author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Myron Joseph BUSSE, Jr., Appellant.
    No. C1-00-481.
    Court of Appeals of Minnesota.
    Sept. 5, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Kip O. Fontaine, Clearwater County Attorney, Jeanine R. Brand, Assistant County Attorney, Bagley, MN (for respondent).
    Kevin Miller, Zenas Baer & Associates, Hawley, MN (for appellant).
    Considered and decided by SCHUMACHER, Presiding Judge, LANSING, Judge, and KLAPHAKE, Judge.
   OPINION

LANSING, Judge.

Myron Busse, an enrolled member of the White Earth Band of Chippewa Indians, appeals from conviction for driving after cancellation as inimical to public safety in violation of MinmStat. § 171.24, subd. 5 (Supp.1999). Busse argues that the state did not have subject-matter jurisdiction over the offense, which took place on the White Earth Reservation. We agree and reverse.

FACTS

Myron Busse, an enrolled member of the White Earth Band of Chippewa Indians, was stopped by police while driving a vehicle on the White Earth Reservation in December 1999. The state charged Busse with driving after cancellation as inimical to public safety in violation of Minn.Stat. § 171.24, subd. 5 (Supp.1999). For purposes of the omnibus hearing, Busse and the state stipulated to the facts, and Busse moved to dismiss the charge for lack of subject-matter jurisdiction. The district court denied Busse’s motion to dismiss. Busse entered a guilty plea under the procedure outlined in State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980), and now appeals the district court’s determination that it had jurisdiction over the charged offense.

ISSUE

Does the district court have subject-matter jurisdiction over a charge of driving after cancellation as inimical to public safety under Minn.Stat. § 171.24, subd. 5 (Supp.1999), when the offense was committed on a reservation by a tribal member?

ANALYSIS

Subject-matter jurisdiction presents a question of law, which this court reviews de novo. State v. No. CO-99-559, 2000 WL 1201847, at *2 (Minn. Aug.24, 2000). Although Indian tribes retain attributes of sovereignty, states may apply their laws to tribal members on reservations if there is Congressional authorization to do so. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987); State v. Stone, 572 N.W.2d 725, 728 (Minn.1997). Congress, through Public Law 280, authorized the states to enforce their criminal laws against tribal members for conduct occurring on reservations. See Cabazon, 480 U.S. at 207-08 & n. 6, 107 S.Ct. at 1087 & n. 6; Stone, 572 N.W.2d at 728-29.

In applying Public Law 280, the Supreme Court has focused on determining whether an offense is criminal or civil/regulatory in nature. See Cabazon, 480 U.S. at 208-10, 107 S.Ct. at 1087-89. Neither a law’s placement in the criminal code nor a law’s imposition of criminal penalties is dispositive of this analysis. Id. at 211, 107 S.Ct. at 1089. Rather, the Supreme Court has instructed that the proper inquiry focuses on whether the law is intended to prohibit conduct or merely to regulate otherwise permissible conduct. Id. at 209, 107 S.Ct. at 1088.

In State v. Stone, the Minnesota Supreme Court adopted a two-part test for determining whether a law is criminal or civil/regulatory. 572 N.W.2d at 730. Under the Stone test, the court first determines what conduct is the proper focus of the analysis. Id. The proper focus is the broad conduct at issue “unless the narrow conduct presents substantially different or heightened public policy concerns.”' Id.

.After identification of the focus, the analysis turns to whether the focal conduct is criminal or civil/regulatory in nature. Id. Conduct that is generally prohibited is criminal, and conduct that is generally permitted but subject to regulation is civil/regulatory. Id. In close cases, the court should determine whether the' conduct at issue violates this state’s public policy. Id. In Stone, the court enumerated four factors for determining whether a law violates public policy:

1) the extent to which the activity directly threatens physical harm to persons or property or invades the rights of others; (2) the extent to which the law allows for exceptions and exemptions; (3) the blameworthiness of the actor; [and] (4) the nature and severity of the potential penalties for a violation of the law.

Id. This list of factors is not exhaustive and no single factor is determinative. Id.

Applying the two-part test, the Stone court found that none of the following driving violations are criminal: (1) Failure to provide motor vehicle insurance (Minn. Stat. § 169.797 (1996)); (2) No proof of insurance (Minn.Stat. § 169.791 (1996)); (3) Driving with an expired registration (Minn.Stat. § 168.09 (1996)); (4) Driving without a license (Minn.Stat. § 171.02 (1996)); (5) Driving with an expired license (Minn.Stat. § 171.27 (1996)); (6) Speeding (Minn.Stat. § 169.14 (1996)); (7) Driving with no seat belt (Minn.Stat. § 169.686 (1996)); and (8) Failure to have a child restraint seat (Minn.Stat. § 169.685, subd. 5 (1996)). Id. at 730-31. The court found that the proper focus was on the broad conduct of driving, which is generally permissible. Id. The court thus concluded that because driving is generally permitted, the violations at issue were not criminal. Id. at 731.

While the Stone court found the broad conduct of driving the proper focus, it recognized that the laws against drinking and driving and reckless or careless. driving might raise “substantially different or heightened public policy concerns.” Id. And, in a companion case, the court -held that Minnesota’s underage-drinking laws do present heightened public policy concerns different from those raised by laws that merely regulate otherwise permissible consumption and sale of alcohol, and thus that the underage-drinking laws are criminal. State v. Robinson, 572 N.W.2d 720, 724 (Minn.1997).

Applying the Stone test, this court in State v. Zornes, 584 N.W.2d 7 (Minn.App.1998), found that a charge for driving after cancellation as inimical to public safety was criminal and therefore the state had jurisdiction to enforce Minn.Stat. § 171.24, subd. 5 (Supp.1997), against a tribal member who violated the statute on a reservation. Id. at 10-11. The Zones court reasoned that the grounds provided for cancellation in the regulations promulgated under Minn.Stat. § 171.24, subd. 5, encompassed only alcohol and certain controlled substance violations. Id. at 10 (citing Minn. R. 7503.1300 (1997)). The court concluded that the public policy concerns surrounding drinking and driving justified focusing on the narrower, prohibited conduct of driving after cancellation as inimical to public safety. Id. at 11. The court thus found the focal conduct was criminal and that the state had jurisdiction to enforce the law. Id.

At least one federal circuit court of appeals has approved the line of reasoning followed in Zones. The Seventh Circuit affirmed a Wisconsin court’s conclusion that a charge for driving after revocation for DWI was criminal, and thus that the courts had jurisdiction over the charge. See Germaine v. Circuit Court for Vilas County (St. Germaine II), 938 F.2d 75, 77 (7th Cir.1991); see also State v. St. Germaine (St. Germaine I), 150 Wis.2d 171, 442 N.W.2d 53, 55 (Wis.Ct.App.1989).

Busse does not dispute that this court in Zones found criminal and thereby enforceable the very section of the Minnesota Statutes under which he was charged. Instead he argues that the Minnesota Supreme Court overruled Zones in its most recent tribal-jurisdiction case, State v. Johnson, 598 N.W.2d 680 (Minn.1999).

In Johnson, the supreme court held that driving after revocation for failure to produce proof of insurance was a civil/regulatory offense and consequently not within the state’s jurisdiction to enforce on a reservation. Id. at 684. The court first reaffirmed that driving without a valid license is a civil/regulatory violation and then concluded that consistency required a conclusion that driving after revocation is a civil/regulatory violation as well:

We would hardly be consistent to now conclude that even though a tribal member is not required to have a driver’s license at all while driving on a tribal reservation, driving after revocation of a license should be an offense that rises to the level of a “heightened public policy” concern.

Id. (quoting Stone, 572 N.W.2d at 730).

