author: MAHAN, P.J.

text:
    RENEWABLE FUELS, INC., Donald James McCrabb, David McCrabb, and Norman Nicol, Petitioners-Appellants, v. IOWA INSURANCE COMMISSIONER and the Insurance Division of the Iowa Department of Commerce, Respondents-Appellees.
    No. 07-0743.
    Court of Appeals of Iowa.
    May 14, 2008.

      Michael L. Mock of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellants.
    Thomas J. Miller, Attorney General, and Jeanie Kunkle Vaudt, Assistant Attorney General, for appellees.
    Considered by MAHAN, P.J., and EISENHAUER and BAKER, JJ.
   MAHAN, P.J.

I. Background Facts and Prior Proceedings

Donald James McCrabb, David McCrabb, and Norman Nicol, are the president, vice-president, and secretary of Renewable Fuels, Inc., an Iowa business organized to construct and operate an ethanol production facility in Emmetsburg. Renewable Fuels and the above-named individuals are collectively referred to hereinafter as the appellants.

On May 2, 2005, the Iowa Insurance Division (Division), pursuant to Iowa Code section 502.604 (2005), ordered the appellants to cease and desist the offer or sale of unregistered, non-exempt securities in the state of Iowa. This order stated that the appellants were not properly licensed as securities agents in Iowa, that the securities offered and sold by the appellants were not registered with the Iowa Securities Bureau, and that the appellants misled investors by omitting material facts related to the specific risks of these securities.

On June 1, 2005, the appellants sent a letter to the Division requesting a contested case hearing. The Division issued a transmittal, including a statement of charges, to the Iowa Department of Inspections and Appeals with the necessary information to authorize the opening of a file and issuance of a notice of hearing. A notice of hearing was issued to the appellants and the Division on July 15, 2005, setting a hearing before an administrative law judge (ALJ) on September 14, 2005. Both parties filed motions to dismiss.

Citing Iowa Code section 502.604(2), the appellants argued that because the hearing was not scheduled within fifteen days of the receipt of the request for hearing, neither the Iowa Department of Inspections and Appeals nor the insurance commissioner had the jurisdiction or authority to proceed with the matter and therefore the cease and desist order had to be vacated and the pending administrative action had to be dismissed with prejudice. The Division resisted this motion to dismiss, challenging the appellants’ interpretation of the statute and also noting that the appellants had failed to state any difficulties, hardships, or prejudice resulting from the hearing date. The appellants filed two responses to this resistance, but did not allege any difficulties, hardships, or prejudice resulting from the September hearing date.

The Division filed its own motion to dismiss, arguing the appellants’ request for a hearing was not timely because it was not received by the Division until more than thirty days after the issuance of the cease and desist order.

The ALJ denied the appellants’ motion to dismiss, noting section 502.604(2) does not set forth any sanction for failure to set a hearing within fifteen days of the receipt of the request for hearing. In doing so, the ALJ also noted that the appellants did not argue there was any willful misconduct on the part of the Division that would merit a dismissal or set forth any claim of hardship or prejudice because of the late hearing date. The ALJ also granted the Division’s motion to dismiss for failure to request a hearing within thirty days of the issuance of the cease and desist order.

The appellants appealed this decision to the Iowa Insurance Commissioner, arguing the ALJ improperly denied their motion to dismiss and improperly granted the Division’s motions to dismiss. On September 22, 2006, the commissioner entered a ruling affirming the ALJ’s decision.

The appellants filed an application for judicial review in district court. The district court determined the commissioner had improperly granted the Division’s motion to dismiss because the appellants’ request for a contested case proceeding had been placed in the mail prior to the expiration of the thirty-day appeal period. However, the district court affirmed the commissioner’s decision denying the appellants’ motion to dismiss. In doing so, the district court determined the fifteen-day time requirement set forth in section 502.604(2) was “directory,” rather than “mandatory,” under Taylor v. Department of Transportation, 260 N.W.2d 521 (Iowa 1977). The court also noted that appellants had failed to demonstrate any prejudice resulting from the September hearing date. Because the district court determined the commissioner should have denied both parties’ motions to dismiss, it remanded the case to the commissioner for a hearing on the merits of the case.

On appeal, the appellants claim the ALJ and the commissioner had no jurisdiction or authority to proceed with this administrative action. They claim the ALJ and commissioner were required as a matter of law to vacate the cease and desist order and dismiss the matter with prejudice because the hearing was not scheduled within fifteen days of receipt of the request for hearing as required by Iowa Code section 502.604(2). They also now claim they were prejudiced by the September hearing date.

II. Standard of Review

On judicial review of a final agency action, our review is limited to correcting any errors of law. Hough v. Iowa Dep’t of Personnel, 666 N.W.2d 168, 170 (Iowa 2003). In determining whether the district court erred in exercising its power of judicial review, we apply the standards of Iowa Code section 17A.19(10) to the agency action to determine whether our conclusions are the same as those of the district court. Williamson v. Wellman Fansteel, 595 N.W.2d 803, 806 (Iowa 1999).

III. Merits

We, like the district court, find our supreme court’s decision in Taylor v. Department of Transportation controlling. In Taylor, Floyd Taylor sought a dismissal of a license revocation proceeding because the department failed to provide him with a hearing within the statutory time period set forth in Iowa Code section 321B.8. 260 N.W.2d at 522. Taylor argued the department “lost jurisdiction” over the matter by failing to provide him a hearing within twenty days of the day it received his request for a hearing. Id. In analyzing this claim, our supreme court stated that the determinative issue was whether the statute was mandatory or directory. Id. The court noted that mandatory and directory statutes both impose duties, but “[i]f the prescribed duty is essential to the main objective of the statute, the statute ordinarily is mandatory and a violation [of that duty] will invalidate subsequent proceedings under [the statute].” Id. at 522-23. However, if the duty is not essential to accomplishing the principal purpose of the statute but is instead “designed to assure order and promptness in the proceeding,” the statute is ordinarily directory and a violation of that directory duty “will not invalidate subsequent proceedings unless prejudice is shown.” Id. at 523.

The court applied this test to Taylor’s claim by first noting that the main objective of chapter 321B was to promote public safety by removing dangerous drivers from the highways. Id. The court stated that construing the time of hearing requirement as mandatory “would undermine rather than further this legislative objective because it would provide a technical basis for avoiding license revocation to many persons whose licenses would otherwise be revoked, without any showing of prejudice from delay in hearing.” Id. The court went on to conclude the hearing time provision in section 321B.8 was directory and not mandatory because

The speedy-hearing provision is obviously intended to assure that persons who abuse their driving privilege are removed from the highways quickly and that uncertainty is eliminated for those against whom a statutory basis for revocation does not exist. Delay beyond the statutory period is unfortunate and is not to be condoned. Nevertheless, the time provision in [section] 321B.8 is clearly designed to provide order and promptness in the administrative process, the characteristic purpose of a directory statute. The main legislative goal of removing dangerous drivers from the highways can still be attained when hearings are late. In the absence of a showing of prejudice by the licensee, a failure to hold the revocation hearing within 20 days of receipt should not preclude a later hearing.

Id. After determining Taylor was not prejudiced by the delay, the court concluded the agency did not err when it overruled his “jurisdictional” motion to dismiss. Id. at 522-24.

The present case turns on our interpretation of whether section 502.604(2) imposes a mandatory or directory duty on the agency to schedule the hearing within fifteen days. Section 502.604(2) states, in pertinent part:

[A cease and desist] order must include ... a statement of the reasons for the order, and notice that, within fifteen days after receipt of a request in a record from the person, the matter will be scheduled for a hearing. If a person subject to the order does not request a hearing and none is ordered by the administrator within thirty days after the date of service of the order, the order ... becomes final as to that person by operation of law. If a hearing is requested or ordered, the administrator, after notice of and opportunity for hearing to each person subject to the order, may modify or vacate the order or extend it until final determination.

(Emphasis added.) Upon our review of this statute, we conclude the hearing time provision is directory and not mandatory.

“The mandatory-directory dichotomy does not refer to whether a statutory duty is obligatory or permissive but instead relates to whether the failure to perform an admitted duty will have the effect of invalidating the governmental action which the requirement affects.” Taylor, 260 N.W.2d at 523. As noted above, we look to the purpose of a statute when determining whether it is mandatory or directory. Iowa Supreme Court Attorney Disciplin ary Bd. v. Attorney Doe No. 639, 748 N.W.2d 208, 209 (Iowa 2008).

Our supreme court has stated that the general purpose of the chapter 502 “blue sky laws is to protect the public from deceit perpetrated in the sale of securities” and that chapter 502 should be “liberally construed” to effectuate its purpose. Midwest Mgmt. Corp. v. Stephens, 291 N.W.2d 896, 901 (Iowa 1980). Likewise, if the statutory language of chapter 502 is susceptible to more than one construction, “it should be given the construction which will effect rather than defeat the purpose of the statute.” Id.

