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Last week, we discussed State v. Lugo,[1] a case addressing two distinct issues: (1) the proper standard of review for a trial court’s conclusion of law in an appeal by the State; and (2) whether a dog-sniff was supported by reasonable articulable suspicion. Today, we will discuss the opinion’s lesson on appellate standards of review: that there should be no deference by an appellate court to a trial court’s findings of reasonable articulable suspicion.

For those unfamiliar with the appeal process, it is important to know that you cannot present evidence on an appeal: no witnesses, no testimony, and no new determination as to what the underlying facts of the case are. On appeal, the courts are only interested in making sure the trial was fair and there was a correct application of the law. Furthermore, appellate courts can only consider an issue if it was raised in the trial court at the outset. Basically,[2] if the defense lawyer does not raise the objection or make the motion during the client’s actual case, the court of appeals will not hear it. Therefore, any issue before the court of appeals will be an issue that the judge at the trial court already decided in some fashion.

This obviously begs the question: to what extent do the appellate courts have to defer to this judge’s decision? This deference is known as the “standard of review,” and it is the single most important controlling aspect of an appeal. For instance, if a defendant is appealing a finding of facts, the court of appeals will defer to the trial judge unless their finding of facts were “clearly erroneous,” which is a high bar to meet. However, if a defendant is appealing a trial judge’s decision on a question of law, the court of appeals will make an independent determination of the issue, otherwise known as de novo review. Obviously, the de novo standard is much more favorable to defendants. When it comes to issues surrounding constitutional violations, it truly is like getting another bite at the apple because the appellate court will not defer to the trial judge at all.

In Lugo, however, the State lost the reasonable articulable suspicion argument at the trial level. Does the same independent determination apply to the State when they appeal? Lugo’s attorney argued that because the State was appealing a decision they lost, a special deferential standard of review should apply. There was, seemingly, precedent for such a request: an old Minnesota Supreme Court case called State v. Webber[3] that contained some ambiguous language surrounding the issue.

In Webber, the State was also appealing a decision they lost. As part of their holding, the court stated that they would “only reverse the determination of the trial court if the state demonstrates clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.” Both Lugo and the State agreed that the State had proven the critical impact prong of the requirement. They disagreed, however, on whether the State had to satisfy that the trial judge not only made an error, but that the error was clearly and unequivocally wrong. Lugo argued that this deference was consistent with Minnesota policy disfavoring pretrial appeals by the State. Essentially, he was arguing, that because the reasonable articulable suspicion argument was close and not ‘clearly and unequivocally’ an error, and because the matter was found in favor of the defendant, the trial judge should be given the benefit of the doubt.

The Minnesota Supreme Court denied that Webber stood for what Jose argued it should, and, if there was any lingering doubt, overruled it completely. First, they turned to Rule 28.04, subdivision 1(1) of the Minnesota Rules of Criminal Procedure which governs pretrial appeals by the State, and pointed out that it contains no language using the Webber “clearly and erroneously” language. Then, they proceeded to analyze five different Minnesota Supreme Court cases decided since Webber involving pre-trial appeals by the State on a question of law in which no deference was shown whatsoever to the trial court judge’s decision. The effect of this, even if the case stood for what Lugo said it did, was to characterize Webber as an anomaly.

Next, they pivoted to a United States Supreme Court case and another Minnesota case to discuss why what Lugo was asking for would make bad judicial policy. If you’re looking for the real reason why the court overruled Webber, this is it right here:

Finally, weighty reasons of judicial policy undermine Lugo’s argument that we should defer to district courts on constitutional issues “such as probable-cause and reasonable-suspicion determinations.” State v. Chavarria-Cruz, 784 N.W.2d 355, 364 (Minn. 2010). “[T]he legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify, the legal principles.” Ornelas v. United States, 517 U.S. 690, 697 (1996); Chavarria-Cruz, 784 N.W.2d at 364. In addition, “de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined ‘set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interests of law enforcement.’ ” Ornelas, 517 U.S. at 697-98 (quoting New York v. Belton, 453 U.S. 454, 458 (1981) (internal quotation marks omitted)).

Lastly, the court turned to the one case Lugo did cite in his brief which did not discuss Webber expressly but was favorable to him: State v. Champion.[4] In Champion, the trial court had concluded that a police interrogation, although not custodial at the outset, became custodial as it went along. Essentially, the trial court made a decision of law, or at the very least, a mixed decision of fact and law. The Minnesota Supreme Court upheld the ruling, and in doing so, stated “we give considerable, but not unlimited deference to a trial court’s fact-specific resolution of such an issue when the proper legal standard is applied.” Essentially, at one point, the Minnesota Supreme Court decided that something like a deferential standard was appropriate in an appeal by the State.

However, in perhaps the only unconvincing portion of the standard of review issue in Lugo, the court quickly brushed aside Champion, and pointed out that it only spoke of factual deference “when the correct legal standard is applied.” The distinction seems like it could have used a little more explanation. After all, the trial judge in Lugo’s case used the correct legal standard, and determined that the circumstances were such that the agent did not have reasonable articulable suspicion. In Champion, the court stated “while individual members . . . might well have resolved the dispute differently, we conclude that the trial court did not clearly err in resolving the matter as it did.” It is difficult to understand how exactly the same logic wouldn’t apply to the judge at Lugo’s trial. Nevertheless, the court’s judicial policy argument is a compelling one. We agree that anything that dilutes de novo review for issues of constitutional law is a slippery slope, and are glad the court decided this portion of the case in the way that they did.

[1] State v. Lugo, No. A15-1432, 2016 WL 6992464 (Minn. Nov. 30, 2016).

[2] Unless it would be a manifest injustice.

[3] State v. Webber, 262 N.W.2d 157 (Minn. 1977).

[4] State v. Champion, 533 N.W.2d 40 (Minn. 1995).

Matthew B. Trevor graduated summa cum laude from Mitchell Hamline School of Law in St. Paul. There, he was an Assistant Editor on Law Review and received CALI Awards for both Criminal and Constitutional Law. He was also a Mitchell Hamline Fellow; clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. Criminal Appeals Attorney Minnesota; St. Paul Criminal Lawyer; and St. Paul Appeals Lawyer.

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