*1 hearing requires days tion five notice. DECISION 6.04; Hay- Minn.R.Civ.P. 2A D. Herr & R. The trial court refusing erred to hon- dock, 65.14, Practice at 429 Minnesota § or the shortly notice of removal filed be- (1985). undisputed respondent It is served addition, hearing. fore motion re- appellants Thursday one of on a and spondent give adequate failed to notice of hearing following held on the Mon- hearing, and appellants did not waive day. Appellants days entitled to five pro the notice defect appearing se at thе Respondent argues notice. if one hearing. Thursday, Friday, Saturday, counts Sun- Reversed and remanded. day, Monday, appellants then received days five notice. When less than seven
days required, notice is intermediate Satur- legal
days, Sundays, holidays are ex- Also, you
cluded. Minn.R.Civ.P. 6.01. day computa- count service Thus, calculatiоn, proper
tion.
appellants only days received two notice. comply This notice does not Rule with 6.04. Minnesota, STATE of CITY OF Appellants days only received two PAUL, Appellant, ST. appeared Ap notice and without counsel. pellаnts’ appear counsel was unable to LYNCH, hearing legitimate Joseph Respondent. because of a sched John uling appel conflict. The trial court denied No. C2-91-819. request Appel lants’ for a continuance. prejudiced by resрondent’s lants were fail Appeals Court of of Minnesota. comply Appellants, ure to Rule 6.04. Nov. se, acting pro did not day waive the five requirement by notice appearing at
Monday hearing attempting argue to position
their when their motion of a con
tinuance was denied.
Although appellants were able countermotion, hastily prepare their
right adequate notice was violated. respondent’s days motion on two
Hearing appellant’s right pro
notice violated to due comply
cess. Failure to with notice re
quirements temporary injunction may for a process. due Granny
violate Goose
Foods, Inc. v. Brotherhood Teamsters 432 n. 94 S.Ct. n.
7,
quirement contained the Federal Rules
implies hearing which the defendant is
given opportunity oppose a fair the mo prepare opposition. for such
tion and to day may
Id. This court has held one notice provide party enough prepare time to Sudheimer,
opposition. Sudheimer (Minn.App.1985). 794-95 Giv notice,
en the defect in the trial court erred
by hearing the motion on its merits. *2 Gen., III, Humphrey, Atty. H.
Hubert McPeak, City Atty., Virgi- A. St. Paul Jane Paul, Palmer, Atty., Deputy City nia D. St. appellant. for Sand, Danielson, A. Michellе M. Richard . Paul, respondent. St. KLAPHAKE, and decided
Considered LOMMEN,* P.J., CRIPPEN and JJ. OPINION CRIPPEN, Judge. pretrial appeal
This is a the state 28.04, pursuant to Minn.R.Crim.P. subd. 1(1) suppressing from an order incrimina- ting by respondent. statements made
FACTS 15, 1990, at 1:45 On November a.m., Jeffery Paul Hutch- St. Police stopped respondent John inson through seeing him drive charged sign. Lynch subsequently gross prostitution, mis- 609.324, demeanor, Minn.Stat. subd. § (1990), possessing a small amount vehicle, marijuana in motor a misdemean- 152.027, or. Minn.Stat. subd. 3 § pretrial proceedings, respondent suppress evidence of an answer moved gave questions of Officer Susan during following detention Drutschmann stop. Officer Hutchinson’s Neither Officer Drutschmann had Hutchinson nor Officer given respondent warning be- this statement was made. The trial fore statement, suppressed Lynch’s con- cluding subjеcted to a cus- interrogation and a fifth todial had amend- right ment to receive Miranda questioned Officer Drutschmann him.