Section 502.604(2) does not state that the underlying administrative order must be automatically vacated and the matter dismissed with prejudice if the requested hearing is not scheduled within fifteen days. We find that construing section 502.604(2) in such a mandatory fashion would undermine the purpose of protecting the public by providing a technical basis for the sale of allegedly unregistered and misleading securities to the general public. See Taylor, 260 N.W.2d at 523. Accordingly, we find that the hearing time provision in section 502.604(2) is directory and not mandatory. This construction is in accord with the general rule that “statutory provisions fixing the time, form, and mode of proceeding of public functionaries are directory because they are not the essence of the thing to be done but are designed to secure system, uniformity, and dispatch in public business.” Id. “Such statutes direct the thing to be done at a particular time but do not prohibit it from being done later when the rights of interested persons are not injuriously affected by the delay.” Id.

Because the statute at issue is directory, the delay in scheduling the hearing does not invalidate the subsequent proceedings “unless prejudice is shown.” Id. Despite the fact that the Division resisted the appellants’ motion to dismiss by pointing out that there was no claim of hardship or prejudice, the appellants still did not allege hardship or prejudice before the agency. The ALJ specifically noted this fact in his ruling and therefore did not consider whether a dismissal was appropriate in light of any prejudice suffered during the delay.

In their appellate brief, the appellants now claim the prejudice was “inherent” because they were restricted from raising capital. We find this issue has not been preserved for our review.

In cases involving judicial review of final action of an administrative agency, an issue must generally be presented to the agency to satisfy error preservation requirements. Strand v. Rasmussen, 648 N.W.2d 95, 100 (Iowa 2002); Ahrendsen v. Iowa Dep’t of Human Servs., 613 N.W.2d 674, 676 (Iowa 2000) (“This court’s review is limited to questions considered by the agency.”). Because the appellants did not claim they were prejudiced by the delayed hearing date, neither the ALJ nor the commissioner had the opportunity to consider whether the cease and desist order should have been vacated in light of the length of time the appellants were thereby restricted from raising capital. We will not consider appellants’ prejudice claim now, for the first time, on appeal.

Because the appellants did not allege they were injuriously affected by the delay, we find that the failure to schedule the hearing within fifteen days did not preclude a later hearing and did not necessitate a dismissal and vacation of the cease and desist order.

IV. Conclusion

We have considered all arguments presented and find no basis for reversal of the district court’s order. The judgment of the district court is affirmed.

AFFIRMED.

      . Although there was some initial confusion as to whether the order was issued pursuant to the 2003 or 2005 version of the Iowa Code, the parties now agree the 2005 code controls this case.


source: Caselaw Access Project

author: MAHAN, J.

license: Public Domain

text:
    In re The MARRIAGE OF Angela Kay HOCKER and Timothy Edward Hocker Upon the Petition of Angela Kay Hocker n/k/a Angela Kay Bristow, Petitioner-Appellee, and Concerning Timothy Edward Hocker, Respondent-Appellant.
    No. 07-1524.
    Court of Appeals of Iowa.
    May 14, 2008.

      Chad A. Kepros and Lori L. Kloekau of Bray & Kloekau, P.L.C., Iowa City, for appellant.
    Peter J. Gardner of Meardon, Sueppel & Downer, P.L.C., Iowa City, for appellee.
    Heard by SACKETT, C.J., and HUITINK and MAHAN, JJ.
   MAHAN, J.

Timothy Hocker appeals following the district court’s order declining to exercise jurisdiction over his modification petition, in favor of allowing modification to proceed in Illinois. Upon our consideration of the record and arguments of the parties, we affirm.

I. Background Facts and Proceedings.

Angela Hocker, n/k/a Angela Bristow, and Timothy’s marriage was dissolved by decree which incorporated their stipulation in March 2005. At the time, Timothy resided in Johnson County, Iowa, and Angela had moved to Illinois with the parties’ two children, Andrew and Zoe. The incorporated stipulation provided that it was prepared according to Iowa law and is to be construed under Iowa law, although other provisions envisioned that Timothy intended to move to Illinois. The decree and stipulation granted joint legal custody as well as joint physical care of the children to Angela and Timothy. The parties operated under this decree and stipulation for some time before problems apparently arose.

Since August 2006, the children have spent about a week’s worth of time per month in Timothy’s care and the remaining three weeks with their mother in Illinois. Both children attend school, church, and extracurricular activities in Illinois as well as having medical and dental care in Illinois. Timothy never moved to Illinois, but did move to the Quad Cities area in Scott County, Iowa, just on the border with Illinois. Angela had also moved at least once since the dissolution, from Bloomington, Illinois, to Flanagan, Illinois. The distance between the parties’ residences at the time of hearing was approximately 120 miles. Angela’s current employment was as a cashier for Casey’s General Store at a rate of $7.50 per hour. Angela asserts that Timothy received approximately $575,000 more in the dissolution property settlement than she received.

Angela filed an “Application to Enroll a Decree of Another State” in Illinois in February 2007, the first step in seeking modification in Illinois under an Iowa decree. Timothy filed a motion to dismiss in response, contending that Iowa retained jurisdiction as the decretal state. Illinois’s Eleventh Judicial District granted the motion to dismiss based upon Iowa’s continuing, exclusive jurisdiction over custody, though also granting Angela leave to amend if Iowa declined jurisdiction and kept the file open for ninety days to this end. Timothy filed a modification action in mid-May 2007 in Johnson County, Iowa, requesting a change in physical care of the children. Angela made a limited appearance in June to challenge jurisdiction and requested the Iowa court to decline jurisdiction. Timothy resisted Angela’s requests, and the parties made their arguments before the court in a contested hearing in July 2007. The Iowa district court found that, although Iowa retained continuing and exclusive jurisdiction as the decretal state over child custody matters under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA,” codified at Iowa Code chapter 598B (2005)), Iowa is an inconvenient forum due to the nature of evidence and greater availability of proof in Illinois versus Iowa. The court dismissed Timothy’s modification petition and granted a request from Angela for attorney fees of $1000. Timothy appeals.

II. Scope and Standards of Review.

Although the primary question on appeal concerns jurisdiction, the underlying action involves child custody; therefore, equitable principles apply and our review is de novo. In re Marriage of Cervetti 497 N.W.2d 897, 899 (Iowa 1993). The fundamental question of which state is best suited to resolve custody quickly, permanently, and on the merits, is decided by us anew. Id.

III. Issues on Appeal.

A. Inconvenient Forum.

The Iowa district court in Johnson County, the county originating the dissolution decree, determined that although Iowa properly held continuing and exclusive jurisdiction over child custody matters this state is an inconvenient forum relative to ■ the evidence and forms of proof on custody available in Illinois.' Neither Timothy nor Angela contest that Iowa retains continuing and exclusive jurisdiction over custody modifications in this case. Iowa cases reflect an undeniable bias favoring continuing jurisdiction of the decree state when modification is sought. Cervetti, 497 N.W.2d at 899; In re Marriage of Leyda, 398 N.W.2d 815, 819 (Iowa 1987); In re Marriage of Hubbard, 315 N.W.2d 75, 80 (Iowa 1982); Pierce v. Pierce, 287 N.W.2d 879, 883 (Iowa 1980); In re Marriage of Ross, 471 N.W.2d 889, 892 (Iowa Ct.App.1991); In re Marriage of McEvoy, 414 N.W.2d 855, 857 (Iowa Ct.App.1987). This preference stems from a belief expressed by the UCCJA (precursor to the UC-CJEA) drafters that greater stability in custody arrangements will be achieved, and forum shopping minimized, by faithful adherence to the preference. Cervetti 497 N.W.2d at 899 (citing Uniform Child Custody Jurisdiction Act § 14 cmt., 9 U.L.A. 292 (1988)). The UCCJEA reinforces this preference by providing that a court of this state shall not modify the decree of another state unless the decree state no longer retains jurisdiction, or declines jurisdiction because another court would be a more convenient forum. Iowa Code § 598B.203 (2005); Cervetti, 497 N.W.2d at 900.

Provisions of Iowa Code chapter 598B do envision that, over time, a child’s ties to the decree state may become too tenuous to justify continuing jurisdiction. Cervetti 497 N.W.2d at 900 (citing UCCJA formerly found at chapter 598A); see also § 598B.207. The question is at what point the link is broken. The issue in this case is whether the Iowa district court, having proper continuing and exclusive jurisdiction, correctly declined its authority to decide this case in keeping with section 598B.207. That section provides that a court with jurisdiction may decline to act if another state is a more appropriate forum and this is an inconvenient one, taking into • account the following factors:

a. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
b. The length of time the child has resided outside this state.
c. The distance between the court in this state and the court in the state that would assume jurisdiction.
d. The ■ relative financial circumstances ofthe'parties.
e. Any agreement of the parties as to which state should assume jurisdiction.
f. The nature and location of the evidence required to resolve the pending litigation, including testimony 'of the child.
g. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
h. The familiarity of the court of each state with the facts and issues in the pending litigation.

Iowa Code § 598B.207(2). The overarching purpose of the UCCJEA in chapter 598B is to:

[ajssure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and the family have the closest connection and where significant evidence concerning the child’s care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and the family have a closer connection with another state.

Cervetti 497 N.W.2d at 901; see also Iowa Code § 598B.201.

