This opinion will be unpublished and 

may not be cited except as provided by 

Minn. Stat. § 480A.08, subd. 3 (2014). 

STATE OF MINNESOTA 

IN COURT OF APPEALS 

A16-0700 

State of Minnesota, 

Appellant, 

vs. 

Devin Keith Barner, 

Respondent. 

Filed November 21, 2016 

Affirmed 

Rodenberg, Judge 

Hennepin County District Court 

File No. 27-CR-15-28883 

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Michael O. Freeman, Hennepin County Attorney, James R. Hanneman, Assistant County 

Attorney, Minneapolis, Minnesota (for appellant) 

Mary Moriarty, Hennepin County Public Defender, Laura G. Heinrich, Assistant Public 

Defender, Minneapolis, Minnesota (for respondent) 

 Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and 

Rodenberg, Judge. 

U N P U B L I S H E D O P I N I O N 

RODENBERG, Judge 

 The state appeals from the district court’s pretrial order suppressing evidence found 

after respondent’s arrest. The district court determined that the arrest was invalid under 
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Minn. R. Crim. P. 6.01, and it therefore suppressed the evidence seized incident to the 

arrest. The state argues on appeal that the arrest was both constitutional and proper under 

rule 6.01. We affirm. 

FACTS 

 On October 8, 2015, a police officer saw a truck being driven by a person he knew 

to be respondent Devin Barner. From earlier contacts with respondent, the officer had 

learned that respondent did not have a valid driver’s license. He therefore conducted a 

traffic stop, arrested respondent, and searched him. During the search, officers found 

plastic bags containing illegal drugs. The state then charged respondent with drug crimes 

based on the evidence the officers recovered. Respondent moved to suppress the evidence 

seized from him after the traffic stop, arguing that the arrest and search were 

unconstitutional, and that the arrest violated Minn. R. Crim. P. 6.01, which provides that, 

in misdemeanor cases, peace officers must, in the absence of a warrant, “issue a citation 

and release the defendant,” except in identified circumstances.. 

 At the suppression hearing, the arresting officer and respondent testified. A squad 

video of the arrest, with an audio track, was admitted into evidence. The parties agreed 

that the arresting officer had interacted with respondent before the October 8 stop, and that 

the officer had learned during an earlier interaction that respondent’s driver’s license was 

suspended. The officer had warned respondent to get a valid license before driving again. 

The officer testified that his most recent interaction with respondent took place one or two 

weeks before the October 8 stop, during which he confirmed that respondent had not 

obtained a valid driver’s license. 
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 Concerning the October 8 stop, the officer testified that he recognized respondent’s 

truck and was able to identify respondent by sight. The officer signaled respondent to pull 

over, and told his partner that he intended to arrest respondent for driving without a license. 

The squad video shows that the officer approached respondent’s truck, and the officer can 

be heard on the recording’s audio track asking respondent if he had gotten his license yet. 

Respondent’s answer to the question is inaudible on the recording, and the record contains 

no testimony concerning respondent’s reply. The officer arrested respondent. The record 

contains no evidence that, before the arrest, the officer verified respondent’s unlicensed 

status. 

 The district court granted respondent’s motion to suppress, stating that the arrest 

was invalid because it violated Minn. R. Crim. P. 6.01. The state appeals from that pretrial 

order. 

D E C I S I O N 

The pretrial ruling had a critical impact 

 “When the state appeals a pretrial order, it must show clearly and unequivocally 

(1) that the ruling was erroneous and (2) that the order will have a ‘critical impact’ on its 

ability to prosecute the case.” State v. McLeod, 705 N.W.2d 776, 784 (Minn. 2005) 

(quoting State v. Anderson, 683 N.W.2d 818, 821 (Minn. 2004), and State v. Richardson, 

622 N.W.2d 823, 825 (Minn. 2005)); see also Minn. R. Crim. P. 28.04, subd. 2(2) (setting 

out the procedure for the state to appeal a pretrial order). 

The parties agree that the district court’s pretrial suppression order has a critical 

impact on the state’s ability to prosecute the case. The evidence necessary to show that 
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appellant committed a drug crime has been suppressed, leaving the state with insufficient 

evidence to proceed to trial. The state has demonstrated critical impact entitling it to appeal 

pretrial. 

Standard of review on appeal 

The parties disagree on the standard of review we should apply to the district court’s 

suppression order for what it determined was a violation by the state of Minn. R. Crim. P. 

6.01. The state argues that we should defer not to the district court in its rule 6.01 

determination, but should instead defer to the officer’s opinion when deciding whether the 

warrantless arrest for committing a misdemeanor “reasonably appeared” to fall under an 

exception to Minn. R. Crim. P. 6.01. Respondent argues that we should defer to the district 

court in all matters, including errors of law. 

