Erroneous Instruction on Probable Cause Earns a New Trial

State v. Koppi, Minn.S.Ct., 6/8/2011.  An officer stopped Mr. Koppi because Mr. Koppi was speeding and appeared to be accelerating away from the squad car.  As he approached Mr. Koppi’s truck the officer smelled alcohol coming from Mr. Koppi and noticed that his eyes were bloodshot.  The officer asked Mr. Koppi to perform field sobriety tests but he refused.  The state charged Mr. Koppi with test refusal.

At trial, Mr. Koppi complained that the jury instruction that defined probable cause, CRIMJIG 29.28, provided a subjective, rather than an objective definition of probable cause.  The trial court gave the instruction anyway.  The Court of Appeals affirmed concluding that although the instruction erroneously articulated a subjective standard of probable cause the error was harmless.  The Supreme Court now reverses, agreeing that the instruction is not a correct statement of the law of probable cause, but concluding (Chief Justice Gildea and Justice Dietzen dissenting) that the error was not harmless.

Here’s what Justice Stras says is wrong with the instruction:

The instruction contains three flaws. First, it does not require the officer to recite actual observations and circumstances supporting a finding of probable cause. Second, it fails to include the requirement that the jury evaluate the totality of the circumstances from the viewpoint of a reasonable police officer. Third, the instruction erroneously requires that an officer believe a driver “was more likely than not” driving while impaired, a standard that is at odds with case law on probable cause requiring only an “honest and strong suspicion” of criminal activity.

Unlike the Court of Appeals, the Supreme Court concludes that this error is not harmless:

we must evaluate the evidence presented at trial to determine whether the instructional error was harmless beyond a reasonable doubt. Specifically, the question is whether the evidence points so overwhelmingly in favor of probable cause that we can say beyond a reasonable doubt that the instructional error had no significant impact on the verdict.

The instruction, CrimJig 29.28, has been rewritten in response to the court of appeals opinion and now says this about probable cause:

“Probable cause” means that the officer, based upon the officer's observations, information, experience, and training, can testify to the objective facts and circumstances in this particular situation that gave the officer cause to stop the defendant's motor vehicle and the further objective observations that led him to believe that the defendant was driving, operating, or in physical control of a motor vehicle while under the influence of alcohol.