Read strictly for its holding, Johnson does not overturn Zones. The supreme court in Johnson addressed driving after a license revocation that was triggered by an underlying civil/regulatory offense. See Stone, 572 N.W.2d at 730-31 (holding that failure to produce proof of insurance is civil/regulatory offense). Thus, addressing either the broad conduct of driving or the narrower conduct of driving after revocation for failure to produce proof of insurance, the violation in Johnson was civil/regulatory. These facts distinguish Johnson from Zones, which involved a cancellation based on an underlying offense that was criminal.

But, the supreme court in Johnson also reasoned that driving after revocation should be considered independently of the predicate prior offense:

Obviously the prior offense carries its own sanction based upon the severity of the conduct. As each offense is triggered by different and unrelated conduct, the issue might then arise whether fairness should dictate that the nature of the subsequent offense, for purposes of the Stone analysis, not be measured by the nature of the prior offense, because if it were the offender could be subject to being sanctioned twice for the prior offense.

598 N.W.2d at 684.

After careful review, we conclude that Johnson effectively overrules the Zones holding and accordingly we hold that the district court did not have jurisdiction over a charge of driving after cancellation as inimical to public safety in violation of Minn.Stat. § 171.24, subd. 5. The Zones analysis and holding fundamentally rest on consideration of the offense that triggered the cancellation, which the supreme court in Johnson found to be inappropriate. Although the court’s analysis in Johnson arguably is dicta, we accord it considerable weight because it is an expression of the court’s opinion. In re Estate of Bush, 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974). Further, while the Seventh Circuit in St. Germaine II indicates that a state’s laws against driving after cancellation because of DWI charges may be criminal, it does not dictate that result. We conclude that the Minnesota Supreme Court considered and rejected the St. Germaine analysis.

Under the Johnson analysis, the driving after cancellation at issue in Zomes and in this case is no different from the driving after revocation at issue in Johnson. Thus, we conclude that following Johnson, the district courts do not have jurisdiction over charges of driving after cancellation as inimical to public safety in violation of Minn.Stat. § 171.24, subd. 5.

We emphasize that this case involves only driving after cancellation and not a new incident of driving while under the influence of alcohol (DWI). Our holding does not preclude the state from enforcing its DWI laws when a tribal member on a reservation is driving after cancellation as inimical to public safety, and also driving under the influence. See State v. Couture, 587 N.W.2d 849, 854 (Minn.App.1999) (holding that state has jurisdiction to enforce DWI laws on reservation), review denied (Minn. Apr. 20, 1999); Bray v. Commissioner of Pub. Safety, 555 N.W.2d 757, 761 (Minn.App.1996) (holding that state has jurisdiction to enforce implied consent laws on reservation).

DECISION

Because the district court did not have subject-matter jurisdiction over the charged offense, we reverse the court’s order and remand for entry of judgment dismissing the charge against Busse.

Reversed and remanded.


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    Wesley Ross MULLINS, (C6-00-170), Ronaldo Ligons, (C2-00-358), Michael Williams, (C8-00-378), Daniel Hendrickson, (C9-00-390), Appellants, v. Susan CHURCHILL, et al., Respondents.
    Nos. C6-00-170, C2-00-358, C8-00-378 and C9-00-390.
    Court of Appeals of Minnesota.
    Sept. 5, 2000.

      Wesley R. Mullins, Stillwater, MN (pro se appellant).
    Teresa Nelson, Minnesota Civil Liberties Union, Minneapolis, MN; and James Manahan, Mankato, MN; and Peter Erlin-der, pro hac vice, William Mitchell College of Law, St. Paul, MN (for appellant Ronal-do Ligons).
    Michael Williams, Stillwater, MN (pro se appellant).
    Daniel Hendrickson, Stillwater, MN (pro se appellant).
    Mike Hatch, Attorney General, Jennifer K. Park, Assistant Attorney General, St. Paul, MN (for respondent).
    Considered and decided by WILLIS, Presiding Judge, RANDALL, Judge, and PARKER, Judge.

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

   OPINION

RANDALL, Judge.

Appellants, who are inmates at state correctional facilities, challenge summary judgment granted to prison officials and employees in consolidated actions in which three of four appellants alleged prison personnel violated Minn.Stat. § 481.10 (1998), which states that inmates must be afforded “reasonable telephone access” to an attorney. The fourth appellant, who is also a prison inmate, raised a negligence claim against prison personnel and asserts on appeal that the district court failed to address his claim. We affirm.

FACTS

Appellants Wesley Ross Mullins, Ronal-do Ligons, and Daniel Hendrickson, who are all inmates in state correctional facilities, filed conciliation court actions, asserting that prison officials and employees violated Minn.Stat. § 481.10 (1998) by failing to grant appellants’ requests for free, unmonitored telephone calls to their attorneys. Each of these appellants sought $100 per denial, as prescribed by statute. Ligons was awarded $100 in conciliation court, but this judgment was vacated when the case was removed to district court. Appellant Michael Williams, who is also a prison inmate, asserted negligence by prison personnel, who denied his requests to make telephone calls for legal matters, and sought $7,500 in damages. All appellants’ actions were later moved to district court and consolidated.

The district court awarded respondents summary judgment, concluding appellants were not entitled to civil damages described in the statute because respondents had not been criminally convicted for violating Minn.Stat. § 481.10. The district court further determined that appellants were provided reasonable telephone access as required by the statute. Appellants filed separate notices of appeal, and this court consolidated their appeals.

ISSUES

1.Did the district court erroneously interpret Minn.Stat. § 481.10 (1998) when it concluded that a civil recovery is not available under the statute absent a prior criminal conviction under the statute?

2. Do the Department of Corrections and correctional facility policies violate Minn.Stat. § 481.10?

3. Did the district court err by failing to specifically address appellant Williams’s negligence claim?

ANALYSIS

On appeal from summary judgment, the appellate court determines whether genuine issues of material fact exist and whether the district court erroneously applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The reviewing court “must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted).

I.

Ligons first asserts that the district court erroneously interpreted Minn.Stat. § 481.10 (1998) when it concluded that a civil recovery is not available under the statute absent a prior criminal conviction under the statute. On this issue, we agree with Ligons.

Statutory interpretation is a legal determination reviewed de novo on appeal. State v. Loge, 608 N.W.2d 152, 155 (Minn. 2000). The statute at issue states in relevant part:

At all times through the period of custody, whether or not the person restrained has been charged, tried, convicted, or is serving an executed sentence, reasonable telephone access to the attorney shall be provided to the person restrained at no charge to the attorney or to the person restrained. Every officer or person who shall violate any provision of this section shall be guilty of a misdemeanor and, in addition to the punishment prescribed therefor shall forfeit $100 to the person aggrieved, to be recovered in a civil action.

Minn.Stat. § 481.10 (1998).

When a statute is unambiguous, its plain meaning is applied. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996). If a statute is ambiguous, the court must ascertain “the probable legislative intent and give the statute a construction that is consistent with that intent.” Tuma v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986) (citation omitted).

The district court concluded that, under this statute, similar to criminal-forfeiture statutes, a civil recovery cannot be had until there has been a criminal conviction. The district court compared Minn.Stat. § 481.10 with the following forfeiture statutes: Minn.Stat. §§ 609.762, subd. 4, 609.5312, subd. 4, and 609.905, subd. 1 (1998). The first of these, Minn.Stat. § 609.762, subd. 4, involves the forfeiture of gambling devices, prizes, and proceeds and describes the procedure for obtaining such property. It states, “Property must be forfeited after a conviction for a gambling violation * ⅜ * .” Id. (emphasis added). Minn.Stat. § 609.5312, subd. 4, provides that a motor vehicle used to flee a police officer, thereby endangering life or property, is subject to forfeiture “only if the offense is established by proof of a criminal conviction for the offense.” (Emphasis added.) Finally, Minn.Stat. § 609.905, subd. 1, states:

When a person is convicted of [racketeering] the court may order the person to forfeit to the prosecuting authority any real or personal property subject to forfeiture under this section.

