigate a report of an intoxicated driver traveling westbound on Interstate 94. Erickson observed a moving vehicle near the reported area with a license plate number matching the number he received from the dispatch. Erickson activated his emergency lights, and the driver pulled over and stopped the vehicle. Erickson approached the driver’s side of the vehicle and identified the driver as Eric Charles Hicks and the front-seat passenger as Torgrimson.

Erickson smelled the odor of alcohol emanating from the vehicle and noticed that Hicks had glassy and watery eyes. Hicks agreed to take a breath test and was placed in the back seat of Erickson’s squad car. Erickson then approached the passenger side of the vehicle, opened the passenger door, and saw the top of a bottle of “Captain Morgan,” an alcoholic beverage, sticking out of a McDonald’s bag on the floor near the passenger seat. Erickson also observed that Torgrimson’s speech was slurred, that he smelled strongly of alcohol, and that his eyes were bloodshot, glassy, and watery. Torgrimson exited the vehicle and Erickson observed that Torgrimson was unsteady on his feet.

Torgrimson was placed in the back seat of the squad car with Hicks. Erickson then turned on the micro-cassette tape recorder located inside the vehicle while he stepped outside to talk with the party who initially reported the incident. At this point, Torgrimson and Hicks engaged in a conversation in which both stated that Tor-grimson was originally driving the vehicle, that they had switched places shortly before being pulled over, and that they should just stick to their story that Hicks was driving because the police could not prove otherwise.

Torgrimson was ultimately arrested and charged with driving while under the influence of alcohol. Thereafter, Torgrimson moved to suppress the taped statements. The district court denied the motion. Tor-grimson waived his right to a jury trial and submitted the case on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). The district court found Torgrimson guilty of driving while under the influence. This appeal followed.

ISSUE

1. Does the surreptitious taping of statements made by one suspect to another suspect while confined in the back seat of a police vehicle violate the individuars Fourth Amendment rights?

2. Does the admission of surreptitiously taped statements made while a suspect was confined in the back seat of a police vehicle violate Minn.Stat. § 626A.04 (2000)?

ANALYSIS

1. Torgrimson contends that the district court erred by failing to suppress surreptitiously taped statements he made during a conversation with Hicks in the back seat of a police vehicle. When reviewing a pretrial order on a motion to suppress evidence where the facts are not in dispute and the district court’s decision is a question of law, this court determines as a matter of law whether the evidence needs to be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992).

Torgrimson argues that the surreptitious taping of the statements violates his Fourth Amendment rights. The Fourth Amendment to the United States Constitution and article I, section 10 of the Minnesota Constitution protect the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” These protections are for people, not places. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). To obtain Fourth Amendment protection, an individual must have an actual expectation of privacy and that expectation must be one that society is prepared to recognize as reasonable. Id. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

Whether the surreptitious taping of statements made in the back seat of a police vehicle violates the Fourth Amendment is an issue of first impression in Minnesota. Cf. State v. Edrozo, 578 N.W.2d 719, 723 n. 6 (Minn.1998) (noting, while holding that surreptitious taping in back seat of squad car was not custodial interrogation, that parties did not raise Fourth Amendment issue). Federal jurisdictions that have considered the issue, however, have concluded that such surreptitious taping does not violate a suspect’s rights. In United States v. Clark, 22 F.3d 799 (8th Cir.1994), the Eighth Circuit Court of Appeals found that society is not prepared to recognize a reasonable expectation of privacy when a person is seated in the back seat of a police vehicle:

A marked police car is owned and operated by the state for the express purpose of ferreting out crime. It is essentially the trooper’s office, and is frequently used as a temporary jail for housing and transporting arrestees and suspects. The general public has no reason to frequent the back seat of a patrol car, or to believe that it is a sanctuary for private discussions. A police car is not the kind of public place, like a phone booth where a person should be able to reasonably expect that his conversation will not be monitored. In other words, allowing police to record statements made by individuals seated inside a patrol car does not intrude upon privacy and freedom to such an extent that it could be regarded as inconsistent with the aims of a free and open society.

Id. at 801-02 (citation omitted).

Similarly, the Eleventh Circuit Court of Appeals has stated:

McKinnon argues that he exhibited a subjective expectation of privacy because he could not exit the police car, did not consent to the surreptitious recording, was out of the officers’ range for hearing his conversations, and was not under arrest. Furthermore, McKin-non argues that society is willing to recognize this subjective expectation of privacy because the government violated his rights because it did not have probable cause to conduct this secret search. Finally, McKinnon argues that the front seat of a police car is equivalent to the officer’s office, but the back seat is the office of the arrestee.
The government counters that no expectation of privacy exists in a marked police car, which is tantamount to a police officer’s office. Furthermore, the back seat of a police car is equivalent to a jail, and no reasonable expectation of privacy exists in a jail cell. Additionally, the government argues that McKinnon could hear police radio transmissions while in the back of the police car; hence, no reasonable or justifiable expectation of privacy existed.
Though we have no controlling authority in this circuit, one federal district court and several state courts have held that no reasonable expectation of privacy exists in the back seat area of a police car. * * * [W]e hold that McKinnon did not have a reasonable or justifiable expectation of privacy for conversations he held while seated in the back seat area of a police car.

United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir.1993) (citations omitted).

