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@004 MON 10:02 FAX 612633i839 CRIMINAL Request to open mouth is a search A police officer observed conduct he thought might be indicative of drug trafficking. The officer approached th~ mspecr and asked questions. The suspect did not respond verbally and appeared to swallow. The officer believed the suspect might be conceal- ing narcoric$ in his mourn. The officer asked che suspect to open his mouth :md che suspect ran. Follomng a struggl,e, the suspect spit out crack cocaine_ Th~ Minnesou Supreme Court reversed the conviction. The coUIt t:onc1uded the police officer's request thar the ~"Uspect open his m(luth was a search. The request was a sufficient inrrusion upon the suspect's privacy interests to be protected by the Fourth Amendment. The court also determined that police lacked probable cause to;) search the suspect's mouth, The pe.lice did not have any specific cvidew;e to incticate what, if anything, the suspect possessed in his mouth. State v. Hardy. _ N.W.2d_ (Minn. Apr. 9, 1998)_ FRmE 5PI!EeH Public funding does not create a public forum Several animal rights protester> were charged wi~h tresp~sing after entering the Mall of America and refUsing to leave for violating mill rule$. The prote$ters moved ro diSnllsS rhe: charges. arguing that the mall is a "public forum" and they Were there- fore enticled to tteedom of speech. The trial court agreed. finding chat the mall was not private property due to the sub$~nt;;aI public subsidy involved in the Jr.Wl's conscruccion. The Minnesota Court of Appeals reversed, finding rn:!t &ee speech guarantees do not extend to e:xpressive conduct within the confines l ora privilte1y-owned shopping center. JUNE/JULY 1998 City of Arden Hills Public funding by ir:.sdf does not cum the mall inm :I public forom. Stare v. Wicklund, _ N,W_2d _ (Minn. App. Apr. 7. 1998). Note; The League submirred an amicus curiae brief in SUPPOIt of the city ofDloomington, )MMUNJTY No immunity for failure to warn of road hazard A drivcr lost control ofms vehicle as I he attempted to steer out of a rot on the shoulder of the road. An injured passenger sued the county. Several d;lys earlier, another accident occurred .l~ the same place. A deputy sheriff notified the county about a drop-off On the shoulder after the first accident. The Minnesota CoUrt of Appeals held .wat the couney is not entitled to statu- tory or official immunity for hiling to W.1rn of the rut. The deputy's call put the county on norice of the rut, but the I' counry did not impect or look for :J rut. For immunity to apply, ;10 actual I decision must be made. The court r concluded immuniry does not apply because the county's failure to warn was not based on an exarninacion of the rot or an application of its sign "\.V:1tIling policy. The county cannot meeC its burden o( establishing it mad~ a decision to act or not ;lct based on its warning policy. Berg'v. Hubbard County, _ N.W.2d _ (Minn. App. May 5. 1998). ' LAND l1SE 60-day rule does not require written notice A developer requested a conditional use pemut. The counry rejected me applicatiol1, but &iled to :let on an alternate proposal. The: developer tIlen sought a judgment dc:claring the permit for the alternate propow automa.oc:lUy approved under thc 60-day nile. If a govemmental agency receives a land MINNE$OT^ ClfIES llSC requ,:st clut does not contain all the required information, me 50-day rule prov,ides that the 60 days docs not begin to run if the agency "sends norice" w'ithin 10 days telling the applicant what information is missing. The devdoper contended the defects in the application w~re poum:d out to him 'Terbally and thar the 60-chy rule requires written notice. The Minnesota Court of Appeals disagreed. The: court stared ilia t where a writing i.~ required, the: Legis] ature will expressly sure the requi:rem,~nt. TIle 60~day tulc: does not expressly .tate notice must be in writing, therefore oral notice was suffi- cient to tllll the: 60-day period. Bender us, Todd County, No. CX-97-1634 (Minn. App. Apr. 14, 1998) (\.1npub- lished opitrion). LJiG1SI....TION State law may pre-empt ordinance The city passed an ordinance limirillg the si2.e of boats on a lake adjoining the ciry. A resident challenged the ordinance, arguing the city's regula~ rions were pre:-empted by a state law esrabli:iliing a conservation district for the lake ar...d its five surrounding ciries. The Minn~ota Court of Appeals I agrecd tbat only the conservarion district is able to regulate the: size of boa~ on the: lake. Absent express pre-emption, a scate law m:lY fully occupy :l pmicular field ofIegislation so chere is '10 room for local regulation. and any ciCV regulation will be void for conflicting wi~h SCl.re law. Here:, the court cietmnined the broad range of powers del<:gated to the conservation district by the stne pre-emptcd local authority and control.. City oj Birchwood Village v. Simes, 576 N.W.2d 458 (Minn_ ApJ" 1998). W,itten by Chri5 Smith, s~ff attorney with the Ltaguf of Minneso14 Ciries. 1 7