(Emphasis added.) The district court determined that although the language in Minn.Stat. § 481.10 is different from the language contained in the cited forfeiture statutes, the language in Minn.Stat. § 481.10 “has the same thrust.”

Unlike the criminal-forfeiture statutes cited by the district court, the plain language of Minn.Stat. § 481.10 does not state that a criminal conviction is a prerequisite to a civil penalty. Further, the intent of Minn.Stat. § 481.10 is very different from the intent of the forfeiture statutes cited by the district court. The forfeiture statutes pertain to the government’s ability to confiscate property used to support criminal activity. Here, the statute provides a separate civil remedy for the person aggrieved by a prison officer or employee’s actions. The statute does not state that the prison official must first be convicted of a misdemeanor for violating the statute. Instead, it prescribes both criminal and civil remedies; neither of which is a prerequisite to the other.

Additionally, as Ligons observes, the relevant language in Minn.Stat. § 481.10 is virtually identical to language in the attorney-misconduct statute, Minn.Stat. § 481.071 (1998), which states:

Every attorney * * * who shall be guilty of any deceit or collusion, or shall consent thereto, with intent to deceive the court or any party, or who shall delay the attorney’s client’s suit with a view to the attorney’s own gain, shall be guilty of a misdemeanor and, in addition to the punishment prescribed by laxo therefor, shall forfeit to the party injured treble damages, to be recovered in a civil action.

(Emphasis added.) This language is also identical to the language in Minn.Stat. § 481.07 (1998), which states:

An attorney who, with intent to deceive a court or a party to an action or judicial proceeding, is guilty of or consents to any deceit or collusion, shall be guilty of a misdemeanor; and, in addition to the punishment prescribed therefor, the attorney shall be liable to the party injured in treble damages.

(Emphasis added.) Neither this court nor the supreme court has ever stated that a criminal conviction is required before permitting the recovery of treble damages under Minn.Stat. §§ 481.07, .071. Cf. Admiral Merchants Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 268 (Minn.1992) (stating whether claimant is entitled to treble damages under Minn. Stat. §§ 481.07, .071 may be submitted to jury if court finds some credible evidence of intent to deceive).

Therefore, we conclude that the district court erred when it determined that a civil recovery is not available under Minn.Stat. § 481.10 absent a criminal conviction.

II.

Appellants assert that summary judgment was improper because judging reasonableness under Minn.Stat. § 481.10 is a factual determination. The district court reviewed the Department of Corrections (DOC) and facility policies and determined that these policies provided reasonable access.

Minn.Stat. § 481.10 states that “reasonable telephone access to the attorney shall be provided.” We note that reasonableness tests are often termed questions of fact. See In re Estate of Van Den Boom, 590 N.W.2d 350, 354 (Minn.App.1999) (observing reasonableness of attorney fees is question of fact), review denied (Minn. May 26, 1999); Burbach v. Armstrong Rigging & Erecting, Inc., 560 N.W.2d 107, 110 (Minn.App.1997) (stating reasonableness of Miller-Shugart settlement is question of fact), review denied (Minn. June 11, 1997). However, reasonableness can be determined as a matter of law where underlying facts are not in dispute. See Baker v. Chaplin, 517 N.W.2d 911, 917 (Minn.1994) (stating reasonableness of officer’s use of force is legal question but question could not be resolved until disputed underlying facts and circumstances resolved); Sackett v. Storm, 480 N.W.2d 377, 379, 382 (Minn.App.1992) (recognizing whether property owner intended to dedicate land and whether public accepted dedication are generally fact questions but upholding summary judgment where evidence of owner’s intent and public acceptance was undisputed), review denied (Minn. Mar. 26, 1992); cf. State v. Olson, 436 N.W.2d 92, 94 (Minn.1989) (stating, in considering whether police had probable cause to make arrest, reasonableness of officer’s actions is reviewed independently on appeal), aff'd, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

Here, determining the reasonableness of DOC and facility policies did not require the resolution of disputed underlying factual issues. The district court did not err by deciding this issue, on summary judgment. Thus, we review its legal conclusion on the reasonableness of DOC and facility policies.

The relevant DOC policy states:

When legal business cannot be accomplished by U.S. mail, an offender may request an approved telephone contact with an attorney. Designated staff will review the call for approval. Staff will place the call and verify that the requested party is available and willing to accept the call. Telephones for approved legal calls will not be subject to any monitoring activity. The facility will not charge offenders for approved legal calls.

Minnesota Dep’t of Corrections, Div. Directive 302.210, § B(4) (July 1, 1999). The Stillwater Correctional Facility’s policy on legal telephone calls provides:

In situations where phone contact is necessary, the inmate shall send a kite to his Case Manager 24 hours in advance of the requested call. The request must include the name of the attorney, the phone number and a specific explanation of why this communication cannot be handled through U.S. mail. Approval of requests are at the discretion of the inmate’s Case Manager.

Minnesota Correctional Facility-Stillwater, Policy T-1, § IV(B) (Dec. 31, 1998). The Oak Park Heights policy states:

An inmate’s primary means for conducting legal business [is] the U.S. Mail. Occasionally, an inmate may require a telephone contact with his attorney. In situation where phone contact is required, the inmate shall send a request via the inmate kite system to his Case Manager by 8:00 a.m. the day the call is desired. The request must include the name of the attorney, the telephone number, time, and a specific explanation of why this communication cannot be handled through the other means.

Minnesota Correctional Facility-Oak Park Heights, Policy T-1 at 4 (Apr.1998).

Ligons contends that Minn.Stat. § 481.10 precludes DOC and prison personnel from exercising any discretion in permitting prisoners to make calls to their attorneys. He asserts that because the statute requires prison personnel to provide prisoners with private, in-person consultations with attorneys, absent imminent danger of escape, and because the statute also mandates that prison personnel must notify attorneys of prisoners’ request for consultation, telephone access should also be mandatory. What Ligons fails to note is that the statute specifically allows prison personnel to limit inmate calls to “reasonable telephone access.” The statute, by definition, allows for discretion.

The facility policies do not require inmates to provide details of the content of the calls they request. Instead, the policies require only that an inmate provide his attorney’s name and telephone number and an explanation of why the inmate cannot contact his attorney by mail. Requiring inmates to list their attorney’s name and telephone number on their request allows case managers to confirm that the call is really being made to an attorney and permits case managers to make arrangements with the attorney for the call. Requiring inmates to give details about why they cannot communicate through the mail is not unreasonable. It simply requires them to provide details such as upcoming court dates or filing deadlines. Those are matters of public record and do not interfere with an inmate’s right to talk confidentially to an attorney. This policy is a reasonable attempt to limit attorney calls to those that are really necessary. DOC points out that they need reasonable control over outside telephone calls. Otherwise, case managers would be inundated with requests, and would end up spending an inordinate amount of their time arranging telephone calls. We conclude, as the district court did, that DOC and its facility policies do not violate the reasonableness requirement of Minn.Stat. § 481.10.

Ligons asserts that the policies violate inmates’ Sixth-Amendment right to confidential communications with counsel and their right to be free from compelled speech as provided by the First and Fifth Amendments and the Due Process Clause. Ligons did not raise these issues to the district court. Thus, we need not address these issues on appeal. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (stating appellate court generally will not consider issues not argued and decided below). The district court did note that some reasonable restriction on inmates’ ability to access counsel by telephone does not deny inmates “their constitutional right to access the courts and counsel.” There is support for this conclusion. See Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir.1992) (stating “[although prisoners have a constitutional right of meaningful access to the courts, prisoners do not have a right to any particular means of access, including unlimited telephone use” (citations omitted)); Ingalls v. Florio, 968 F.Supp. 193, 203-04 (D.N.J.1997) (recognizing limited access to telephone calls is not constitutional violation as long as inmates can communicate with their counsel in writing or in person).