Most recently, the Tenth Circuit Court of Appeals has stated:

We conclude that under Title III or the Fourth Amendment, society is not prepared to recognize an expectation that communications in a patrol car, under facts presented here, are not subject to interception.
Turner argues that his expectation of privacy is reasonable because of the circumstances: he was not in custody or being threatened with arrest, and the officer deliberately represented the car as a safe haven. We are not persuaded that either consideration is controlling. A police car is an official vehicle, used here for law enforcement purposes. We agree with the Eleventh Circuit in McKinnon that whether an individual is in custody does not materially affect an expectation of privacy in a police car. Furthermore, in addition to the status of the police vehicle, the practical realities of the situation should be apparent to occupants. Patrol cars bristle with electronics, including microphones to a dispatcher, possible video recording with audio pickup, and other electronic and recording devices.

United States v. Turner, 209 F.3d 1198, 1200-01 (10th Cir.2000) (footnotes omitted) (citations omitted), cert. denied, 531 U.S. 887, 121 S.Ct. 208, 148 L.Ed.2d 146 (2000).

In addition to the federal caselaw, several state jurisdictions have spoken on the issue. See People v. Newton, 42 Cal.App.3d 292, 116 Cal.Rptr. 690, 693 (1974) (no reasonable and justifiable expectation of privacy when conversation recorded while suspects under arrest and in police custody in patrol car); People v. Palmer, 888 P.2d 348, 350-51 (Colo.Ct.App.1994) (no justifiable expectation of privacy while in back seat of police car); State v. Smith, 641 So.2d 849, 852 (Fla.1994) (no reasonable expectation of privacy in police car); State v. Timley, 25 Kan.App.2d 779, 975 P.2d 264, 268 (1998) (no reasonable expectation of privacy in statements made to companion while both seated in police car); State v. Hussey, 469 So.2d 346, 350-51 (La.Ct.App.1985) (no reasonable expectation of privacy in back seat of police car after vehicle stopped on DWI suspicion); People v. Marland, 135 Mich.App. 297, 355 N.W.2d 378, 383-84 (1984) (surreptitious tape recording of conversation while seated in police car admissible); State v. Lucero, 96 N.M. 126, 628 P.2d 696, 698 (Ct.App.1981) (person confined in police vehicle has no reasonable expectation that conversation will be private); K.F. v. State, 797 P.2d 1006, 1007-08 (Okla.Crim.App.1990) (no reasonable expectation of privacy in police vehicle); State v. Wischnofske, 129 Or.App. 231, 878 P.2d 1130, 1134 (1994) (society not prepared to recognize reasonable expectation of privacy regarding statements made while seated inside patrol car); State v. Ramirez, 535 N.W.2d 847, 850 (S.D.1995) (suspect had no objective reason to expect his conversation with another while both were in custody in back seat of patrol car would be afforded reasonable expectation of privacy).

Torgrimson argues that he had a subjective expectation of privacy while in the squad car. Even if he did have this personal expectation, the controlling issue is whether society is prepared to accept the expectation as reasonable. Torgrimson cites Katz in support of his argument that society will accept his expectation. Unlike the facts here, however, Katz involved surreptitious electronic recording of a suspect’s conversations while he talked on the telephone in a public telephone booth. Katz, 389 U.S. at 348, 88 S.Ct. at 509. The United States Supreme Court stated:

Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The .petitioner has strenuously argued that the booth was a “constitutionally protected area.” The Government has maintained with equal vigor that it was not. But this effort to decide whether or not a given “area,” viewed in the abstract, is “constitutionally protected” deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

Id. at 351-52, 88 S.Ct. at 511-12 (citations omitted). Because Katz involved the use of a public telephone booth, as opposed to a government-owned police vehicle used for police business, Katz is clearly distinguishable from the case before us.

We find persuasive the case law from the jurisdictions that have previously decided this issue. After taking careful note that the Fourth Amendment protects people and not places, we are not prepared to accept the proposition that there is a reasonable expectation of privacy inside a police vehicle. A phone booth is fully accessible to the public as a place to engage in private conversations. A police vehicle, however, is not freely accessible. It is owned and operated by the state and/or the local government. It is used for the purpose of responding to and preventing crime. For all practical purposes, the vehicle serves as the police officer’s office. Further, in some instances, the back seat of the vehicle can act as the equivalent of a temporary jail cell. We conclude that the surreptitious taping of conversations made inside a police vehicle does not violate the Fourth Amendment. The district court did not err by failing to suppress the statements.

2. Torgrimson also contends that the district court’s failure to suppress the surreptitiously taped statements violated Minn.Stat. § 626A.04 (2000). The statute provides:

Whenever any wire, oral, or electronic communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court or grand jury if the disclosure of that information would be in violation of this chapter.

Minn.Stat. § 626A.04. Oral communication is defined as follows:

“Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but the term does not include any electronic communication.

Minn.Stat. § 626A.01, subd. 4 (2000).

Based on this language, the failure to suppress the statements would violate the statute only if Torgrimson had a justified expectation of privacy. For the same reasons discussed regarding the Fourth Amendment issue, Torgrimson was not justified in expecting privacy while in the back seat of a police vehicle.

DECISION

The surreptitious taping of statements made while in the back seat of a police vehicle does not infringe on any reasonable expectation of privacy and therefore does not violate an individual’s Fourth Amendment rights. Also, because an expectation of privacy is not justified in such circumstances, the failure to suppress the surreptitiously taped statements does not violate Minn.Stat. § 626A.04 (2000). The district court did not err in its pretrial evidentiary ruling.

Affirmed.