After reviewing the record and arguments of the parties on appeal, we are convinced the district court correctly declined to exercise jurisdiction in favor of Illinois. The threshold question is always whether conditions since the dissolution decree was entered have so materially and substantially changed that the best interests of the children compel a change in custody. Cervetti 497 N.W.2d at 901 (citing In re Marriage of Hubbard, 815 N.W.2d 75, 82 (Iowa 1982)). The object of the examination is not to re-litigate matters settled at the divorce but to decide whether circumstances have materially changed since that time, and the reviewing court must assess the current situation and project into the future. Id. Timothy reiterates more than once that “all of the evidence prior to March 2005 [decree] exists in Iowa.” This focus mislays the considerations on modification, as to changes in conditions since the entry of the decree, and we do not consider relevant the location of evidence prior to March 2005. As the district court aptly noted:

The children have been enrolled in schools and day care in Illinois since the date of the decree [February 2005].... There is no allegation of domestic violence in this case. The children have resided outside the state of Iowa with their mother for approximately two and a half years. The children do visit Timothy regularly, however, their schools, church, doctors, teachers, and other care providers are all present in the state of Illinois.... [D]ue to Timothy’s residence in Scott County, his travel distance to the Illinois court would be approximately 120 miles [and Timothy] possesses substantial assets that will allow him to travel to the state of Illinois without undue hardship.
While there is no specific agreement between the parties that any modification would be heard by an Illinois court rather than an Iowa court, the contents of the stipulation certainly contemplate that as a possibility. Specifically, paragraph 8(b) of the stipulation states “If, after Zoe has commenced kindergarten, the parties reside in the same school district, the parties agree to reconsider the physical care schedule as in the children’s best interests.” The trial court making the initial child custody determination contemplated the parties would be living not only in the same state, but also within the same neighborhood as the children’s school.
While the children continue to have relationships with relatives in both states, the Court finds a majority of the evidence that exists to resolve the issues at the heart of a child custody dispute exist in the children’s home state of Illinois. The children are being raised as Illinois residents. They have established school, care giver, and other relationships in their home state.
The Illinois court will be better able to decide the child custody issue expeditiously and economically. The teacher, care giver, medical provider, and other witnesses to the children’s daily routine and care are available more readily in the Illinois rather than the Iowa court. In the event Iowa asserted jurisdiction, Angela would be placed in the position of securing and transporting or compensating for transportation of the pertinent witnesses in this case. [Angela] is less financially able to make those expenditures.

Although the Iowa court may be more familiar with the original court case in the decree, we agree with the Iowa district court’s conclusions that at this time the bulk of the evidence pertinent to modification of child custody is in Illinois. The physical location of the children primarily in Illinois and the parties’ disparate incomes militate strongly in Angela’s favor, and defending a modification action in Iowa would be both unnecessarily disruptive to the children and financially burdensome for Angela. See Cervetti, 497 N.W.2d at 901. We affirm the Iowa district court’s declination of jurisdiction in favor of Illinois as a more convenient forum under Iowa Code section 598B.207.

B. Angela’s Attorney Fees.

Timothy also asserts that the district court improperly awarded Angela trial attorney fees in the amount of $1000. An award of attorney fees is not a matter of right, but rests within the court’s discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App.1997). Due to their disparate earning capacities and in light of the respective financial stability of the parties, we cannot say the district court abused its discretion in awarding $1000 in trial attorney fees to Angela. We therefore affirm the award as ordered, and award $500 of appellate attorney fees requested by Angela. Id. Costs on appeal are assessed against Timothy.

AFFIRMED.


author: ANDERSON, PAUL H„ Justice.

text:
    STATE of Minnesota, Respondent, v. Steven Allen GAUSTER, Appellant.
    No. A07-0488.
    Supreme Court of Minnesota.
    July 10, 2008.

      Mark D. Nyvold, St. Paul, MN, for Appellant.
    Lori Swanson, Office of the Attorney General, St. Paul, MN, David J. Hauser, Otter Tail County Attorney, Ryan C. Cheshire, Assistant County Attorney, Fergus Falls, MN, for Respondent.
    State Public Defender’s Office, St. Paul, MN, for Interested Observer.
    Heard, considered, and decided by the court en banc.
   OPINION

ANDERSON, PAUL H„ Justice.

Steven Allen Gauster, was arrested and charged with possession of a controlled substance after the police found methamphetamine in his motor vehicle during an inventory search. Gauster moved to suppress all evidence obtained during the search. After an omnibus hearing, the district court, finding the initial impoundment of Gauster’s vehicle unlawful, held that the inventory search was unlawful under the Fourth Amendment of the U.S. Constitution. Accordingly, the court suppressed all evidence obtained from the search and dismissed the charges against Gauster for lack of evidence and probable cause. The Minnesota Court of Appeals reversed. We granted review. Because we conclude that the impoundment of Gauster’s vehicle was unreasonable, making the concomitant inventory search of the vehicle a violation of Gauster’s Fourth Amendment rights, we reverse the court of appeals and reinstate the district court’s suppression order.

Most of the facts in this case are undisputed and come from the testimony presented at an omnibus hearing. On Friday, August 25, 2006, appellant Steven Allen Gauster, while en route to a friend’s house, was driving in his motor vehicle on Otter Tail County Road 3. According to Gauster, he pulled over onto the shoulder of the road to wait for his girlfriend and his cousin, who he said were following him in a separate vehicle. Gauster said he had lost contact with them sometime earlier. During this time, Otter Tail County Deputy Sheriff Scott Wagner was patrolling the area near the intersection of County Road 3 and County Road 10. While patrolling, Wagner saw Gauster’s vehicle on the shoulder of the road. Without turning on his emergency lights or siren, Wagner pulled up behind the vehicle to see if the driver needed assistance.

Wagner walked up to the driver’s side of Gauster’s vehicle and, according to Gaus-ter, asked Gauster what he was doing and where he was going. Gauster identified himself and told Wagner that he owned the vehicle. According to Wagner, Gaus-ter said he was waiting for some friends and did not know exactly where he was going. But Gauster testified that he responded by pointing to the tree line down the road and indicating the location of a friend’s house. Wagner testified that during this conversation, Gauster was “pleasant, cooperative, [and] polite.”

While talking to Gauster, Wagner noticed the smell of alcohol on Gauster’s breath and saw a twelve-pack container of alcoholic beverages on the front seat, with one bottle missing. Wagner asked Gaus-ter if he had been drinking. According to Gauster, he told Wagner that he had consumed one beer. Wagner then asked Gauster to move the container of alcohol. Gauster put the container in the trunk while Wagner stood right beside him. According to Gauster, he then got back into his vehicle and asked Wagner if he could wait for his friends a bit longer, to which Wagner said yes. Wagner then returned to his squad car and prepared to leave.

Wagner stated that as he was leaving, he ran Gauster’s vehicle license plate on his squad car computer and learned that the registered owner of the vehicle had a suspended driver’s license. Wagner then turned his squad car around, pulled behind Gauster’s vehicle, and activated his emergency lights. Wagner again walked up to Gauster’s driver’s side window, told Gaus-ter his license was suspended, and requested identification. Gauster testified that he told Wagner he was unaware of the suspension. Gauster then gave Wagner his Minnesota driver’s license and again indicated that the vehicle belonged to him. According to Wagner, Gauster continued to be pleasant and polite.

Wagner also asked Gauster for proof of insurance on the vehicle. Gauster responded that he thought he had insurance and that his wife was supposed to get insurance on the vehicle, but that he did not have the insurance card with him. Gauster then provided Wagner with an insurance agency’s business card.

At this point, there are some key discrepancies between Wagner’s and Gaus-ter’s testimony about what occurred. According to Wagner, he went to his squad car and made several telephone calls to the telephone number listed on the business card provided by Gauster but was unable to get through to anyone. Wagner then returned to the driver’s side window of Gauster’s vehicle and notified Gauster that there was a problem with his insurance coverage. Wagner testified that at this point, he noticed several bottle caps on the passenger side floor of the vehicle and so he again asked Gauster if there were any open containers in the vehicle. Wagner stated that Gauster “adamantly” denied having any open containers. Wagner then walked around from the driver’s side window to the passenger’s side window and looked into the vehicle. Wagner testified that from this vantage point he could see an open container “shoved underneath the driver’s seat, a glass bottle that appeared to be two-thirds full of beer.” Wagner asked Gauster to hand him the bottle and, according to Wagner, Gauster cooperated and was polite.

Gauster, on the other hand, testified that a few minutes after Wagner went to his squad car with the insurance agency business card, Wagner approached Gaus-ter from the passenger’s side of the vehicle holding two pieces of paper in his hand. Gauster asked Wagner, “[w]hat are you giving me? ⅜ ⅜ * open bottle and no proof?” and Wagner responded yes.