Relevant to the trial court’s conclusion subjected to a custodial interrogation, the record reveals these addi- tional facts: Const, VI, court, acting judge § as art. of the district Minn. *Retired Appeals by appointment judge of the Court a) initially Hutchinson When Officer ISSUE immediately stopped Lynch, he noticed that clearly Did the trial court err conclud- prostitute. Lynch’s passenger was a known respondent subjected to a *3 interrogation? custodial b) car, Lynch stopped As soon as his passenger put his Officer Hutchinson saw something underneath her seat. She then ANALYSIS
jumped out of the car and started scream- law, rеviewing questions When of Lynch not let her out of that would his normally we need not defer to the trial argument car. The state noted at oral that court’s decision. v. Rod Baxter Durfee “typical” “prostitu- this was conduct for a Inc., 349, (Minn. Imports, 354 tion” case аnd a officer could have 1977). pretrial appeal, On the state’s how stopped Lynch prostitution. for ever, we are not free to reverse the trial c) While Officer Hutchinson adminis- suppress Lynch’s court’s decision to state search, pat-down Lynch tered a he told that merely ment because this court would de passenger Lynch said would not let her Instead, differently. cide the case must we engaging in out of his car and that that affirm unless the state demonstrates type activity felony. was a “clearly unequivocally” that the trial judgment court erred in its
d) that unless A few minutes after Officer Hutchin- reversed, the error critical im will have a stopped Lynch, son Officer Drutschmann pact on outcome of the trial. v. the State arrived on the sсene. She told Officer Kim, 544, Kyu 398 547 Joon N.W.2d stopped Lynch Hutchinson that she (Minn.1987) Webber, (citing v. 262 State an hour earlier and issued two cita- .him 157, (Minn.1977)). N.W.2d 159 stopped Lynch tions. earlier When she night, driving she warned him about Supreme promulgated Court Mi- looking prostitutes around for and she then practice procedural safeguard as a randa suggested go that he home. At scene against suspect’s violation of a fifth stop, of the second Officer Drutschmann right against amendment self-incrimina- began question Lynch pres- out of the Arizona, 384 tion. Miranda v. State of ence of Officer Hutchinson. She first said 436, 694 U.S. 86 S.Ct. L.Ed.2d respondent, thought you going “I applies elic- The rule to statements asked, your home?” then “what is She during interrogation,” ited “custodial which story?” Following ques- side of the these questioning by police officers “after a is tions, Lynch pas- stated that he offered his person custody has been taken into or oth- senger marijuana five dollars and some for deprived erwise of his freedom of action questioned Lynch she a sеx act. When 444, significant way.” any Id. at 86 S.Ct. stop, this second Officer Drutsch- (footnote omitted). at 1612 mann Hutchinson did know Officer 420, McCarty, Berkemer v. stopped Lynch driving through stop for 3151-3152, 104 82 L.Ed.2d sign. (1984), Supreme 317 Court held that the e) admission, Lynch’s After questioning prearrest roadside of a defen- Ap- proceeded Drutschmann to arrest him. stop dant to a routine traffic did proximately elapsed 15 minutes between interrogation” not constitute “custodial Lynch stopped Officer Hutchinson time purposes for of the rule. The Miranda until the time was arrested. Court reasoned that the detainee in an ordi- f) ques- nary brevity Drutschmann because of the While Officer view, stop searched and its occurrence in Lynch, tioned Officer Hutchinson pressure is not under sufficient to make thе interior of car discovered rights marijuana. It is evident on his constitutional neces- .05 ounce of 437-38, 3149; being sary. at 104 Lynch could see that the car was S.Ct. at see searched and knew Officer Hutchinson also State N.W.2d (Minn.1986)(police interroga- marijuana in the car. officer’s brief would find Lynch, she unaware had been patrol in his of the defendant tion stop initially stopped not custodial for a traffic offense. the scene a traffic Seekon, State interrogation); cf. ques- The trial also concluded that (when po (Minn.App.1986) interroga- tioning of respondent constituted is person in a car who lice officers The court tion Miranda purposes. for law offi committing felony, suspected of question was asked a found a give warning аt time must cers germane to two offenses with which pet. any questioning), of initial question charged. He asked 17, 1986). (Minn. Oct. rev. denied concerning traffic violation. Berkemer to man We not understand *4 interrogation express An includes stop more date Mirandа warnings any on po by and questioning and words actions stop. Sim intrusive than a routine traffic officers, police “the should know lice