State v. Green, No. A04-1657 (MN 8/23/2005), A04-1657.

• Decision Date: 23 August 2005
• Docket Number: No. A04-1657.,A04-1657.
• Parties: State of Minnesota, Respondent, v. Valiant M. Green, Appellant.
• Court: Minnesota Supreme Court

Page 1

Unpublished Opinion

State of Minnesota, Respondent, v. Valiant M. Green, Appellant.

No. A04-1657.

Court of Appeals of Minnesota.

Filed August 23, 2005.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

Appeal from the District Court, Hennepin County, File No. 04022879.

Mike Hatch, Attorney General, and Jay M. Heffern, Minneapolis City Attorney, Judd Gushwa, Assistant City Attorney, (for respondent)

Leonardo Castro, Fourth District Public Defender, Paul J. Maravigli, Assistant Public Defender, (for appellant)

Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

UNPUBLISHED OPINION

RANDALL, Judge

On appeal from conviction for misdemeanor driving after cancellation, giving false information to police, and having no proof of insurance, appellant argues that the statute prohibiting the suspension of objects between the driver and the windshield: (a) is unconstitutionally overbroad, (b) violates equal protection because it allows police to suspend objects in the same locations, and (c) produces an absurd result. We affirm.

FACTS

On April 7, 2004, at approximately 8:10 a.m., Officer Hatle of the Minneapolis Police Department observed a 1993 Chevrolet Cavalier proceeding northbound on Hennepin Avenue. Because Officer Hatle noticed that the vehicle had a pine tree air-freshener hanging from the rearview mirror, in violation of Minn. Stat. § 169.71, subd. 1 (2004), he stopped the vehicle. The driver of the vehicle, later identified as appellant Valiant Green, initially told the officer that he did not have his driver's license with him. Appellant also provided Officer Hatle with a false name and failed to provide proof of insurance of the vehicle. Subsequent investigation revealed that appellant was driving despite having a cancelled driver's license.

Appellant was charged with providing false information to police, driving after cancellation of his driver's license, and failure to provide proof of insurance. Appellant subsequently moved to suppress the evidence obtained as a result of the stop on the basis that Minn. Stat. § 169.71, subd. 1, which was the sole basis for the traffic stop, is unconstitutional. The district court denied the motion and, following a trial on stipulated facts, found appellant guilty of the charged offenses. This appeal followed.

DECISION

The constitutionality of a statute presents a question of law, which this court reviews de novo. State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999). Minnesota statutes are presumed to be constitutional, and a court's power to declare a statute unconstitutional "should be exercised with extreme caution and only when absolutely necessary." State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998). A party challenging a statute has the burden of demonstrating beyond a reasonable doubt that the statute is unconstitutional. Id.

I.

Appellant argues that Minn. Stat. § 169.71, subd. 1 (2004), is unconstitutionally overbroad. This statute provides:

No person shall drive or operate any motor vehicle with a windshield cracked or discolored to the extent to limit or obstruct proper vision, or, except for law enforcement vehicles, with any objects suspended between the driver and the windshield, other than sun visors and rear vision mirrors, or with any sign poster, or other nontransparent material upon the front windshield, sidewings, side or rear windows of such vehicle, other than a certificate or other paper required to be so displayed by law, or authorized by the state director of the division of emergency management, or the commissioner of public safety.

Minn. Stat. § 169.71, subd. 1.

Overbroad restrictions of expression are unconstitutional. New York v. Ferber, 458 U.S. 747, 769, 102 S. Ct. 3348, 3361 (1982). The doctrine of overbreadth, facially invalidating entire statutes, is "strong medicine" and should be applied cautiously. Osborne v. Ohio, 495 U.S. 103, 122, 110 S. Ct. 1691, 1703 (1990) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 2916 (1973)). A statute is unconstitutionally overbroad only when the overbreadth is both real and substantial. Broadrick, 413 U.S. at 615, 93 S. Ct. at 2918. A statute must substantially affect constitutionally protected speech to trigger the overbreadth doctrine. Ferber, 458 U.S. at 773, 102 S. Ct. at 3363. If a statute's legitimate reach "dwarfs its arguably impermissible applications," it is facially valid. Id. at 773, 102 S. Ct. at 3363.

Before a facial overbreadth challenge can be addressed, it must first be determined whether the statute in question implicates the First Amendment. Machholz, 574 N.W.2d at 419. If the First Amendment is not implicated, no further inquiry is necessary because no constitutional question is raised. Id.

Appellant contends that hanging the pine tree air-freshener from his rearview mirror is constitutionally protected speech because "[h]is clear display of a pine tree air freshener serves as a statement to the public about both the aromatic quality of his vehicle's interior, and an aesthetic expression of his appreciation for nature." Although hanging an air-freshener is not a spoken communication, First Amendment protection is not limited to the written or spoken word; it extends to some expressive activity where the activity itself may be communicative. See Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727 (1974) (affixing a peace symbol to a flag was protected expression); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969) (wearing armbands to protest the Vietnam War was constitutionally protected expression). The Supreme Court in Spence formulated the test for determining whether conduct is sufficiently expressive to merit First Amendment protection. 418 U.S. at 410-11, 94 S. Ct. at 2730. The inquiry looks at whether "[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Id.

The Supreme Court has stated: "We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 1678 (1968). We conclude that "car fresheners" are within the "O'Brien ambit."

If appellant was intending to convey a particularized message by hanging the pine tree air-freshener from his rearview mirror, it is unlikely that anyone who viewed the air-freshener would understand appellant's claimed message; that he "appreciates nature and cares about the aroma of his vehicle's interior." The First Amendment is not implicated; no further inquiry is necessary.

II.

The Equal Protection Clause of the Fourteenth Amendment provides, in relevant part, "No [s]tate shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Article I, Section 2, of the Minnesota Constitution provides, "[n]o member of this [s]tate shall be disenfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers." While all similarly situated persons shall be treated alike, "only invidious discrimination is deemed constitutionally offensive." Scott v. Minneapolis Police Relief Ass'n, 615 N.W.2d 66, 74 (Minn. 2000) (quotation omitted). Appellant argues that section 169.71, subd. 1, denies him equal protection of the law because the statute allows law enforcement officers to hang objects from their rearview mirrors, but it prohibits all other individuals from hanging anything from their rearview mirrors. Appellant asserts that strict scrutiny should be applied because the statute involves his fundament right to freedom of expression.

Fundamental rights are those "deeply rooted in this Nation's history and tradition." Moore v. City of E. Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938 (1977); see, e.g., Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394 (1982) (right to familial relations fundamental); Zablocki v. Redhail, 434 U.S. 374, 383-84, 98 S. Ct. 673, 679-80 (1978) (right to marry fundamental); Reynolds v. Sims, 377 U.S. 533, 559-60, 84 S. Ct. 1362, 1380 (1964) (voting rights fundamental). Unless a constitutional challenge to the statute involves a suspect classification or a fundamental right, this court reviews the challenge using a rational-basis standard under both the state and federal constitutions, and the statute will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Scott, 615 N.W.2d at 74.

Here, Minn. Stat. § 169.71, subd. 1, does not involve a fundamental right or a suspect classification. A rational basis scrutiny is applicable. The statute passes rational basis scrutiny. Law enforcement has additional tasks and equipment that is used in the operation of their vehicles, and that includes pieces of equipment that the normal motorist on the highway does not have. There is no discrimination, and the distinctions are not arbitrary, but are based on bona fide employment requirements. For instance, law enforcement may carry...