Both Gauster and Wagner testified that at this point, Wagner stated that he was going to tow Gauster’s vehicle. Specifically, Wagner testified that he told Gauster he was going to tow the vehicle because of Gauster’s suspended driving status and because Gauster did not have proof of insurance. Gauster testified that Wagner said Gauster had 10 days to show proof of insurance but that he was still going to tow Gauster’s vehicle. Wagner testified that he was planning to give Gauster “a ride to wherever he wanted to go” and that Gaus-ter told him he wanted to go somewhere a “couple” of miles up the road. Gauster then stepped out of the vehicle and into Wagner’s squad car because Wagner said he needed to conduct an inventory search of the vehicle before it was towed. Wagner specifically informed Gauster that he was not under arrest.

Both Wagner and Gauster testified that at some point after Wagner notified Gaus-ter that he was going to have Gauster’s vehicle towed and before Wagner began searching the vehicle, Gauster asked Wagner if he could have someone pick up the vehicle. Wagner testified that Gauster requested to have someone pick up the vehicle so that Gauster could avoid incurring any towing charges. According to Wagner, he told Gauster that because Wagner believed the vehicle was uninsured, he would not allow someone else to drive the vehicle away. Gauster testified that he then asked Wagner if Gauster could get the vehicle towed himself and that Wagner said Gauster could not. Wagner contradicted this statement, testifying that Gaus-ter never suggested that he wanted to call someone to tow the vehicle.

According to Wagner, he then conducted an inventory search of Gauster’s vehicle. In the back seat, Wagner found open containers with small amounts of alcohol in them. According to Wagner, he also found a pipe under the driver’s seat, which he believed to be used to smoke methamphetamine. When searching the trunk, Wagner found a white plastic bag, which contained a white granular substance wrapped in clear cellophane. This substance was later determined to be methamphetamine.

According to Gauster, Wagner began the inventory search in the front passenger seat and then in the back seat, where Wagner found two empty bottles. Wagner then searched the trunk and found a bag, in which he found a package. Wagner then told Gauster he would be placed under arrest for possession of the package, which Wagner thought was methamphetamine. According to Gauster, it was at this point that Wagner looked under the driver’s seat of Gauster’s vehicle and found the pipe. Gauster testified that Wagner then returned to the trunk of the vehicle and pulled another package out of a bag, which Wagner thought also contained methamphetamine. Wagner then arrested Gauster. Gauster testified that the entire incident up until he was taken to jail lasted approximately one half hour.

On August 28, 2006, the Otter Tail County Attorney charged Gauster with two counts of controlled substance crime in the first degree, in violation of Minn.Stat. § 152.021, subds. 1(1) and 2(1) (2006), for possession of methamphetamine. On December 8, Gauster moved the district court to, among other things, suppress all evidence obtained as a result of the inventory search of his vehicle. The district court held an omnibus hearing to determine whether suppression of the evidence obtained during the inventory search was appropriate. After the hearing, the district court granted Gauster’s suppression motion, ordering that all evidence obtained as a result of the inventory search be suppressed. The court concluded that the impoundment of Gauster’s vehicle was unnecessary and thus, the concomitant inventory search was unreasonable under the Fourth Amendment of the U.S. Constitution. The court then dismissed the State’s case against Gauster due to lack of evidence and probable cause to support the charges.

The State filed a motion requesting that the district court reconsider its suppression and dismissal order. On the same day, the State filed a notice of appeal to the court of appeals. The district court declined to rule on the State’s motion, concluding that the State’s appeal to the court of appeals, which concerned the same subject as the motion for reconsideration, divested the district court of jurisdiction to rule on the motion. After briefing and oral argument, the court of appeals reversed the district court. State v. Gauster, No. A07-0488, 2007 WL 2917546 (Minn.App. Oct.9, 2007). We subsequently granted Gauster’s petition for further review.

I.

On appeal to our court, Gauster argues that the district court properly suppressed the evidence obtained during the inventory search of his vehicle because there was no need to impound the vehicle and Wagner should have allowed Gauster to arrange for the vehicle to be towed. The State argues that impounding Gauster’s vehicle was reasonable because it could not be legally driven and Wagner did not have an affirmative duty to give Gauster a chance to make alternative towing arrangements. Additionally, the State argues for the first time on appeal that even if an inventory search of Gauster’s vehicle was improper, the search was nevertheless justified under the automobile exception to the warrant requirement. Gauster moved to strike the State’s briefing on the automobile exception, arguing that our court cannot consider this issue for the first time on appeal. Gauster asserts that the record is not sufficiently developed to allow this court to resolve this issue. We deferred any ruling on Gauster’s motion to strike until consideration of the matter on the merits.

When reviewing a district court’s pretrial order on a motion to suppress evidence, “we review the district court’s factual findings under a clearly erroneous standard and the district court’s legal determinations de novo.” State v. Jordan, 742 N.W.2d 149, 152 (Minn.2007) (citing State v. Bourke, 718 N.W.2d 922, 927 (Minn.2006)). We may independently review facts that are not in dispute, and “determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). But we “will not overturn a pretrial order of the district court unless ‘the state demonstrates clearly and unequivocally that the [district] court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.’ ” State v. Robb, 605 N.W.2d 96, 99 (Minn.2000) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn.1977)). Here, because the suppression of evidence led to the dismissal of the charges against Gauster, it is not disputed that the suppression had a critical impact on the outcome of Gauster’s case. See State v. Holmes, 569 N.W.2d 181, 184 (Minn.1997) (“The dismissal of the charge following a suppression of all the evidence clearly meets the critical impact element ⅜ ⅜ ⅜.”). Thus, we will reverse the district court’s order “only if the state demonstrates clearly and unequivocally that the [district] court erred in its judgment.” Id.

The U.S. Constitution and the Minnesota Constitution both prohibit unreasonable searches or seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10; see also South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Generally, warrant-less searches are per se unreasonable. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001). But “inventory searches are now a well-defined exception to the warrant requirement.” Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); see Opperman, 428 U.S. at 373, 96 S.Ct. 3092. Thus, an inventory search “conducted pursuant to a standard police procedure prior to lawfully impounding an automobile [is] not unconstitutional under the Fourth Amendment.” State v. Goodrich, 256 N.W.2d 506, 510 (Minn.1977). Inventory searches are considered reasonable because of their administrative and caretaking functions. Holmes, 569 N.W.2d at 186. These functions “serve to protect an owners property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.” Bertine, 479 U.S. at 372, 107 S.Ct. 738; see also Goodrich, 256 N.W.2d at 510 (“[T]he police will generally be able to justify an inventory [search], taken to safeguard the contents of the automobile, once the police have lawful custody of the vehicle.”).

Because it is the act of im-poundment that “gives rise to the need for and justification of the inventory [search],” the threshold inquiry when determining the reasonableness of an inventory search is whether the impoundment of the vehicle was proper. Goodrich, 256 N.W.2d at 510. For impoundment to be proper, the state must have an interest in impoundment that outweighs the individual’s Fourth Amendment right to be free of unreasonable searches and seizures. Id. “If impoundment is not necessary, then the concomitant [inventory] search is unreasonable.” Id. The State bears the burden to prove that the inventory search exception to the warrant requirement exists in a particular case. See Ture, 632 N.W.2d at 627.

Here, the district court concluded that “there were no circumstances then existing which justified seizure of [Gauster’s] vehicle.” Thus, the court concluded that Wagner should have let Gauster’s vehicle remain where it was on the side of the road because “[i]t was mid-afternoon in August on a rural highway” and “[t]here was no suggestion that [Gauster’s] vehicle parked on the shoulder of the road created a hazard.” Alternatively, the court concluded that Wagner should have allowed Gaus-ter to arrange for his own tow of the vehicle. Because the court concluded that the State had “established no justification for impoundment of [Gauster’s] vehicle,” and thus “no justification for the search of it,” the court deemed the inventory search a violation of Gauster’s Fourth Amendment rights and suppressed the evidence.

The court of appeals reversed the district court’s suppression order. Gauster, 2007 WL 2917546, at *5. The court first concluded that “because [Gauster] could not demonstrate that his vehicle was insured, it could not be driven by him or anyone else.” Id. Additionally, the court concluded that Gauster’s argument that a police officer must give a driver the opportunity to make his or her own arrangements for his vehicle had been rejected by the U.S. Supreme Court in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Gauster, 2007 WL 2917546, at *5. The court of appeals concluded that the impounding of Gauster’s vehicle was reasonable and thus, his Fourth Amendment rights were not violated by the inventory search. Id.

Gauster asserts that impoundment was improper in this case because 1) he was not under arrest; 2) he asked if someone else could come to get the vehicle; and 3) Wagner should have given him the opportunity to arrange for a tow of the vehicle. The State responds that impounding Gaus-ter’s vehicle was reasonable because 1) Gauster could not drive the vehicle due to his suspended driver’s license; 2) no one else could drive the vehicle because Gaus-ter had no proof that the vehicle was insured; and 3) Wagner had no affirmative duty to offer or allow Gauster to make his own towing arrangements.