III.

The district court observed that Williams sought negligence damages rather than damages under Minn.Stat. § 481.10, but the district court did not distinguish between Williams’s negligence claim and the other appellants’ statutory claims in its conclusions.

In a negligence action, the plaintiff must demonstrate that (a) “the defendant has a legal duty to the plaintiff to take some action”; (b) the defendant breached that duty; (c) the breach was the proximate cause of harm to the plaintiff; and (d) the plaintiff suffered damage. Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn.1999) (citation omitted). Absent a legal duty, a negligence claim fails. Id. Generally, the existence of a legal duty is a question of law. Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn.1995).

Williams states that respondents “owed him a duty” to permit him to make calls to his attorney and the courts. As a general proposition, prisons and prison officials have a duty to protect inmates. See id., 539 N.W.2d 789, 792 (Minn.1995) (stating special relationship giving rise to duty to protect generally exists where “persons * * * have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection” (citation omitted)). Here, however, Williams is not asserting a breach of any duty to protect but is instead asserting a breach of a duty to provide telephone calls. We find no such duty in common law; a basis for a negligence claim cannot be read into Minn.Stat. § 481.10. The issue is not “telephone calls” per se, but rather, reasonable access to telephones, and we have affirmed the district court on that issue. Thus, although the district court failed to specifically address Williams’s negligence claim in its decision, respondents were entitled to summary judgment against Williams as a matter of law. See Myers by Myers v. Price, 463 N.W.2d 773, 775 (Minn.App.1990) (stating appellate court will affirm summary judgment if it can be sustained on any grounds), review denied (Minn. Feb. 4, 1991).

DECISION

The district court erred in concluding that Minn.Stat. § 481.10 (1998) requires a criminal conviction before a civil remedy may be sought. The district court did not err in concluding, as a matter of law, that DOC and correctional facility policies regulating telephone calls for legal purposes do not violate the reasonableness requirement within Minn.Stat. § 481.10. Further, although the district court did not specifically address Williams’s negligence claim, his claim fails as a matter of law. The district court properly granted summary judgment to respondents.

Affirmed.

      . Neither Mullins nor Hendrickson addresses this issue on appeal. Williams did not make a claim under Minn.Stat. § 481.10 (1998) and, therefore, does not address the statute's construction on appeal.

      . This section was amended during the 2000 legislative session. The section now provides that inmates in state correctional facilities shall have telephone access to legal counsel "following the request of the person restrained and in accordance with policies' adopted by the institution that meet constitutional requirements.” 2000 Minn. Laws ch. 408. The amended section also states that the section's prescribed penalties are inapplicable to officers or employees at state correctional facilities. Id. The parties agree that because this action commenced before the effective date of the amendments, the amendments do not apply to this case.

      . Ligons, Hendrickson, and Mullins all address this issue in some manner.

      . Ligons asserts that the DOC could install pre-programmed phone systems in its facilities, which would eliminate potential abuse or the need for institutional oversight. Determining the type of technology DOC "should install'' in its facilities is beyond the statute and beyond the scope of this court’s review.


author: HARTEN, Judge RANDALL, Judge

text:
    STATE of Minnesota, Respondent, v. Robert J. BAUMANN, Appellant.
    No. C3-99-2161.
    Court of Appeals of Minnesota.
    Sept. 12, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Aden Hofstedt, Coon Rapids City Attorney, Tammi A Fredrickson, Assistant City Attorney, Coon Rapids, MN (for respondent).
    Ann N. Cathcart, Special Assistant State Public Defender, Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, MN (for appellant).
    Considered and decided by RANDALL, Presiding Judge, HARTEN Judge, and HALBROOKS, Judge.
   OPINION

HARTEN, Judge

Appellant Robert Baumann challenges his DWI conviction, asserting that the district court erred in holding constitutional the stop of his vehicle based on the presence of special series license plates and the warrantless entry into his garage. He also challenges the constitutionality of Minn. Stat. § 168.0422 (1998) (permitting stops of vehicles bearing special series license plates without reasonable, articulable suspicion). We affirm.

FACTS

On March 19, 1999, at 7:10 p.m., Coon Rapids Police Officer J. Urquhart overheard a radio transmission from a sheriffs deputy regarding the sighting of a white Chevrolet Corsica with plates bearing the letters “WX.” According to Urquhart, the deputy stated that the “registered owner had had warrants and was canceled IPS [mimical to public safety].” Urquhart stated that he did not recall hearing the car’s license plate number or the driver’s gender.

Later, that night, at 1:41 a.m., Urquhart was on patrol approximately one mile from the area described in the earlier radio transmission. He observed a white Chevrolet Corsica with special license plates beginning with “WX.” Urquhart knew that such plates were issued due to past alcohol-related driving offenses.

Urquhart followed the vehicle and entered its license plate information into the patrol car’s onboard computer. As he waited for the information to come up on the computer, the vehicle turned into a townhouse driveway, and a garage door opened. Urquhart then turned and followed the vehicle into the driveway with his red squad car lights activated. As the car pulled into the garage and the garage door began to close, Urquhart exited his squad car and ran under the door. The driver, later identified as Robert Bau-mann, exited his vehicle, and Urquhart asked him for his driver’s license. Bau-mann replied that he did not have one. Urquhart then asked Baumann for some form of identification, and Baumann produced his Minnesota photo identification card.

Baumann was charged with six gross misdemeanor DWI violations: three under Minn.Stat. § 169.121 (1998), and three under Minn.Stat. § 169.129 (1998). Bau-mann stipulated to certain facts and moved to suppress the evidence and dismiss the charges based on his assertion that the police stop of his vehicle and the warrant-less entry into his garage were unconstitutional. The district court denied his motion.

Pursuant to State v. Lothenbach, 296 N.W.2d 854, 858 (Minn.1980), Baumann pleaded not guilty, stipulated to the facts, and agreed to a bench trial. He was found guilty of aggravated DWI, having an alcohol concentration of .10 or more in violation of Minn.Stat. § 169.129, subds. 1, 2(a), and the other counts against him were dismissed. He was sentenced to one year in prison, eight months of which were stayed. This appeal followed.

ISSUES

1. Was the stop of appellant’s vehicle constitutional?

2. Were appellant’s Fourth Amendment rights violated when the officer entered appellant’s garage without a warrant?

ANALYSIS

In reviewing pretrial suppression orders, the appellate court independently reviews the facts and determines, as a matter of law, whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

1. Constitutionality of the Stop

Baumann asserts that Minn.Stat. § 168.0422 (1998), which permits stops of vehicles bearing special series license plates without reasonable suspicion of a crime, is unconstitutional. Baumann argues that the officer’s stop of his vehicle was also unconstitutional.

Constitutional questions need be decided by this court only as necessary to dispose of the case presented. State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981). Because we conclude that Baumann’s conviction can be sustained on other grounds, it is unnecessary to reach the constitutionality of Minn.Stat. § 168.0422.

“[T]he factual basis required to support the stop for a routine traffic check is minimal.” State v. Johnson, 257 N.W.2d 308, 309 (Minn.1977) (quotation omitted). In order to conduct a Terry stop for limited investigatory purposes, an officer must have reasonable articulable suspicion of criminal activity. State v. Munson, 594 N.W.2d 128, 136 (Minn.1999). The stop must be

not the product of mere whim, caprice, or idle curiosity [but rather] based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

Johnson, 257 N.W.2d at 309 (quotation omitted).

State v. Pike, 551 N.W.2d 919, 922 (Minn.1996) upheld as constitutional the stop of a suspect’s vehicle based on a routine computer check of the suspect’s license plates, which indicated that the vehicle’s registered owner’s license had been revoked.

