This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Nathan Daniel Cannon, petitioner,
Commissioner of Public Safety,
Ramsey County District Court
File No. C49910393
Timothy J. Becker, Caldecott, Wheeler & Searles, P.L.C., Suite 900, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, Michael R. Pahl, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103 (for respondent)
Considered and decided by Toussaint, Presiding Chief Judge, Amundson, Judge, and Stoneburner, Judge.
On October 30, 1999, at 1:12 A.M., a Ramsey County Sheriff’s deputy patrolling the City of Little Canada received a call from dispatch. The dispatcher sent the deputy to 122 East Demont Avenue to respond to an anonymous tip that “three pick-ups * * * were horsing around in the parking lot of the warming house for Roseville Area Middle School.” No description of the trucks was given. The deputy went directly to investigate the tip, arriving at the warming house area two to three minutes later. There he observed fresh tire marks in the grass and dirt on the roadway near the warming house.
The deputy followed the dirt tire tracks back to Demont Avenue and, about two minutes later, noticed Cannon’s truck driving toward the warming house. He did not see any other vehicles on the road. The deputy followed the truck and testified that he visually estimated that Cannon was exceeding the 35-mile-an-hour speed limit. The deputy admitted that he never got a radar reading of the truck’s speed, “never got an accurate pace on him,” and did not issue Cannon a speeding ticket.
The deputy caught up with Cannon’s truck at a stop sign where Cannon stopped for 15 to 20 seconds. While stopped behind Cannon’s truck, the deputy noticed “fresh damage” to the back rear bumper and left rear quarter panel of the truck. He determined it was “fresh damage” because there was white paint transferred to the truck in those areas and no rust. The damage did not appear to constitute an equipment violation, and the deputy did not notice any dirt on the truck. After noticing the damage, the deputy pulled Cannon over to question him about it.
At the hearing, the deputy was the only witness and he testified that the stop was “just investigatory based on the complaint.” He estimated that about five to eight minutes passed between the dispatch call and the stop, but the log sheet indicates the initial traffic stop occurred at 1:29 A.M., 17 minutes after the dispatch call.
As a result of the stop, Cannon ultimately had his driving privileges revoked. The trial court sustained the revocation. Cannon appeals the order sustaining the revocation of his driver’s license.
D E C I S I O N
The parties do not dispute the facts of this case. We review to determine whether the deputy had a particularized and objective basis for an investigative stop. Our review of the legal issue is de novo. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). For an investigatory stop to be lawful, the officer must have a reasonable, articulable suspicion that the particular person stopped was involved in criminal activity. Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). The stop must not be the product of mere whim, caprice, or idle curiosity; instead, it must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).
In Appelgate, the supreme court used the following six factors to help determine the lawfulness of a stop of a motor vehicle observed near a recent crime scene:
(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.
402 N.W.2d at 108 (citing 3 Wayne R. LaFave, Search and Seizure § 9.3(d) at 460 (2nd ed. 1987)); see also Marben v. Department of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (noting information from private citizens is presumed reliable).
In this case, (1) there was no description of the offenders or vehicles, except that the vehicles were trucks; (2) the deputy observed fresh tire tracks near the warming house, which confirmed the activity reported; (3) the area in which the offenders might have been found was relatively large considering they were driving trucks and could be several miles away within a matter of minutes; (4) Cannon’s truck was the only vehicle the deputy noticed in the area; (5) the offenders’ direction of flight was unknown, although the tire tracks observed by the deputy led away from the warming house and to Demont Avenue; (6) Cannon was observed speeding near the area of the crime with “fresh damage” to his car; and (7) there was no knowledge or suspicion that Canon had been involved in other similar criminal activity. Factors 2, 4 and 6 support the legality of the stop.
The supreme court recognized that “there are ‘cases where the number of persons about in the area is so small that a stopping for investigation may be made without any description whatsoever.’” Appelgate, 402 N.W.2d at 108 (quoting LaFave, supra, at 470); see Purnell v. Commissioner of Pub. Safety, 410 N.W.2d 439, 441 (Minn. App. 1987) (affirming stop based on anonymous tip giving location but not description of truck when truck was near the crime scene area, officer arrived promptly and there was no other traffic).
This case is similar to Appelgate where the officer received a report of a burglary at 2:25 A.M. and responded immediately. Appelgate, 402 N.W.2d at 107. Noting that there was “very little, if any” traffic in the area at that time of day, the officer believed any vehicle seen leaving the area could possibly be involved in the burglary. Id. The officer saw a car and followed it. Id. at 107-08. The car made prolonged stops at two intersections, and the officer stopped the car. Id. The supreme court held that:
Looking at the totality of the circumstances—the whole picture—we conclude that the officer had a particularized and objective basis for at least suspecting that Appelgate had been involved in the burglary and that the officer therefore was justified in subjecting Appelgate to a limited investigative stop for the purpose of “freezing” the situation.
Id. at 109.
Here, the deputy observed fresh tire tracks, confirming the anonymous tip that there had been trucks driving around near the warming house, and then within a two minute drive saw Cannon’s truck in the area, which had no other traffic at that time of night. The deputy followed Cannon’s truck and observed speed in excess of the limit, a prolonged stop at an intersection and what appeared to be “fresh damage” to the truck. Suspecting that Cannon may have been one of the people driving on the grass near the school warming house, the deputy pulled him over to conduct an investigatory stop.
The deputy had a particularized and objective basis for suspecting Cannon. See id. (holding stop of only car in area of crime, which had virtually no other traffic that time of day, was valid); see also State v. Moffatt, 450 N.W.2d 116, 119 (Minn. 1990) (holding “stop of only car in area moments after report of burglary” was justified to “freeze the situation”). In his testimony, the deputy articulated his basis for suspecting Cannon and demonstrated that he “did not base his decision to stop [Cannon] on ‘mere whim, caprice, or idle curiosity.’” State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (quoting Marben, 294 N.W.2d at 699 (citations omitted)). Because the totality of the circumstances shows the deputy had a reasonable suspicion that Cannon may have been involved in the careless driving incident near Roseville Middle School, we affirm.