To resolve the issue of whether the inventory search of Gauster’s vehicle was unreasonable, we must determine whether Wagner had any authority or purpose that justified impounding the vehicle. As stated above, for impoundment to be proper the State must have some legitimate interest in impounding that outweighs the defendant’s right to be free from unreasonable searches or seizures. Goodrich, 256 N.W.2d at 510. The Supreme Court has stated that the police, in the interests of public safety, have the authority to “remove from the streets vehicles impeding traffic or threatening public safety and convenience.” Opperman, 428 U.S. at 369, 96 S.Ct. 3092. Additionally, police may impound a vehicle to “protect! ] the [defendant’s] property from theft and the police from claims arising therefrom.” Goodrich, 256 N.W.2d at 511.

Impoundment of a motor vehicle must also be conducted pursuant to standardized criteria. Bertine, 479 U.S. at 375, 107 S.Ct. 738; Robb, 605 N.W.2d at 104. In this case, the Otter Tail County Sheriffs Department’s policy and procedure manual does not include regulations about when a vehicle may or must be impounded, but the manual does include regulations about when the vehicle may be inventoried. Otter Tail County Sheriffs Department: Enforcement Unit Policy & Procedure Manual § G-100:102 F.2. (2005). The county’s policy states that the police should conduct an inventory search of the vehicle when “the vehicle has been lawfully seized or impounded pursuant to the arrest of the driver; after towing the vehicle for violations, or for related enforcement or safety reasons as defined by state law ”; and “when officers conduct the inventory within the scope of this policy as an administrative procedure.” Id. § G-100:102 F.2.A (emphasis added). Because the Otter Tail County procedures provide that when a driver is not -arrested the police may impound “for violations, or for related enforcement or safety reasons as defined by state law,” we look to state law to determine whether impoundment was justified in this case. Id. § G-100:102 F.2.A(2)(a) (emphasis added).

Nature of violations and arrest of the driver

Wagner testified that he impounded Gauster’s vehicle because of Gauster’s suspended license and his failure to provide proof of vehicle insurance. These violations are both misdemeanors under Minnesota statutes. Minn.Stat. §§ 171.24, subd. 1. 169.797, subd. 4 (2006). But Wagner testified that at the time he decided to impound Gauster’s vehicle, he had not placed Gauster under arrest and was instead going to issue Gauster a citation for the violations. Issuing a citation for these violations is consistent with Minn. R.Crim. P. 6.01, subd. l(l)(a), which states that an officer

shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation.

Given the statute and the criminal rules, impoundment would have had to be authorized on some other ground than the nature of the violations or the arrest of the driver.

Safety hazard

If the vehicle’s location created a safety hazard, Wagner would have been authorized to impound it immediately. Minn.Stat. § 168B.04, subd. 2(b)(1)(h) (2006). But the district court specifically found that leaving Gauster’s vehicle on the side of the county road would not have created a safety hazard. Given that the vehicle was on the shoulder of a rural road in the middle of the afternoon, we conclude the court’s finding that Gauster’s vehicle did not create a safety hazard was not clearly erroneous.

Parking violations

Nevertheless, it is a violation of state traffic laws for a person to “stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway.” Minn.Stat. § 169.32(a) (2006). Moreover, an officer is authorized to “move such vehicle, or require the driver or other person in charge of the vehicle to move the same, to a position off the paved or improved or main traveled part of such highway,” Minn.Stat. § 169.33(a) (2006), or to impound the vehicle, Minn. Stat. § 168B.04, subd. 2(b)(1)®. These statutes gave Wagner the authority to impound Gauster’s vehicle in furtherance of protecting public safety. The statutes, however, go on to state that the police can impound such a vehicle only if the vehicle has been left unattended, and only 4 hours after a police officer has properly tagged the vehicle. Minn.Stat. §§ 168B.04, subd. 2(b)(1)®, 169.041, subd. 3 (2006). Because of the 4-hour required waiting period, at the time of the impoundment Wagner was not authorized to impound Gauster’s vehicle, nor did he have a legitimate state interest in impounding Gauster’s vehicle, based on the vehicle’s location on the side of the road. It might be the case that Wagner could have impounded Gauster’s vehicle 4 hours later if Gauster left it on the side of the road, but the question in this case is whether, at the time of the impoundment, Wagner was authorized to impound Gauster’s vehicle. We conclude he was not.

Caretaking function

Because Wagner had no justification to impound Gauster’s vehicle for his traffic violations or because of any safety concerns, the only possible justification left would have to be based on the police care-taking role of protecting the defendant’s property. Goodrich, 256 N.W.2d at 511. We have stated that in furtherance of this caretaking function, “[t]he police will generally be able to justify an inventory when it becomes essential for them to take custody of and responsibility for a vehicle due to the incapacity or absence of the owner, driver, or any responsible passenger.” City of St. Paul v. Myles, 298 Minn. 298, 304, 218 N.W.2d 697, 701 (1974). But in Goodrich, we said that if the defendant assumes responsibility for his property, there is no need for the police to take on the responsibility to protect it. 256 N.W.2d at 511.

In Goodrich, the defendant pulled into a gas station and was arrested for driving under the influence of alcohol. Id. at 508. During the arrest process, the arresting officer discovered that the defendant’s vehicle was not registered to the defendant. Id. The arresting officer informed the defendant that he was going to tow and impound the vehicle. Id. But the officer allowed the defendant to make a telephone call to his brother. Id. Shortly thereafter, the defendant’s brother and mother arrived on the scene. Id. The brother asked the officer if he could take the vehicle instead of having it towed. Id. The officer, who had already called the towing service, said no. Id. The vehicle was towed, and during an inventory search conducted the next day the officer found controlled substances in the vehicle. Id.

The defendant in Goodrich moved to suppress the evidence obtained during the inventory search. Id. at 509. The district court denied the motion. Id. On appeal, we held that the district court erred when it denied the defendant’s motion to suppress the evidence obtained during the inventory search. Id. at 511. First, we concluded that

[t]he mere fact that the automobile was not registered to defendant, in the absence of reason to believe that defendant was wrongfully in possession of it, does not render impoundment reasonable upon defendant’s unrelated arrest for “driving under the influence,” and despite defendant’s alternative arrangements for disposition of the automobile.

Id. Second, we stated that the only remaining reason for impoundment was

the necessity of protecting the [defendant’s] property from theft and the police from claims arising therefrom. But the defendant’s assumption of responsibility for his property obviated that necessity in this case. Defendant did not ask to simply leave his locked automobile on the street but arranged to have his mother or brother drive it home.

Id. (citation omitted). Because we concluded in Goodrich that the state faded to show the impoundment “was a reasonable means of furthering a reasonable state purpose,” we held that the search violated the defendant’s Fourth Amendment rights, and therefore the evidence obtained during the concomitant inventory search was inadmissible. Id.

In this case, as in Goodrich, the only remaining justification to impound Gauster’s vehicle at the time of impoundment was to further the police caretaking function of protecting Gauster’s property. Because Gauster took responsibility for the vehicle, as did the defendant in Goodrich, the need to protect Gauster’s vehicle was obviated, leaving no proper purpose for impoundment.

One could distinguish the facts of this case from those in Goodrich because in Goodrich, the officer had already allowed the defendant to call his brother, and his brother had already arrived on the scene when the officer refused to allow the brother to take possession of the vehicle. Id. at 508. Here, there were no passengers and no other parties on the scene who could take responsibility for Gauster’s vehicle. But because Gauster was not under arrest, Gauster himself — like the defendant’s brother in Goodrich — was available to take custody of the vehicle and make proper arrangements.

While the need for the police to protect the vehicle and its contents is often present when police officers arrest a driver, in this case Gauster was not arrested and therefore never relinquished control of his vehicle and had no need to leave it unattended. Further, the impoundment and towing statutes only authorize impoundment for safekeeping when the person in control of the vehicle is taken into custody. Minn.Stat. § 169.041, subd. 4(12); Minn. Stat. § 168B.04, subd. 2. Because Gauster had at least 4 hours to make the proper arrangements for the vehicle before it could be towed, Minn.Stat. §§ 168B.04, subd. 2(b)(l)(i), 169.041, subd. 3, and because he was available to and capable of making his own arrangements for the vehicle, we conclude that as was the case in Goodrich, the police had no legitimate “caretaking” purpose that justified impounding Gauster’s vehicle. Therefore, we hold that the district court did not err in concluding that the impoundment was improper because “there were no circumstances then existing which justified seizure of [Gauster’s] vehicle.”

In making our determination, we recognize that the Supreme Court appears to reject the proposition that, before impounding a vehicle, the police mpst give a driver the opportunity to make his or her own arrangements for the vehicle. In Ber-ime, the defendant was arrested for driving while intoxicated and his vehicle was impounded and searched. 479 U.S. at 368-69, 107 S.Ct. 738. The Court, in response to the Colorado Supreme Court’s observation that the defendant could have been offered the opportunity to make his own arrangements, stated:

[W]hile giving [the defendant] an opportunity to make alternative arrangements would undoubtedly have been possible, ⅞ * * [t]he real question is not what could have been achieved, but whether the Fourth Amendment requires such steps. * * * The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative less intrusive means.

Id. at 373-74, 107 S.Ct. 738 (internal quotation marks omitted).

