This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1061

 

 

State of Minnesota,
Appellant,

vs.

Michael Dean Fahey,
Respondent.

 

 

Filed November 14, 2000

Affirmed
Klaphake, Judge

Lansing, Judge, dissenting

 

Mille Lacs County District Court

File No. K4-99-1200

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Janelle P. Kendall, Mille Lacs County Attorney, Scott A. Buhler, Assistant County Attorney, 525 Second Street Southeast, Milaca, MN  56353 (for appellant)

 

Robert A. O’Malley, 115 First Street Southwest, Milaca, MN  56353 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Schumacher, Judge.


U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            The state appeals from a pretrial order suppressing evidence seized in a search of respondent Michael Fahey’s car and dismissing a fifth-degree controlled substance charge against him.  Because the arresting officer did not articulate a reasonable and particularized basis for the investigatory stop, we affirm.

ANALYSIS

            The state may appeal from a pre-trial order suppressing evidence or dismissing criminal charges.  Minn. R. Crim. P. 28.04, subd. 1(1).  In order to prevail, the prosecution must show that the suppression order will have a “critical impact” on its ability to successfully prosecute the case and that the district court’s order was clearly erroneous.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  The dismissal of the charges following suppression of all the evidence satisfies the critical impact requirement.  State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997).  Where, as here, the facts are essentially undisputed, the appellate court reviews the district court’s order de novo, to determine if the court has erred in its legal conclusion.  State v. Shellito, 594 N.W.2d 182, 184 (Minn. App. 1999).

            “A brief investigatory stop of a person is lawful if the officer is able to articulate a particularized and objective basis for suspecting the particular person stopped of criminal activity.”  State v. Haataja, 611 N.W.2d 353, 354 (Minn. App. 2000) (citations and quotation omitted).  “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.”  Id. (citations and quotations omitted).  “The factual basis required to support a stop is minimal.”  Knapp v. Commissioner of Pub. Safety, 610 N.W.2d 625, 628 (Minn. 2000) (citation omitted).  The officer must be able to point to an objective basis for the decision to make the stop; a mere “hunch” or subjective opinion is not an adequate basis for a stop.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). 

            As a practical matter, the objective or articulable suspicion requirement is satisfied by enumerating the observations made by the officer that led him to suspect that criminal activity was occurring.  Here, the officer admitted that the cars he observed were not violating any law, but he thought that perhaps they were having mechanical trouble.  He also stated that the cars could have created a traffic hazard, but acknowledged that the road was deserted and the cars were parked on a dead-end cul de sac, before they drove off.  When the officer saw respondent standing with his back to the road, he guessed that respondent might be urinating, but he saw nothing to support this other than respondent’s stance.  A critical element in a valid investigatory stop is that the officer has a reasonable and articulable suspicion of criminal activity; this element is lacking in this officer’s testimony.

            Although the factual basis necessary to support a stop is minimal, it must be something more than a “mere whim, caprice or idle curiosity.”  State v. Harris, 572 N.W.2d 333, 337 (Minn. App. 1997) (citations and quotation omitted).  The district court did not err in concluding that the state failed to show a reasonable and articulable basis for the investigatory stop.

            Affirmed. 


LANSING, Judge (dissenting)

            I respectfully dissent.  In two previous cases, this court has held that an officer’s observation of a driver’s public urination justifies a stop to investigate whether a driver is under the influence of alcohol.  State v. Claussen, 353 N.W.2d 688, 690 (Minn. App. 1984); Nohre v. Commissioner of Pub. Safety, 355 N.W.2d 757, 759 (Minn. App. 1984).  A driver’s public urination creates a sufficiently strong inference of intoxication to provide reasonable suspicion regardless of whether public urination is an independent offense.  Claussen, 353 N.W.2d at 690; cf. Nohre, 355 N.W.2d at 760 (treating public urination as disorderly conduct).

Under the totality of the circumstances, the officer had a reasonable and articulable suspicion of illegal activity to justify an investigatory stop.  See Knapp v. Commissioner of Pub. Safety, 610 N.W.2d 625, 628 (Minn. 2000) (summarizing elements of constitutionally permissible investigatory stop).  In addition, respondent appeared to engage in evasive conduct in re-entering the car and driving off as soon as he saw the officer.  See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (holding that in some circumstances evasive conduct upon seeing police may justify an investigative stop).