It is not unconstitutional for an officer to make a brief, investigatory, Terry-type stop of a vehicle if the officer knows that the owner of the vehicle has a revoked license so long as the officer remains unaware of any facts which would render unreasonable an assumption that the owner is driving the vehicle.

Id. Once an officer obtains information that tends to show the owner of the vehicle is not the individual driving the vehicle, however, reasonable suspicion ceases. Id.

Here, as in Pike, the officer’s stop of Baumann’s vehicle was based on more than “mere whim, caprice or idle curiosity.” Johnson, 257 N.W.2d at 309. The officer had received information earlier in his shift that a white Chevrolet Corsica with WX plates had been seen in the immediate area, and he was aware that special series plates are issued to those with a history of DWI offenses. Additionally, the officer knew that the registered owner “had had warrants” out for his or her arrest and “was canceled IPS.” Although the officer may not have been certain that the vehicle he stopped was the same vehicle seen earlier in the evening, this was a reasonable inference. The vehicle descriptions were identical, and the stopped vehicle was first observed only a mile from the reported earlier sighting. On these facts, Urquhart’s stop was supported by reasonable and articulable suspicion.

2. Warrantless Entry in Appellant’s Garage

The Fourth Amendment of the United State Constitution and Article 1, Section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures of “persons, houses, papers and effects.” In order for an arrest to be made after a warrantless entry or search of a person’s home, the state must demonstrate the existence of either (a) consent or (b) probable cause and exigent circumstances. State v. Paul, 548 N.W.2d 260, 265 (Minn.1996). It is undisputed that Baumann did not consent to Urquhart’s entry.

But Urquhart had sufficient probable cause to justify entry into Bau-mann’s garage. Probable cause is found when police demonstrate that they “reasonably could have believed that a crime was being committed by the person arrested.” Id. (quotation omitted). Urquhart was aware that (a) a vehicle matching Bau-mann’s vehicle was seen in the area earlier in the evening; (b) the driver of the vehicle seen earlier in the evening had a license which was canceled as IPS; (c) the driver “had had warrants”; and (d) Bau-mann failed to stop and closed the garage door on Urquhart despite Urquhart’s activation of his squad car’s overhead lights. Taken together, the totality of the circumstances indicates that probable cause existed at least for obstruction of legal process, a misdemeanor, under Minn.Stat. § 609.50, subd. 1 (1998).

Second, exigent circumstances in the form of “hot pursuit” were' also present in this situation. Police in hot pursuit may follow a fleeing suspect and enter into a dwelling in the absence of a warrant. State v. Koziol, 338 N.W.2d 47, 48 (Minn.1983) (citing United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. at 2406, 2410, 49 L.Ed.2d 300 (1976)). Further, “a person may not defeat a warrantless arrest which has been set in motion in public by entering into his dwelling.” Id. Although Urquhart followed for only a short distance with his squad car lights activated, the “hot pursuit” doctrine applies regardless of whether officers conduct “a high speed chase of the suspect* or merely approach a suspect who immediately retreats into a house.” Paul, 548. N.W.2d at 265.

DECISION

The district court did not err by denying Baumann’s motion to suppress. The police stop of Baumann’s vehicle was based on reasonable, articulable suspicion of criminal activity given the totality of the circumstances. When Baumann entered his garage, the police officer was engaged in “hot pursuit” and had probable cause to believe that Baumann had committed a crime. The officer’s entry into the garage was not unconstitutional.

Affirmed.

RANDALL, Judge

(concurring specially).

I concur in the result. I agree with the majority that there is enough in the record to affirm the district court without having to reach the constitutional challenge to Minn.Stat. § 168.0422 (1998). However, the constitutionality of that statute as a major issue does not “lurk beneath the surface,” but is right there on the surface and should be addressed.

The Commissioner of Public Safety is authorized to issue special-series license plates (“WX or W^Y”) to designate vehicles that have had their regular registration plates impounded for driving violations by the driver and/or owner. Minn.Stat. §§ 168.041, subd. 6(a), .042, subd. 12 (1998). The commissioner is permitted to issue special-series plates if (a) the violator or owner has a limited driver’s license; (b) the owner is not the violator and the owner has a valid license; or (c) a member of the owner’s household has a valid license. Id. MinmStat. § 168.041, subd. 6(a), also permits the commissioner to issue special-series plates if a member of the violator’s household has a valid license, and Minn. Stat. § 168.042, subd. 12, permits issuance if the violator has a qualified licensed driver.

As the majority correctly notes, in State v. Greyeagle, 541 N.W.2d 326, 330 (Minn. App.1995), we held that officers could not lawfully stop vehicles based solely on their observation of special-series license plates on the vehicle. In Greyeagle, we found no articulable suspicion of criminal activity, just a stop based on the presence of the marked license plate. Id. at 328.

Following this court’s ruling in Greyeagle, the Minnesota legislature passed Minn.Stat. § 168.0422.1997 Minn. Laws 1st Spec. Sess. ch. 2, § 20. The new statute provided for the previously lacking suspi-cionless stops, based solely on the presence of special series license plates. Minn. Stat. § 168.0422 provides:

A peace officer who observes the operation of a motor vehicle within this state bearing special series registration issued under section 168.041, subd. 6 * * * may stop the vehicle for the purpose of determining whether the driver is operating the vehicle lawfully under a valid driver’s license.

Minn.Stat. § 168.0422 is a legislative attempt to specifically overrule the holding in Greyeagle that the mere presence of special plates does not, by itself and without more, constitute articulable suspicion that the driver is engaged in criminal activity. That ruling in Greyeagle is self-evident. A car with special plates is legally licensed to be on the highways. That is why the Commissioner of Public Safety issues them. The commissioner is not in the habit of issuing license plates, which cause a driver to be in violation of the law the second the driver puts the car on the road.

I recognize legislative concern over “career criminals.” Special-series plates (commonly known as WX/WY plates) are only issued when the driver/owner has compiled a serious enough driving record to have his regular plates impounded. But “concern over public safety” does not override the Fourth Amendment of the Bill of Rights or Article I, Section 10 of the Minnesota Constitution.

The Minnesota Supreme Court ruled on a similar issue (public policy versus the state constitution) in Ascher v. Commissioner of Pub. Safety, 519 N.W.2d 183 (Minn.1994). In Ascher, the state used checkpoints/road blocks in a target zone where there were law enforcement concerns about alcohol-impaired car drivers. Id. at 184. The state had to concede that the officers had absolutely no idea that a stopped motorist was driving while alcohol impaired. They might discover “alcohol impairment” after the suspicionless stop, but Minnesota’s Constitution does not authorize “suspicionless stops” at sobriety checkpoints. See id. at 187 (concluding Minnesota Constitution prohibits suspi-cionless stops at sobriety checkpoints despite U.S. Supreme Court’s determination in Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 456, 110 S.Ct. 2481, 2488, 110 L.Ed.2d 412 (1990), that U.S. Constitution does not prohibit such checkpoints).

It is settled that a person’s prior record is never by itself sufficient to provide reasonable suspicion justifying a Terry stop. See United States v. Sandoval, 29 F.3d 537, 542 (10th Cir.1994) (stating that no case found suggesting contrary). It is equally clear that a legislative body cannot supersede judicial decisions interpreting and applying a constitution. See Dickerson v. United States, — U.S. ——,-, 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)).

Stops of motorists must be based on individualized suspicion and must not be discriminatory. Ascher, 519 N.W.2d at 186. In this case, the officer had absolutely no idea when he saw appellant’s “WX” plates that a person driving the car did not have a legal license. He would only know that if he made a suspicionless stop and inquired. The same is true of all vehicles moving on the highways. We know a certain percentage of all cars on Minnesota roads, at any given time, are being driven by people without valid licenses and/or without insurance. But an officer does not know whether a particular driver is violating these laws unless the officer makes a stop and asks the driver for proof of license and insurance. If the officer makes the stop without a valid articulable suspicion of criminal activity, the illegal stop cannot be made lawful, after the fact, by a determination that the driver does not have insurance or a valid license.