While Bertine may reject the argument that the Fourth Amendment requires the police to ask an arrested driver if he wants to make alternative arrangements for his vehicle, we conclude that two facts distinguish Bertine from this case. First, as Gauster asserts, in Bertine the defendant was placed under arrest before his vehicle was impounded. Bertine, 479 U.S. at 368, 107 S.Ct. 738. It therefore may have been necessary to do something with the vehicle. It does not appear unreasonable for the Supreme Court to have concluded that in such a case, the police should not have to take time to determine how the arrestee wants to dispose of his vehicle. But Gaus-ter was not arrested and it was therefore not necessary for the police to take his vehicle into custody in the first place.

This distinction is further supported by State v. Robb, decided after Bertine, in which we affirmed the proposition set forth in Goodrich that impoundment is unreasonable when a defendant has made reasonable arrangements for the safeguarding of his property. State v. Robb, 605 N.W.2d 96, 104 (Minn.2000). In Robb, a driver was arrested on an outstanding body warrant. Id. at 99. But because the driver’s friend was at the scene and willing to take responsibility for the vehicle, we concluded that there was no legal basis to impound the driver’s vehicle. Id. at 104. Because in this case the driver himself, Gauster, was available to make arrangements for the vehicle because he was not arrested, it appears that, as in Goodrich and Robb, at the time of the impoundment there was no legal basis for impounding the vehicle and not allowing Gauster to arrange for his own tow.

Moreover Gauster asked Wagner if he could make his own arrangements for his vehicle. This fact further distinguishes the present case from Bertine, where the Supreme Court rejected the assertion that the police should have, on their own, offered the defendant the opportunity to make his own arrangements. As in Goodrich, where the defendant asked the police if he could make his own arrangements for the vehicle, Gauster affirmatively requested that he be allowed to have a friend drive the vehicle or to get his ovm tow. Thus, even if under Bertine the police are not required to offer a driver the option to make his own vehicle arrangements, under Goodrich we conclude that the police still may be under an obligation to permit a driver to make reasonable alternative arrangements when the driver is able to do so and specifically makes a request to do so. We therefore conclude that, in light of the facts of this case — including that Gaus-ter was not placed under arrest and that he asked Wagner if he could make his own vehicle arrangements — the impoundment of Gauster’s vehicle was not justified under the Fourth Amendment.

Because we conclude that the impoundment of Gauster’s vehicle was not justified, we further conclude that the concomitant inventory search of the vehicle violated Gauster’s Fourth Amendment right against unreasonable searches or seizures. We therefore reverse court of appeals and reinstate the district court’s order suppressing the evidence obtained during the inventory search of Gauster’s vehicle and dismissing the charges against Gauster for lack of probable cause.

II.

The state alternatively argues that, even if the inventory search of Gaus-ter’s vehicle was unconstitutional, the search of the vehicle’s trunk was justified by probable cause under the automobile exception to the warrant requirement because Wagner discovered an open container and a pipe in the passenger compartment of the vehicle. The state did not raise this argument at either the omnibus hearing or on appeal to the court of appeals. We generally will not consider arguments raised for the first time on appeal. Ferguson v. State, 645 N.W.2d 437, 448 (Minn.2002). “One purpose of this rule is to encourage the development of a factual basis for claims at the district court level.” Johnson v. State, 673 N.W.2d 144, 147 (Minn.2004) citing State v. Grunig, 660 N.W.2d 134, 137 (Minn.2003). This rule is “not absolute,” however, and we “may address an issue in the interests of justice if addressing the issue will not work an unfair surprise on a party.” Id. (citing State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989)). But the record must permit us to address such an issue. Minn. R.Crim. P. 29.04, subd. 6; see also Grunig, 660 N.W.2d at 136.

We conclude that the State waived the automobile exception claim by failing to raise it at the district court. Moreover, the record here is not sufficiently developed to allow us to resolve this issue even if we chose to address it. Under the automobile exception to the warrant requirement, “[w]hen probable cause exists to believe that a vehicle contains contraband, the Fourth Amendment permits the police to search the vehicle without a warrant.” State v. Flowers, 734 N.W.2d 239, 248 (Minn.2007) (citing Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999)). The scope of a warrantless search under the automobile exception is “ ‘defined by the object of the search and the places in which there is probable cause to believe [the object] may be found.’ ” California v. Acevedo, 500 U.S. 565, 579-80, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (quoting United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)); see also Ross, 456 U.S. at 825, 102 S.Ct. 2157 (stating that the scope of a warrantless automobile search extends as far as “a magistrate could legitimately authorize by warrant”). Thus, whether probable cause existed to search the trunk of Gauster’s vehicle depends in part on whether Wagner discovered the pipe in the passenger compartment of the vehicle before or after he searched the trunk.

Wagner testified at the omnibus hearing that he discovered the pipe during his initial search of the passenger compartment of the vehicle and that he then searched the trunk. But Gauster testified that during the inventory search, Wagner first found bottles in Gauster’s passenger compartment, then searched the trunk— where he found what he believed to be methamphetamine — and then returned to the passenger compartment of the vehicle and found the pipe under Gauster’s front seat. Because the record was not developed on this fact issue, and because the district court did not make a finding of fact regarding when the pipe was found, we conclude that the State cannot now raise the automobile exception argument. We reach this conclusion because the record was not sufficiently developed for us to decide whether the State met its burden of proving that the exception applied in this case. For all the foregoing reasons we hold that the State waived its argument that the search of Gauster’s vehicle was justified under the automobile exception to the warrant requirement.

Reversed and remanded to the district court for further proceedings consistent with this opinion.

MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

DIETZEN, J., took no part in the consideration or decision of this case.

      . Gauster testified that Wagner told him to put the beer in the trunk, but Wagner testified that it was Gauster who asked if he could put the beer in the trunk.

      . Failure to produce proof of vehicle insurance is a different offense than a failure to have vehicle insurance. See Minn.Stat. § 169.797 (2006). While failure to provide proof of insurance is a strict liability crime, Minn.Stat. § 169.791, subd. 2 (2006), failure to have vehicle insurance has an element of scienter and is only a crime if the owner "knows or has reason to know” that the vehicle is not insured. Minn.Stat. § 169.797, subd. 2.

      . Further, no Minnesota statute authorizes the police to impound a vehicle merely because the driver’s license is suspended. And we made clear in State v. Askerooth that "lack of a driver's license, by itself, is not a reasonable basis for” subjecting the driver to a custodial arrest for a minor traffic offense. 681 N.W.2d 353, 365 (Minn.2004); see also id. at 373 (R.A. Anderson, J., concurring specially) (stating that Minn. R.Crim. P. 6.01 limitations on full custodial arrests for misdemeanors "have long been enforced through exclusionary rules”). According to Professor LaFave, courts in most jurisdictions hold that when a "driver is only ticketed but cannot himself operate the car because of an expired license, impoundment of the vehicle is improper unless the driver is ‘unable to provide for its custody or removal.' ” 3 Wayne R. LaFave, Search and Seizure § 7.3(c), at 617 (4th ed.2004) (citations omitted). Moreover, after issuing a citation for failure to provide proof of insurance, police typically let drivers drive their vehicles away. See State v. Reese, No. A06-321, 2007 WL 1128815, at *6 (Minn.App. Apr. 17, 2007).

      . Our conclusion is supported by the reasoning of Professor LaFave, who argues that, before impounding a vehicle, an officer should be required "(i) to advise the arrested operator 'that his vehicle will be taken to a police facility or private storage facility for safekeeping unless he directs the officer to dispose of it in some other lawful manner,’ and (ii) to comply with any reasonable alternative disposition requested.” 3 Wayne R. LaFave, Search and Seizure § 7.3(c), at 621 (4th ed.2004) (footnote omitted). LaFave emphasizes that the police should not be expected "to make any other disposition which would be more onerous than having the vehicle brought to the station,” but that reasonable requests, such as allowing a passenger to drive the vehicle, leaving the vehicle at the scene if it is lawful to do so, or even, if the vehicle is brought to the station with the arrestee, allowing the arrestee the opportunity to make arrangements for a friend to pick up the vehicle. Id. at 621-22. LaFave asserts:
      Such alternative means of disposition serve not only to protect the arrestee's possessory and privacy interests in the vehicle but also to relieve the police of continuing responsibility for the car and its contents, and thus are to be preferred over impoundment when one such alternative has been requested by a properly-advised arrestee and can reasonably be accomplished under the circumstances.

        Id. at 622.


author: PAGE, Justice.

text:
    Philip VANCE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-1552.
    Supreme Court of Minnesota.
    July 10, 2008.

      Philip Vance, MCF-Stillwater, Bayport, MN, for Pro Se Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, James C. Backstrom, Dakota County Attorney, Kevin J. Golden, Assistant County Attorney, Hastings, MN, for Respondent.
   OPINION

PAGE, Justice.

Appellant Philip Vance appeals the district court’s summary denial of his petition for postconvietion relief. We affirm.

