This opinion will be unpublished and
May not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
Gerald Mark Rashky,
Otter Tail County District Court
File No. KX982145
Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56357 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.
In this appeal from a conviction for theft of a motor vehicle, appellant argues that the police stop of his vehicle was not based on specific and articulable facts. We affirm.
On November 23, 1998, shortly after 5:00 p.m., Deputies James Stewart and Scott Koennicke pulled into the parking area of the Wall Lake canoe access off Highway 210 north of Fergus Falls. There was a light blue Ford Expedition truck parked in the lot. After noticing movement in the back of the truck, Stewart approached the vehicle and spoke with appellant Gerald Mark Rashky.
Rashky told Stewart that he had been sleeping in the vehicle, and that he was a disabled over-the-road trucker. Rashky said that he had purchased the vehicle in Missouri and was taking the scenic route to California. When Rashky asked whether there was anything wrong, Stewart told him that he was free to leave. As Rashky pulled out of the lot, Stewart noticed a “Friendly Ford” drive-out tag on the rear of the vehicle.
Stewart told Koennicke what Rashky had said. The two deputies discussed the situation and decided that Rashky’s story did not add up and that they had more questions to ask him about where he was going, where he was from, and where he had gotten the vehicle. Both deputies headed down Highway 210. Koennicke came upon Rashky first and stopped him. Using the vehicle identification number, the deputies discovered that Rashky’s vehicle had been stolen in Missouri thirteen days earlier and arrested Rashky.
Rashky was charged with motor vehicle theft, in violation of Minn. Stat. § 609.52, subd. 2(17) (1998). Rashky’s motions to dismiss for lack of probable cause and to suppress evidence obtained as the result of an illegal stop were denied, and Rashky agreed to a court trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), which preserved the suppression issue for appeal.
When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.
State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citing State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992)).
An investigatory vehicle stop is a seizure. State v. Greyeagle, 541 N.W.2d 326, 328 (Minn. App. 1995).
[W]hen a person is seized, courts must suppress evidence gathered as a result of that seizure only when the seizure was unreasonable. The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person [seized] of criminal activity. The officer may justify his decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person. However, a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure.
Harris, 590 N.W.2d at 99 (citations and quotations omitted).
Rashky contends that the district court concluded that there were sufficient articulable facts to support the deputies’ suspicion that he was involved in illegal conduct because Stewart noticed that his vehicle did not have a license plate and instead had a Friendly Ford drive-out tag. Rashky argues that the information in the police report does not support this conclusion. He contends that the police report indicates instead that the deputies decided to stop him because they found his story about taking the scenic route to California to be bogus. To support this argument, Rashky quotes from Stewart’s report, which states:
I spoke to Deputy Koennicke and explained what Rashky had stated he had been doing. Deputy Koennicke and I, after talking it over, decided that he was way off of the Interstate, even to be taking the scenic route to California from Missouri. Shortly after that, I decided that Rashky’s story was not adding up--there was some more questions I had for him about where he was going to, where he was from and where he had gotten the vehicle.
Rashky contends that nowhere in this statement is there any allusion to what specific and articulable facts led the deputies to believe that his story was false.
But the statement includes the specific, articulable fact that Rashky was a long way from the interstate highway that he could be expected to be traveling on if he was going from Missouri to California. Even if the deputies might otherwise have found it credible that Rashky was traveling through Minnesota on his way to California from Missouri, the fact that he was way off the interstate led the deputies to suspect that Rashky’s story was not true.
Also, the sentence in Stewart’s report that is immediately before the portion quoted by Rashky states:
As he drove out of the parking area, I noticed that he had a Friendly Ford Drive-out tag on the rear of the vehicle.
The district court stated in its memorandum that as Rashky was pulling away from the canoe access area,
Deputy Stewart noticed the “Friendly Ford” drive-out tag and that the vehicle did not have a license plate. These facts prompted the officers’ decision to follow [Rashky] and stop him. These are sufficient articulable facts to support the officer’s suspicion that [Rashky] was involved in illegal conduct. Drive-out tags are identifying stickers that car dealers place upon the vehicles that they let potential customers take off of the lot during test drives. These vehicles also have dealer plates on them. When a customer purchases one of the vehicles, he receives the plate as well, or another plate, on a temporary basis while he goes about getting his own permanent license plate. Other facts in the “whole picture” include that the officers found [Rashky] sleeping in the vehicle; in a parking area off of the highway, rather than in a lodging establishment; and heading cross-country from Missouri, where he said the car was from, to California through Minnesota. From these articulable facts, and the inferences that the officers could draw from them, the officers had a reasonable suspicion that [Rashky] possibly was wrongfully in possession of the vehicle and was taking a long out-of-the-way route to avoid detection.
Although Stewart’s report does not explicitly state that the truck did not have a license plate, the report does explicitly state that the truck had a drive-out tag. Rashky does not explain why the statement that the truck had a drive-out tag does not support the district court’s conclusion that the truck did not have a license plate. All that was necessary for the district court to reach this conclusion was that it understood what Stewart meant when he stated in his report that the truck had a drive-out tag. The court’s memorandum indicates that it understood that a drive-out tag is something that is used during a test drive, but that when a car is purchased, the customer receives a temporary or permanent license plate.
Koennicke’s stop of Rashky’s vehicle was not based on a mere hunch. The district court did not err by not suppressing evidence obtained as a result of the stop.