Absent a duly authorized constitutional amendment, which has not yet happened to the Fourth Amendment of the Bill of Rights or Article 1, Section 10 of the Minnesota Constitution, a state legislature is incapable of overriding a constitutional interpretation made by a state court. In the case of federal law, the U.S. Congress cannot override constitutional interpretation by federal courts.

This constitutional evidentiary issue presented itself in Dickerson. 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.”

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.

Dickerson, — U.S. at-, 120 S.Ct. at 2332 (citations omitted).

The U.S. Supreme Court realized that Congress has legislative powers but pointed out the limitations on those legislative powers. Dickerson stated:

Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution.
But Congress may not legislatively supersede our decisions interpreting and applying the Constitution.

Id. (citations omitted). The majority closed by stating:

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.

Id. at 2336-37 (footnote omitted).

The limitation on Congress to legislatively supersede the Bill of Rights has its counterpart in the limitation on a state legislature to legislatively supersede the Bill of Rights or its own state constitution. In this case, Minnesota’s relevant constitutional guarantee against improper stops and seizures is in the Minnesota Constitution, Article 1, Section 10.

Minn.Stat. § 168.0422 is a statute authorizing a “mark” or a “brand” to be placed on a citizen’s vehicle license plate. That mark labels that vehicle’s driver as one who can be stopped, not for articulable suspicion of criminal activities, but rather because of the “mark.” That is impermissible. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981) (recognizing investigatory stop múst be justified by objective manifestation that person stopped is or is about to be, engaged in criminal activity).

You might as well make the mark a pink triangle or some other identifying object. The results are exactly the same. A citizen is now marked because “the collective wisdom of the government” designates that citizen a part of a class of citizens, the members of which, because of perceived prior injurious conduct, have now been ruled to be less than full citizens. As less than full citizens, they are denied the full rights of being a citizen.

We have no law, for instance, that says if you have five or more prior armed robberies, you are now deemed a “career criminal in armed robbery,” and, thus, your car must bear the prefix “ARCC” (armed robbery career criminal) and that special plate, that special mark, allows the authorities to stop you merely for having that mark and question you about any recent bank robberies. We have no law stating that if you are a career criminal with multiple burglaries, your car or your house must be marked with “BCC” (burglary career criminal), which allows officers to stop your car because of the mark and allows officers to enter your home without a search warrant, without probable cause, without exigent circumstances, or without hot pursuit and allows those officers to seize and question you in your home about recent burglaries in your neighborhood.

We also do not have, for instance, a statute stating that if you are adjudged a career criminal in sexual or physical assaults, you retain the right to go to trial on your next offense with a private attorney of your own choosing, but you do not have the right to a public defender.

The Bill of Rights and the Minnesota Constitution have no memory. To illustrate, assume a coin has been flipped ten times and has landed heads up ten straight times. On the 11th flip, the odds remain exactly one out of two that it will land heads up. The coin does not remember there were ten previous heads up in a row, and the coin does not equalize that statistical oddity by now forcing itself to come down tails up. So it is with constitutional guarantees that carefully shield individual liberty. Each and every time you are arrested for a crime and brought to justice, each individual guarantee surrounds the citizen once again.

It is not that career criminals do not feel the effects of lengthy criminal records. If they take the stand to testify on their own behalf, a felony criminal record can be used to impeach their credibility. If they are lawfully convicted, a lengthy criminal history score will hurt them badly at sentencing in Minnesota. All states, when there is discretion in sentencing, give a sentencing judge the right to impose a lengthier sentence for someone with a criminal history score than for someone convicted of exactly the same crime who has no criminal history score. Habitual offender statutes that severely penalize criminal defendants with lengthy prior convictions are on the books in almost all states. See e.g., Minn.Stat. § 609.1095, subds. 2 (permitting increased sentences for dangerous offenders who commit third violent crime), 3 (requiring mandatory sentence for third violent felony), 4 (1998) (permitting aggravated-durational departure to statutory maximum sentence for sixth felony offense).

But the process leading up to sentencing, meaning the arrest, the gathering of evidence, and the trial, give to every citizen, even those with a record, the full array of constitutional rights. In Ascher, the “mark” or “brand” was (a) driving a car and; (b) driving a car in a zone targeted for random road block stops to check you out for alcohol-impaired driving. Those random stops were forcefully struck down. Ascher quoted from Justice Brennan’s dissent in Michigan Dep’t of State Police v. Sitz, in which he stated:

“Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police.”

Ascher, 519 N.W.2d at 185 (quoting Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 457-58, 110 S.Ct. 2481, 2489, 110 L.Ed.2d 412 (1990) (Brennan J., dissenting) (citation omitted)). The Ascher court recognized the laudability of determining alcohol-impaired drivers but clearly found that “public policy” has no place in overriding a citizen’s constitutional guarantees. Ascher goes on to state:

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.

In sum: (a) Ascher tells us that the same constitutional guarantees surrounding all citizens accused of all crimes surround those suspected of impaired driving; (b) “public policy” does not trump the U.S. Bill of Rights or the Minnesota State Constitution; and (c) Dickerson tells us that when it comes to interpreting constitutional guarantees, the judiciary retains primacy over the legislative process.

As stated in the beginning, I concur in the result because the result can be reached without deciding the seminal issue of the constitutionality of Minn.Stat. § 168.0422. But I write specially because that statute is behind the facts of this case. That statute is now alive and abroad on Minnesota highways.

Whenever a society marks or brands its citizens because of past conduct and then decrees those citizens less than full citizens, and, thus, entitled to less than full rights, we have not just taken one step down the slippery slope toward a police state. Rather, we have taken four giant steps and are on our way toward a mindless rush into fascism. As the Nazi party was coming to power in Germany during the 1930s (before September 1, 1939 when the real agenda of the Third Reich became known), the government was careful to come down hard on pickpockets, thieves, rapists, and murderers; gypsies; and ethnic groups. I suggest that if you stopped the average man or woman on the streets of a German town in those days, they would have said, “I didn’t know that was happening, but it sounds like a good idea to me. It is about time!”

If you are going to “mark” or “brand” a citizen’s car or his home because of past criminal conduct, go ahead if you can come up with a sound, defensible public-policy reason to justify it. We do, after all, require inmates of county jails and state prisons to wear distinctive garb (while a few may not, the majority of penal institutions do). But please remember that wearing the distinctive garb is neither a crime in and of itself nor articulable suspicion that you are now engaged in new criminal activity.

If Minnesota is going to trash the Bill of Rights, why do we concentrate on traffic offenses, which are misdemeanors and gross misdemeanors? Wouldn’t it be better “public policy” to mark all citizens who have lengthy felony records and subject them to random suspicionless stops?

      . Special series license plates permit the continued operation of a vehicle that has its registration plates impounded because a driver and/or owner committed certain driving offenses. Minn.Stat. § 168.041, subd. 6(a), .042, subd. 12 (1998). Both statutory subdivisions authorize special series plates if (1) the violator or owner has a limited license, (2) the owner is not the violator and has a valid license, or (3) a member of the owner’s household has a valid license. Id. Special series plates may also be issued under Minn.Stat. § 168.041, subd. 6(a), if someone in the violator's household has a valid driver’s license and may be issued under Minn.Stat. § 168.042, subd. 12, if the violator has an identified qualified licensed driver.