Vance was convicted in 2004 of the December 22, 2002, murder of Khaled Al-Bakri. In his direct appeal, Vance asserted that the district court erred by (1) excluding alternative-perpetrator evidence and reverse-Spreigl evidence; (2) allowing, without providing a cautionary instruction, testimony that State witnesses were fearful; (3) failing to give an instruction regarding unredacted police statements that suggested Vance was untruthful; and (4) excluding a letter from Al-Bakri’s brother to a witness for the State. See State v. Vance, 714 N.W.2d 428, 436-44 (Minn. 2006). Vance also claimed that he had newly discovered evidence in the form of a recantation by a witness for the State and that the prosecutor committed misconduct by crying during the trial and closing arguments. Id. at 444. We found no prejudicial errors and affirmed the conviction. Id.

In May 2007, Vance filed a petition for postconviction relief with the district court. The district court summarily denied the petition, concluding that “[t]he claims in the petitions were either raised and decided on appeal already, or were known and not raised at the time of appeal.” Additionally, according to the district court, Vance’s claims for relief “are baseless, lack specificity and are without merit.”

Vance argues on appeal that he is entitled to postconviction relief based on (1) ineffective assistance of trial and appellate counsel; (2) newly discovered evidence of witness recantation; (3) the insufficiency of the indictment in light of recanted witness testimony; (4) prosecutorial misconduct; (5) failure to submit his charge pursuant to Minn.Stat. § 609.11 (2006) to the grand jury or the jury; and (6) cumulative errors preventing him from receiving a fair trial. He further argues that the district court abused its discretion by denying him an evidentiary hearing. We affirm.

I.

When reviewing postconviction proceedings, we are to “ ‘extend a broad review of both questions of law and fact.’ ” Butala v. State, 664 N.W.2d 333, 338 (Minn.2003) (quoting State ex rel. Pittman v. Tahash, 284 Minn. 365, 368, 170 N.W.2d 445, 447 (1969)). We review legal issues de novo, but our review of factual matters is limited to whether there is sufficient evidence in the record to sustain the postcon-viction court’s findings. Id. A petitioner has the burden of establishing by a preponderance of the evidence facts that would warrant relief. Blom v. State, 744 N.W.2d 16, 17 (Minn.2007).

A postconviction court is required to hold an evidentiary hearing only when there are disputed material facts that must be resolved to determine the merits of the postconviction claims. King v. State, 562 N.W.2d 791, 794 (Minn.1997). In reviewing a postconviction court’s denial of relief without an evidentiary hearing, “we resolve any doubts about whether an evidentiary hearing is required in favor of the petitioner.” Patterson v. State, 670 N.W.2d 439, 441 (Minn.2003). However, no evidentiary hearing is required if the petition and record conclusively show that the petitioner is not entitled to relief. Id.

“Once a direct appeal has been taken, all claims raised in that appeal, all claims known at the time of that appeal, and all claims that should have been known at the time of that appeal will not be considered in a subsequent petition for postconviction relief.” Leake v. State, 737 N.W.2d 531, 535 (Minn.2007) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). There are two exceptions to this rule: “(1) if a novel legal issue is presented, or (2) if the interests of justice require review.” White v. State, 711 N.W.2d 106, 109 (Minn.2006).

II.

Vance argues that he received ineffective assistance of both trial and appellate counsel. Claims of ineffective assistance of counsel involve mixed questions of law and fact, which we review de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003). A petitioner is entitled to an evidentiary hearing to develop the facts supporting his ineffective assistance claims only if he alleges facts in the petition that, if proved, would “affirmatively show that his attorney’s representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different.” Wilson v. State, 582 N.W.2d 882, 885 (Minn.1998). If no further facts need to be developed, the claim should be raised on direct appeal. See Robledo-Kinney v. State, 637 N.W.2d 581, 585 (Minn.2002).

Vance first contends that he did not receive a fair trial due to the ineffective assistance of trial counsel, based on his trial counsel’s failure to conduct an investigation, to talk to any witnesses, and to call any witnesses to testify on his behalf. However, Vance has not alleged facts that, if proved, would “affirmatively show that his attorney’s representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different.” Wilson, 582 N.W.2d at 885. Thus, the postconviction court was not required to hold an eviden-tiary hearing to develop the record. Id.

The essence of Vance’s claim is that his trial counsel did not interview or otherwise talk to a number of the State’s witnesses before trial. Those witnesses include Colleen McManus, Maynard Cross, Eric Griffin, Melissa Stites, Regina Hagerman, Ger-ónimo Estrada, Isaac Hodge, John Nunn, Dontay Reese, Tyrone Crawford, and Kathleen Johnson. Vance does not explain, however, how the failure to interview or otherwise talk to these witnesses before trial resulted in prejudice to him, nor is it apparent from the record. Nor does Vance explain how prejudice could have resulted, considering that his trial counsel conducted cross-examinations of the State’s trial witnesses, including Mc-Manus, Griffin, Stites, Hagerman, Hodge, Nunn, Reese, and Crawford. Absent such explanations, we conclude that Vance has failed to allege facts affirmatively showing that, but for his trial counsel’s alleged errors, the result of his trial would have been different. Therefore, there is no basis to conclude that his trial counsel was ineffective with respect to this claim.

Further, the allegations that Vance’s trial counsel failed to conduct an investigation, talk to any witnesses, and call any witnesses to testify are all claims the underlying facts of which Vance either knew or should have known at the time of his direct appeal. Because Vance either knew or should have known of the claims at the time of his direct appeal and the claims could have been adjudicated on the basis of the trial record and briefs, the claims are barred under the rule set out in Knaffla, 309 Minn, at 252, 243 N.W.2d at 741. Therefore, Vance’s ineffective-assistance-of-trial-counsel claim fails.

Vance also argues that his appellate counsel was ineffective for failing to raise on direct appeal his trial counsel’s ineffective assistance. When a petitioner bases his ineffective-assistance-of-appellate-counsel claim on appellate counsel’s failure to raise an ineffective-assistance-of-trial-eounsel claim, he first must show that trial counsel was ineffective. Zenanko v. State, 688 N.W.2d 861, 865 (Minn.2004). Here, as noted above, Vance has failed to make such a showing. We therefore conclude that Vance’s ineffective-assistance-of-appellate-counsel claim fails.

III.

Vance next asserts that John Martin and Dontay Reese, two of the State’s trial witnesses, have, by affidavit, recanted part of their trial testimony. Although evidentiary hearings usually are necessary to evaluate the reliability of the recantation, there must be sufficient “indi-cia of the trustworthiness” of the recantation to merit a hearing. State v. Ferguson, 742 N.W.2d 651, 660 (Minn.2007).

We conclude that Vance is not entitled to an evidentiary hearing based on his claim of recanted testimony. With respect to Martin’s affidavit, we do not believe there are sufficient “indicia of the trustworthiness” of his recantation. Id. The recantation comes several years after the murder and after Martin has testified under oath. At trial, Martin testified that he met Vance and Dominic Johnson at the Radisson bar in downtown St. Paul around 7 or 8 p.m. on December 22, 2002. According to Martin’s testimony, while neither Vance nor Johnson mentioned a robbery or going to South St. Paul, “[Vance and Johnson] made a phone call to go to South St. Paul * * * on [their] way to leave.” Vance and Johnson told Martin that they were calling “Yvonne and Nicole,” whom Johnson called the “South St. Paul girls.” The three men left the bar around 8:30 or 9 p.m. Before getting on his bus, Martin saw Yvonne and Nicole’s car, a dark blue four-door Corsica, come around the block. In his affidavit, Martin states that, contrary to his testimony, the day he was with Vance and Johnson at the Radis-son bar was not a Sunday, which means it could not have been the night of the shooting. According to Martin, he now remembers — after talking to Vance — that he and Vance discussed going to a liquor store, so they could not have met at the Radisson bar on December 22, 2002, which was a Sunday. There is no explanation, however, as to why his memory is better now than it was at the time of trial. Further, at least one other witness at trial testified that Vance was present at the Radisson bar on Sunday evening, December 22, 2002. No part of that witness’s testimony has been recanted.

We likewise do not believe there are sufficient indicia of trustworthiness in Reese’s affidavit to merit a hearing. Reese testified at trial that, while he and Vance were incarcerated at the Dakota County jail, Vance had admitted to him details of how the shooting of Al-Bakri occurred. In his affidavit, Reese now states that Vance never confessed to the murder and that Reese made up the details set out in his testimony from talking with Vance about witnesses that they both knew who were involved in the murder investigation and from reading Vance’s “court transcript involving his charges” that was filed in the jail library. Reese further states that, in order to get time reduced from his incarceration, he lied when he testified that Vance confessed to the murder. However, Reese’s assertion regarding reading the transcript in the jail library is vague, and it is not clear how he would have read a transcript before testifying at trial. Moreover, Hodge, Nunn, and Estrada, who were incarcerated with Vance, provided testimony corroborating Reese’s trial testimony. Therefore, Reese’s recantation is not reasonably trustworthy, and the postconviction court did not err in not holding an evidentiary hearing.