which Miranda in some ilarly, although cases to incrimina reasonably likely are elicit an no stops, traffic there is apply does not to Innis, Rhode response.” Island ting stops are suggesting that all precedent 1682, 1689-90, 291, 301, 100 S.Ct. 446 U.S. initially by a traf prompted if noncustodial (footnote omitted). (1980) L.Ed.2d 64 297 and Herem fic offense. Both Berkemer inquiry on that a direct The state contends examples stops. The of noncustodial charge was interro prostitution the not an Berkemer cautioned that a motorist contrary, inquiry To a gation. the direct be entitled to Miranda may protections if Berkemer, interrogation. kind is an In this ordinary stop an traffic is followed arrest, police asked the the officer practically rendering person the treatment germane to the questions the defendant Berkemer, 440, 104 custody. 468 at in U.S. Berkemer, stop. at traffic 468 U.S. 3150. Miranda applies, аt the Court S.Ct. see 3141; also 104 S.Ct. at explained, the motorist’s freedom of when Herem in (police officer “degree action is curtailed to a associated speed, failure to asked about motorist (quoting with formal arrest.” Califor consumption). In stop, and this alcohol Beheler, 1121, 1125, 103 nia v. case, inquiry gross on misde a direct curiam)). (1983) (per germane not to the meanor offense was factors in There were numerous stop. initial prompting offense the in in no detention. We are volvеd addition, err in In the trial court did not position to conclude that the trial court concluding questioning in this case that the Berkemer, Here, as in the clearly erred. investigatory. not and was threshold occurred prearrest detention was brief and M.A., re In Welfare of However, Lynch public when on a street. (Minn.1981). offense, there stopped was for the traffic apparent and indications were immediate DECISION in a of prostitution that he was involved suppressing order re- The trial court’s stop The a.m. in fense. occurred at 1:45 spondent’s clearly was erro- admission not patrol- neighborhood police had been where neous. prostitution. Hutch ing to control Affirmed. routinely facts inson observed associated Lynch prostitution case. He told with LOMMEN, Judge (dissenting). charged felony, he with a could be respectfully grounds of re I dissent on Hutchinson then conducted a search the Lynch in spondent’s custody not when inter- car. was and, therefore, a Miranda rogated warning Lynch questioned by police not was required. not stopped him for traffic offense. who Instead, questioned by began Lynch This a second encounter when only stopped stopped running sign. him The officer who earlier warned prostitution activity. emergence engаging him unusual feature was questioned Lynch’s passenger, screaming Lynch When Officer Drutschmann (detention (Minn.App.1987) car. Prior to of defen- would not let her out of his police grounds squad require had no dant in car did Lynch prostitu- charge to render statements mаde de- admissible). tion. deputy fendant In the above, placing suspect cited cases of a police present. There officers were two police squad public car out of view did pat-down One of them did a search custody. nоt convert the detention into passen- passenger, put and the questioned, When he was stand- car, ger squad to check in his went on a street. He less was under Lynch’s car for contraband. The other con- suspects constraints than the in the abоve standing Lynch, fronted between who was cases. police The officer his car and the car. asked, your story?” side of the “What’s reasons, For these the traffic in this incriminating response, Lynch made the custodial, case was not and the offi- Thе entire statement and was arrested. required give cers were a Miranda episode investigation revolved around the warning. clearly The trial court erred in passenger and the of the conduct of suppressing Lynch’s statement. stop. questions at the scene of the *5 determining reasonably connected to happened. what case,
The in this like an ordi- traffic
nary had two features that
mitigated danger would speak “to he
have been induced
where
freely.”
would not otherwise
so
Mi-
INSTITUTE,
INVESTMENT COMPANY
Arizona,
436,
randa v. State
384 U.S.
Appellant,
467,
1602,
(1966). First,
86 S.Ct.
Lynch’s
detention
to this traffic
v.
temporary
аnd brief. Berkemer
capacity
in
as
Michael HATCH his
420, 437,
McCarty,
Commerce,
Commissioner
3138, 3149,
ments” and diminished fear cooperate,
“if he be [would] [did]
subjected to abuse.” 384 N.W.2d State v.
(Minn.1986), Supreme the Minnesota Court interroga-
held officer’s brief patrol
tion of the defendant car was entitling interrogation a custodial warning.
defendant to a Miranda 450 N.W.2d Moffatt,
also State v.
(Minn.1990) squad (placing of men detention into de facto ar-
did not convert
rest); Clepper, State