      . In State v. Greyeagle, 541 N.W.2d 326 (Minn.App.1995), we held that officers could not lawfully stop vehicles based solely on the observation of special series license plates on the vehicle. The legislature enacted Minn. Stat. § 168.0422 subsequent to this court's decision in Greyeagle. We need not resolve whether this statute has effectively overruled Greyeagle.

      . Baumann argues that the police did not charge him with obstruction of legal process. But whether or not Baumann was charged with obstruction of legal process is not controlling. The fact that the charge was objectively available answers the inquiry for probable cause purposes. See State v. White, 489 N.W.2d 792, 794 (Minn.1992) ("Under the objective test of probable cause which we use, the issue is whether there was objective probable cause to arrest.”).

        . The Fourth Amendment states:
      The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

      . Article 1, Section 10 of the Minnesota Constitution states:
      The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.

      . A leading commentator on the Fourth Amendment wrote:
      But those with prior arrests and prior convictions must be allowed to live in the world without the risk of constant harassment, and thus there is no room for an exception to the rule that a brief seizure for investigation may not be based solely upon an individual’s past record.
      4 Wayne R. LaFave, Search and Seizure § 9.4(f) at 192-93 (3d ed.1996) (footnotes omitted).


author: EDWARD J. PARKER, Judge

text:
    CITY OF GOLDEN VALLEY, Respondent, v. ONE 1998 PONTIAC GRAND PRIX, VIN # 1G2WP521WF309530, Pennsylvania License Plate P520111, Defendant, and Mark Robert Blair, claimant, Appellant.
    No. C5-00-581.
    Court of Appeals of Minnesota.
    Sept. 12, 2000.

      Mark J. Schneider, Rondoni, MacMillan & Schneider, Ltd., Assistant Golden Valley City Attorney, Minneapolis, for respondent.
    Edward M. Cohen, Jr., Cohen & Fried-berg, Ltd., Minneapolis; and Lisa Lodin Peralta, St. Paul, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, AMUNDSON, Judge, and PARKER, Judge.
   OPINION

EDWARD J. PARKER, Judge

Appellant Mark Robert Blair challenges the district court’s findings of fact and conclusions of law that his criminal record contains the requisite three or more prior DWI convictions or license revocations necessary to subject his automobile to forfeiture by the state. We affirm.

FACTS

In the early morning of October 23, 1999, Mark Robert Blair was arrested for DWI in Golden Valley, Minnesota, after his blood alcohol level registered over the legal limit. At the time of his arrest, Blair was driving without a valid driver’s license because his driving privileges had been revoked on or about July 17, 1999, for an implied consent violation. As a result, the state charged Blair with both an aggravated driving violation for driving after a DWI-related license revocation, and a gross misdemeanor DWI. In May 2000, Blair pled guilty to the October 1999 DWI charge.

Several years before moving to Minnesota, Blair had lived in Pennsylvania where he was charged with DWI in June 1988. This was Blair’s first DWI offense. Blair’s 1988 DWI offense resulted in an adjudication under Pennsylvania law of “accelerated rehabilitative disposition” (ARD). ARD is a type of pretrial diversion program, emphasizing rehabilitation of the offender and prompt disposition of charges without the costly and time-consuming aspects of trials and court proceedings. On October 4, 1988, Blair received ARD for his June DWI charge. Five years later, while still living in Pennsylvania, Blair was again arrested for DWI in August 1993. Blair pled guilty to this charge, and was convicted.

After moving to Minnesota, Blair had his license revoked in July 1999, for an implied consent violation. At the time of his October 1999 conduct, Blair’s license was still revoked from the July incident.

Following Blair’s October 1999 arrest in Minnesota, the City of Golden Valley (the city) sent Blair a notice of seizure and intent to forfeit Blair’s car, pursuant to Minnesota’s forfeiture statute. Thereafter, Blair filed a forfeiture complaint, alleging he did not have the requisite number of prior impaired driving convictions (i.e., DWI convictions) and/or prior license revocations in order to justify forfeiture. A hearing was held on December 29, 1999, at which time the district court sustained the revocation of Blair’s license based on his October 23 conduct, and granted forfeiture of Blair’s vehicle subject to the city’s submission of a certified copy of Blair’s two prior Pennsylvania DWI convictions. Thereafter, on January 11, 2000, the city submitted a certified copy of Blair’s criminal history record, generated by the Pennsylvania State Police Central Repository.

In its findings of fact, dated January 28, 2000, the district court stated:

Pennsylvania ⅜ * * records indicate that Blair was previously convicted of a DWI on October 4, 1988 (offense date of June 4, 1988), and another DWI conviction on March 10, 1994 (offense date of August 6,1993).

Combining these two Pennsylvania DWI convictions with Blair’s July 17, 1999, Minnesota license revocation, the district court concluded that Blair’s October 23, 1999, license revocation triggered the forfeiture statute. The district court found:

[TJhis [October 23, 1999] license revocation occurred within fifteen (15) years of the first of three or more prior impaired driving convictions, three prior license revocations, or any combination of three or more prior impaired driving convictions and prior license revocations, based on separate incidents.

Based on this finding, the district court concluded that Blair’s vehicle was subject to forfeiture.

ISSUE

Does the evidence support the district court’s finding of fact that Blair’s 1988 Pennsylvania DWI accelerated rehabilitative disposition (ARD) constitutes a conviction for purposes of Minnesota’s'forfeiture statute?

ANALYSIS

“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous ⅜ * ⅜_„ ]\/[inn. r. Civ. p. 52.01. An appellate court will reverse a district court’s findings of fact “only when those findings are clearly erroneous.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn.1999) (citing Minn. R. Civ. P. 52.01). “Findings of fact are considered clearly erroneous only if they are not reasonably supported by the evidence.” Id.; Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn.1987) (holding reversal not warranted unless “reviewing court is left with the definite and firm conviction that a mistake has been made”); see Robinson v. State, 567 N.W.2d 491, 495 (Minn.1997) (“In general, a trial court’s findings of fact will not be disturbed unless clearly erroneous.”).

Under Minnesota law, the state may retain a forfeited vehicle or proceeds from the sale of the vehicle. Minn.Stat. § 169.1217 (1998). This court recognizes that

the legislature intended vehicle forfeiture under Minn.Stat. § 169.1217 to serve the important, nonpunitive, remedial goal of enhancing public safety by removing from repeat intoxicated drivers the instrumentality used to commit their violations.

Hawes v.1997 Jeep Wrangler, 602 N.W.2d 874, 878 (Minn.App.1999) (citing Lukkason v. 1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 806 (Minn.App.1999), review denied, (Minn. May 18, 1999)).

Under Minnesota law, a vehicle is subject to forfeiture if it is “used in the conn mission of a designated offense or was used in conduct resulting in a designated license revocation.” . Minn.Stat. § 169.1217, subd. 6. The forfeiture statute defines “designated license revocation” as including a license revocation under Minn. Stat. § 169.123 (1998) (license revoked upon refusal to submit to blood test), and “designated offense” means a DWI violation under Minn.Stat. § 169.121, subd. 1 (1998). To qualify for forfeiture, either must occur

within 15 years of the first of three or more prior impaired driving convictions, three or more prior license revocations^ or any combination of three or more impaired driving convictions and prior license revocations, based on separate incidents.

Minn.Stat. § 169.1217, subd. 1(b)(2), (c)(l)(ii).

In essence, an offender forfeits his/ her vehicle to the state if the offender commits a DWI offense or incurs a DWI-related license revocation within 15 years of any combination of three previous DWI convictions or driver’s license revocations. Under Minnesota’s forfeiture statute,, a “ ‘[pfrior impaired driving conviction’ has the meaning given it in section 169.121, subdivision 3.” Minn.Stat.. § 169.1217, subd. 1(f). A “prior impaired driving conviction” is a prior conviction under Minnesota law or another state’s statute or ordinance that is in conformity with Minnesota law. Minn.Stat. § 169.121 subd. 3(a)(l)(iii); see St. Louis County Attorney’s Office v. $2⅛,6⅛3.01 in U.S. Currency, 524 N.W.2d 542, 545 (Minn.App.1994), review denied (Minn. Feb. 14, 1995); Dempski v. Commissioner of Pub. Safety, 520 N.W.2d 532, 533 (Minn.App.1994).