We need not reach the questions of whether rule 6.01 prohibits the arrest, or what 

would be the proper remedy for a rule 6.01 violation, because we conclude that the arrest 

was without probable cause in violation of the Fourth Amendment of the United States 

Constitution and article 1, section 10 of the Minnesota Constitution. 

Respondent preserved the constitutional issues

 Respondent argues on appeal that his arrest was both unconstitutional and in 

violation of Minn. R. Crim. P. 6.01. Appellant argues that respondent forfeited any claim 

that the stop and arrest violated the Fourth Amendment of the United States Constitution 

and article 1, section 10 of the Minnesota Constitution because those issues were not raised 

to the district court. We “generally will not decide issues which were not raised before the 
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district court, including constitutional questions of criminal procedure.” Roby v. State, 547 

N.W.2d 354, 357 (Minn. 1996). 

The record shows that respondent argued to the district court that the stop and search 

were unconstitutional. Respondent argued at the suppression hearing that “it’s clear that 

the officers did violate [appellant’s] constitutional rights by making this, in my opinion, 

unjustified stop and search and arrest right away.” The constitutionality of the stop and 

arrest were preserved. 

The traffic stop was supported by reasonable and articulable suspicion 

We next consider whether the traffic stop was proper. The Fourth Amendment of 

the United States Constitution and article 1, section 10 of the Minnesota Constitution both 

protect the “right of the people to be secure in their persons, houses, papers, and effects” 

against “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, 

§ 10. The United States Supreme Court has held that the Fourth Amendment requires an 

officer to have “a reasonable, articulable suspicion that criminal activity is afoot” in order 

to “conduct a brief, investigatory stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 

673, 675 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85 (1968)). 

The Minnesota Supreme Court has held that this same standard applies when evaluating 

“the reasonableness of searches and seizures during traffic stops even when a minor law 

has been violated.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quotation 

omitted). This standard “is not high” and, while it is less than the probable cause standard, 

it still requires “at least a minimal level of objective justification for making the stop.” Id. 

(quotation omitted). 
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Respondent does not dispute the state’s claim that the arresting officer had learned 

one or two weeks before the October 8 stop that respondent did not have a valid driver’s 

license. The only dispute is whether, based on these facts, the officer had a reasonable 

suspicion to stop respondent. The fact that the officer had recently confirmed that 

respondent did not then have a valid license and then saw respondent driving a truck was 

sufficient to support a reasonable, articulable suspicion that respondent was driving without 

a valid license. Therefore, the stop was constitutional. 

The officer lacked probable cause to arrest appellant

Finally, we turn to whether the officer had probable cause to arrest respondent. An 

officer has probable cause to arrest a person when “objective facts are such that under the 

circumstances a person of ordinary care and prudence would entertain an honest and strong 

suspicion that a crime has been committed.” State v. Wynne, 552 N.W.2d 218, 221 (Minn. 

1996) (quotation omitted). Officers cannot use the fruits of their search to justify it. Rios 

v. United States, 364 U.S. 253, 261-62, 80 S. Ct. 1431, 1436 (1960) (holding that after an 

arrest occurred “nothing that happened thereafter could make that arrest lawful, or justify 

a search as its incident”). An officer may arrest a person who commits a “public offense” 

in the officer’s presence. Minn. Stat. § 629.34, subd. 1(c)(1) (2014). This includes 

misdemeanor offenses “committed or attempted in the officer’s presence.” State v. 

Richmond, 602 N.W.2d 647, 653 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000). 

 Here, the officer based the arrest on his previous knowledge that respondent did not 

have a valid driver’s license as of several weeks before October 8. The squad video shows 

the officer approach respondent’s vehicle, and he can be heard asking respondent whether 
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he had gotten a valid license yet. There is no recording of respondent’s reply. As the 

district court found, the response is inaudible. Neither the officer nor respondent testified 

to what respondent said in response to the question. The officer made no claim that he 

verified respondent’s unlicensed status before the arrest. The only record evidence 

supporting the arrest of respondent is the officer’s knowledge that respondent did not have 

a valid license one or two weeks before the arrest. While this is sufficient to support a 

reasonable suspicion that respondent was driving without a license, it is well short of 

probable cause to arrest respondent. At a minimum, the officer would have needed some 

confirmation, either by respondent’s admission or by consulting official driver’s license 

records, that respondent was in fact unlicensed. The record contains nothing to have 

confirmed respondent’s unlicensed status before he was arrested. Therefore, and on this 

record, the arrest was without probable cause and unconstitutional. The arrest is the only 

basis advanced by the state as having justified the search of appellant. That officers later 

confirmed respondent’s suspected unlicensed status and found evidence of drugs in the 

search conducted after the arrest does not justify the search. 

 Because respondent’s arrest was unconstitutional, the evidence seized pursuant to it 

must be suppressed. State v. Harris, 590 N.W.2d 90, 97 (Minn. 1999). The district court’s 

suppression order was not in error. 

Affirmed.