We also conclude that Vance is not entitled to a new trial based on Martin’s and Reese’s affidavits. To obtain a new trial on the basis of recanted testimony, three requirements must be met. Pippitt v. State, 737 N.W.2d 221, 226 (Minn.2007). First, the court must be “ ‘reasonably well-satisfied’ ” that the recanted testimony was false. Id. at 226-27 (quoting Opsahl v. State (Opsahl I), 677 N.W.2d 414, 423 (Minn.2004) (emphasis added)). We have said that a court must be “ ‘reasonably certain that the recantation is genuine’ ” before this first prong is met. Opsahl v. State (Opsahl II), 710 N.W.2d 776, 782 (Minn.2006) (quoting State v. Walker, 358 N.W.2d 660, 661 (Minn.1984)). Second, the petitioner must show that the jury might have reached a different conclusion without the recanted testimony. Pippitt, 737 N.W.2d at 227. Third, the petitioner must show that he was taken by surprise at trial or did not know of the falsity until after trial. Id. The first two requirements are compulsory, but the third is not. Id.

Here, neither Martin’s nor Reese’s alleged recantation satisfies the second requirement set out in Pippitt. Vance has not shown that, absent Martin’s testimony, the jury might have reached a different conclusion. Martin was not the only one to testify that Vance was at the Radisson bar the night of the murder, as at least one other witness also placed him there. Stites, the head bartender at the Radisson bar, testified that Vance, Johnson, and a third man came into the bar around 7:30 p.m. on December 22, the night of the murder. Interestingly, the affidavit submitted by Townsend in this postconviction proceeding also places Vance at the Radis-son bar on December 22. Moreover, Griffin testified that he talked to Vance at The Buttery bar in St. Paul sometime after 10 p.m. on December 22, at which time Vance told him “he had did a robbery and it had gone bad, and the guy he was robbing, he had f — ed him up.” McManus, the night manager at The Buttery, testified that Vance and Johnson arrived at the bar sometime between 10:15 and 10:30 on the night of December 22. She further testified that Vance indicated to her through motions that he had shot someone. Therefore, Vance is unable to show either that absent Martin’s trial testimony or that had Martin testified at trial consistent with his affidavit, the result would have been different. Thus, this claim does not warrant relief.

As for Reese’s affidavit, Reese claims that his testimony was based on having read Vance’s court transcript before he testified at Vance’s trial and not, as he testified, on what Vance told him. At trial, Reese testified that while in the Dakota County jail with Vance before Vance’s trial he had numerous conversations with Vance about Vance’s involvement in a murder. Vance allegedly told Reese that he, Johnson, and Martin had been at a bar and left after Johnson called two women, named Yvonne and Tiffany or Nikki, to get a ride from the bar to Johnson’s cousin’s house. Vance also told Reese that the women drove a blue Corsica or Accord. Vance and Johnson then met another man and went to a “mom-and-pop store,” which Vance and Johnson went inside to rob. During the robbery, Johnson said Vance’s name, so Vance shot the clerk. Vance told Reese he used a “deuce-deuce” to kill the clerk, which Reese interpreted to mean a .22 caliber handgun. With regard to shooting the clerk, Vance told Reese that “it wasn’t supposed to go down like that” and “[Johnson] said my name and it wasn’t supposed to go down like that. I was zooted, I was drunk and I gave the dude five. And then we got the money and got lit.”

Vance has failed to show that the outcome of the trial might have been different absent Reese’s testimony. Several other witnesses testified about interactions they had with Vance in which Vance implicated himself in the murder. In addition to Griffin’s and McManus’s testimony, there was testimony at trial that, in the course of an undercover investigation, Vance admitted to Stites that he “shot a guy in the back five times” on the “south side” 2 weeks before their conversation. As noted above, Hodge, Nunn, and Estrada also testified that, while incarcerated with Vance, he told them separately about his involvement in the murder-robbery. Tellingly, Estrada testified that Vance specifically told him what had been taken from the store during the robbery, the list of which matched the actual items taken and, according to law enforcement, had not been publicly disclosed during the investigation. In light of this evidence, we cannot conclude that the jury might have reached a different result without Reese’s trial testimony. As a result, Vance has not shown that he is entitled to relief.

Therefore, we conclude that the postcon-viction court did not err when it denied Vance a hearing on the recanted testimony of Martin and Reese. We also hold that Vance is not entitled to a new trial on the basis of this recanted testimony.

IV.

Next, Vance claims that he has newly discovered evidence in the form of affidavits suggesting either that some of the witnesses at his grand jury proceedings and trial lied or that Vance was not involved in Al-Bakri’s murder. A petitioner who asserts that he is entitled to a new trial based on newly discovered evidence must show that:

(1) the evidence was not known to him or his counsel at the time of trial; (2) the failure to learn of the new evidence was not because of a lack of diligence; (3) “the evidence is material (or as we have sometimes said, is not impeaching, cumulative or doubtful)”; and (4) the evidence will probably produce an acquittal at a retrial or a more favorable result for the [petitioner],

Pippitt, 737 N.W.2d at 226 (quoting Race v. State, 417 N.W.2d 264, 266 (Minn.1987)). The burden of proof for a postconviction evidentiary hearing is lower than the burden for new trial. See Wilson v. State, 726 N.W.2d 103, 107 (Minn.2007).

The affidavits come from Maynard Cross, Michael White, Edward Townsend, and Trevor Crawford. We need not, however, detail the information contained in the affidavits to resolve Vance’s claim because Vance has failed to show that the information alleged to constitute new evidence in these affidavits was not known to him or his counsel at the time of trial or that the failure to learn of that information was not due to a lack of diligence. Because Vance failed to make such a showing, his claim fails. See Pippitt, 737 N.W.2d at 226. We therefore conclude that the postconviction court did not err when it denied Vance relief on his newly discovered evidence claim.

V.

Vance also asserts that he is entitled to postconviction relief for a host of other reasons. First, he claims that the prosecutor committed misconduct when she (1) inflamed the passions of the jury during her closing argument by commenting on Vance’s failure to testify or provide an alibi; (2) commented on the State’s witnesses’ fear of Vance and how Vance disrupted the lives of the witnesses; (3) withheld exculpatory evidence; and (4) and misstated evidence. Second, he claims that the trial court erred when it failed to submit his charge pursuant to Minn.Stat. § 609.11 to the grand jury or the jury. Third, he argues that cumulative errors prevented him from receiving a fair trial. Our review of the record leads us to conclude that all of these claims were either known or should have been known to Vance at the time of his direct appeal but were either not raised or were not raised successfully. Thus, each of these claims is barred under Knaffla. Neither exception to the Knaffla rule applies to any of these claims. None of the claims involves legal issues so novel that they were unavailable at the time of direct appeal, and our review of the record satisfies us that the interests of justice do not require review. Therefore, the postconviction court did not err in denying relief on these claims.

Because Vance has failed to show that he is entitled to postconviction relief on any of his claims, we affirm the summary denial of his petition for postconviction relief.

Affirmed.

MAGNUSON, G.J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.

      . The facts surrounding the murder are detailed in this court’s opinion affirming Vance’s conviction. See State v. Vance, 714 N.W.2d 428 (Minn.2006).

      . In a document titled "Amendment to Post Conviction” filed with this court on November 20, 2007, Vance argues that his trial counsel violated lawyer-client confidentiality and therefore provided ineffective assistance of counsel. However, Vance did not raise this issue before the postconviction court, and the facts asserted in support of the argument have not been considered by the postconviction court. Therefore, we decline to address it here. See Azure v. State, 700 N.W.2d 443, 447 (Minn.2005).

      . It is not clear what Reese is talking about when he references court transcripts. However, if the State is correct as to the date on which it claims the court transcripts were prepared, it appears that Reese could not have read the transcripts before testifying as he claims. Thus, it is not clear that Reese’s trial testimony was false.

      . Because we conclude that Cross's affidavit does not entitle Vance to postconviction relief, as it does not meet the test for recanted testimony, we also conclude that Cross's affidavit does not render Vance’s indictment insufficient. See Opsahl II, 710 N.W.2d at 782 (stating that “a simple statement contradicting earlier testimony” fails to meet the first prong of the test for recanted testimony).

      . We note that Vance's claim for relief also fails under the falsified testimony analysis because we are not reasonably well-satisfied that the testimony from those witnesses was false or that the “newly discovered” evidence in the form of affidavits is genuine. See Pippitt, 737 N.W.2d at 226-27; Opsahl II, 710 N.W.2d at 782. Further, Vance has failed to show that the jury might have reached a different conclusion without the alleged false testimony. See Pippitt, 737 N.W.2d at 227.


author: /s/ Helen M. Meyer Associate Justice

text:
    Trudy L. ADAMS, Relator, v. HORMEL FOODS CORPORATION, Self-Insured, Respondent, and Blue Cross & Blue Shield of Minnesota, Mayo Foundation, and Hormel Foods Corporation, Intervenors.
    No. A08-236.
    Supreme Court of Minnesota.
    July 16, 2008.
    Donaldson V. Lawhead, Austin, MN, for Relator.
    Mary E. Kohl, Stacey A. Molde, Johnson & Condon, PA, Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed January 8, 2008, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[sjummary affirmances have no precedential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

BY THE COURT:

/s/ Helen M. Meyer Associate Justice