A comparison of the Pennsylvania and Minnesota DWI statutes shows the Pennsylvania statute substantially conforms with Minnesota’s DWI law. See 75 Purdon’s Pa. Cons.Stat. Ann. § 3731 (West 1996). Thus, a prior DWI conviction in Pennsylvania constitutes a “prior impaired driving conviction” in Minnesota. Key to the analysis, however, is that forfeiture must be based on prior DWI convictions.

Before Blair’s October 1999 license'revocation, Blair had three prior alcohol-related offenses dating back less than 15 years:

1. DWI — (Pennsylvania) June 4, 1988; adjudicated ARD Oct. 4,1988;
2. DWI — (Pennsylvania) August 6, 1993; convicted on March 10, 1994;
3. Alcohol-related license revocation— (Minnesota) July 17,1999.

The district court determined that Blair’s Pennsylvania ARD adjudication constituted a conviction for purposes of the forfeiture statute. As a result, the district court concluded that Blair had two prior DWI convictions, and. one prior license revocation. Since these three designated offenses occurred within 15 years of Blair’s October 1999 .offense, the district court concluded that the forfeiture statute was satisfied.

The crux of Blair’s argument is that his first Pennsylvania DWI offense did not result in a “conviction” because he received what is referred to in Pennsylvania as an ARD adjudication. See Pa. R.Crim. P. 160-186 comm, introduction. The apparent purpose of ARD is,.expeditious disposition of the charges, while focusing on rehabilitating a first-time offender. Id. Blair contends that ARD does not constitute a DWI conviction in Pennsylvania, and therefore the district court improperly counted Blair’s ARD adjudication as a prior DWI conviction under Minnesota’s forfeiture statute.

In its brief, the city relies on this court’s decision in Dempski as dispositive of the issue before us. In Dempski, we held that “a plea of guilty to a violation of Wisconsin’s DWI laws is a conviction for the purposes of [Minnesota’s DWI statute].” Dempski 520 N.W.2d at 533 (emphasis added). Unfortunately, Dempski provides little guidance here, as it is uncertain whether Pennsylvania’s ARD adjudication is equivalent to a plea of guilty.

Under Pennsylvania’s DWI statute, however, it is evident that a prior ARD becomes a conviction when the defendant is convicted for subsequent DWI offenses:

Acceptance of Accelerated Rehabilitative Disposition [ARD], an adjudication of delinquency or a consent decree under the Juvenile Act or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

75 Pa. Cons.Stat. Ann. § 3781(e)(2) (West 1996) (emphasis added).

Thus, in Pennsylvania an adjudication of ARD does not shield a repeat DWI offender from an accounting that includes the ARD as a conviction. In support of his argument that an ARD adjudication is not equivalent to a conviction, Blair cites the Pennsylvania case of Pennsylvania v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982). In dictum, the Knepp court stated that “admission to an ARD program is not equivalent to a conviction under any circumstances * * Knepp, 453 A.2d at 1019. Nevertheless, this statement is followed by a footnote that reads:

It should be noted that ARD is given most definite consideration under certain circumstances * * * [in] that the election of a motorist of participation in ARD amounts to a conviction for purposes of classifying the motorist as an habitual offender.

Id. at 1019 n. 7 (citations omitted).

And, effective in 1983, the Pennsylvania legislature amended its DWI statute (section 3731(e)(2)) to provide that ARD would be considered a prior conviction. Act of Dec. 15, 1982, No. 289, § 9, 1982 Pa. Laws 1268, 1277. As a result, “the Knepp court recognized that a statute will sometimes create an exception to the general policy of distinguishing between conviction and acceptance of ARD.” Pennsylvania v. Becker, 366 Pa.Super. 54, 530 A.2d 888, 891 n. 3 (1987) (emphasis added). In Becker, the court held that under Pennsylvania’s DWI statute, acceptance of ARD is equivalent to a conviction. Becker, 530 A.2d at 894; see Pennsylvania v. Shaw, 560 Pa. 296, 744 A.2d 739, 741 n. 2 (2000) (acknowledging that if defendant has previously accepted ARD on any charge brought under section 3731, “then that acceptance shall be considered as his or her first conviction” (citation omitted)); Pennsylvania v. Brown, 449 Pa.Super. 346, 673 A.2d 975, 979 (1996) (recognizing that when dealing with statutory mandate, such as section 3731(e)(2), acceptance of ARD is considered a conviction); Pennsylvania v. Huckleberry, 429 Pa.Super. 146, 631 A.2d 1329, 1332 n. 5 (1993) (noting that under Pa. Stat. § 3731(e)(2), acceptance of ARD for charge of DWI is a conviction for computing whether subsequent conviction is considered second or subsequent conviction); Pennsylvania v. Rogers, 416 Pa.Super. 59, 610 A.2d 970, 972 (1992) (“[E]ven upon successful completion [of ARD program], the DUI charge would still be considered a first conviction for the purpose of computing sentencing for subsequent violations.” (Citation omitted.)).

Even though Blair’s 1988 Pennsylvania DWI offense resulted in an adjudication of ARD, this disposition became a conviction under Pennsylvania’s DWI law after Blair was convicted of his subsequent DWI offense in 1993. Because Pennsylvania DWI law is consonant with Minnesota’s DWI law, a DWI conviction in Pennsylvania is recognized as a DWI conviction in Minnesota. Blair’s prior ARD adjudication qualifies as a DWI conviction for purposes of calculating the three prior impaired driving convictions and/or license revocations required under Minnesota’s forfeiture statute. The district court did not clearly err in finding Blair’s 1988 ARD was a prior conviction for purposes of forfeiture.

Blair also argues that his Pennsylvania criminal history record does not qualify as admissible evidence of his prior impaired driving convictions. Under the forfeiture statute, “[certified copies' of court records and motor vehicle and driver’s license records” are admissible to show prior convictions. Minn.Stat. § 169.1217, subd. 5. The city submitted a certified copy of Blair’s criminal history record, as maintained by the Pennsylvania State Police Central Repository. Blair contends this certified copy falls short of the forfeiture statute’s requirement.

The forfeiture statute contemplates certified “motor vehicle” and “driver’s license” records as acceptable forms of evidence, and the reliability of a certified copy of Pennsylvania state police records is equivalent to that of motor vehicle and driver’s license records. Further, the certified Pennsylvania record shows the dates, charges, and dispositions of Blair’s offenses, lending additional credence to its admissibility- to show- prior convictions. See State v. Griller, 583 N.W.2d 736, 742 (Minn.1998) noting that rulings on admissibility of evidence rest within sound discretion of the trial court (quoting State v. Olkon, 299 N.W.2d 89, 101 (Minn.1980)). We conclude that the trial court did not abuse that discretion.

DECISION

Because the district court properly found that Blair’s Pennsylvania ARD adjudication constituted a conviction for purposes of Minnesota's forfeiture statute, the district court did not clearly err in determining Blair’s vehicle was subject to forfeiture. ■

Affirmed.

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

      . Before 1983, ARD was a prior conviction for "habitual offender purposes in the civil context of driver license suspension.” Leonard N. Sosnov, Due Process Limits on Sentencing Power: A Critique of Pennsylvania’s Imposition of a Recidivist Mandatory Sentence Without a Prior Conviction, 32 Duq. L.Rev. 461, 463 n. 12 (1994) (citing 75 Pa. Cons.Stat. § 1542 (1992)).