This opinion will be unpublished and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

C5-00-936

 

State of Minnesota,

Appellant,

 

vs.

 

Donald Wayne Hahn,

Respondent.

 

Filed November 28, 2000

Reversed

Kalitowski, Judge

Concurring specially, Amundson, Judge

 

Winona County District Court

File No. K300150

 

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

 

Charles E. MacLean, Winona County Attorney, Steven L. Schleicher, Assistant County Attorney, Winona County Courthouse, 171 West 3rd Street, Winona, MN 55987 (for appellant)

 

Gary A. Gittus, George F. Restovich, George F. Restovich & Associates, 117 East Center Street, Rochester, MN 55904 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant State of Minnesota challenges the district court’s order suppressing evidence and dismissing charges of manufacturing and possession of a controlled substance against respondent Donald Wayne Hahn.  Appellant asserts that the investigator who stopped respondent had specific and articulable facts establishing a reasonable suspicion that respondent was engaged in criminal activity when the investigator stopped respondent’s vehicle.  We agree and reverse.

D E C I S I O N

            An appellate court will reverse a pretrial order suppressing evidence only if the state demonstrates clearly and unequivocally that the district court erred and that such error will have a critical impact on the trial.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  The parties do not dispute the facts on appeal; therefore, this court’s review is de novo.  See id. (stating where facts are undisputed the district court’s decision is question of law). 

            It is undisputed that critical impact is demonstrated here because the district court dismissed the charge against respondent after suppressing all of the evidence.  State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997).  Thus, we need only determine whether the district court clearly and unequivocally erred in suppressing the evidence. 

            Both the United States and Minnesota Constitutions protect citizens from unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  A police officer may make an investigatory stop of a motor vehicle if the officer has “‘specific and articulable facts’ establishing ‘reasonable suspicion’ of a motor vehicle violation or criminal activity.”  State v. Duesterhoeft, 311 N.W.2d 866, 867 (Minn. 1981) (citation omitted).  An investigatory stop does not require probable cause and an actual violation need not be observed.  Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968); State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).  “All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.”  Marben v. Department of Pub. Safety,294 N.W.2d 697, 699 (Minn. 1980) (quotations omitted).  An officer need not observe a traffic law violation.  See id.  “It is also true that wholly lawful conduct might justify the suspicion that criminal activity is afoot.”  State v. Britton, 604 N.W.2d 84, 89 (Minn. 2000) (citation omitted).

            When reviewing the propriety of a traffic stop on established facts, this court is to “simply analyze the testimony of the officers and determine if, as a matter of law, the officers were justified under the cases in doing what they did.”  State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988) (citation omitted).  Officers may make their assessment on the basis of all of the relevant circumstances, drawing on inferences and making deductions which “might elude an untrained person.”  Holm v. Commissioner of Pub. Safety,416 N.W.2d 473, 474 (Minn. App. 1987) (citation omitted).  These circumstances include the officer’s

knowledge and experience, the officer’s personal observation, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.

 

Appelgate v. Commissioner of Pub. Safety,402 N.W.2d 106, 108 (Minn. 1987).

            Here, a Winona County Sheriff’s trained narcotics investigator, in plain clothes and an unmarked car, was sent to investigate an abandoned car on a snow-covered, minimum maintenance road.  Earlier that day, officers found evidence consistent with items used for methamphetamine manufacturing near the abandoned vehicle.  Moreover, the investigator had recently received an interoffice memorandum alerting police to the new development of mobile methamphetamine production in vehicles in remote areas.  The investigator, driving south, saw respondent’s vehicle in the middle of the road, facing north, approximately 20-30 yards in front of the abandoned vehicle.  He described respondent’s position in the vehicle as “slumped over” and stated that after three to four seconds, respondent’s head “snapped up,” and respondent quickly backed up his vehicle.  The narrow road would not allow two cars to pass each other so respondent backed his car up past the abandoned vehicle until he reached a place in the road to turn his car around.  Once turned around, he began driving south.  At this time the investigator conducted an investigatory stop.

            This court has emphasized that the totality of the circumstances must be viewed from the perspective of a trained law enforcement officer.  State v. Claussen, 353 N.W.2d 688, 690 (Minn. App. 1984).  Here, the investigator knew that items near the abandoned vehicle were consistent with methamphetamine production.  Moreover, the investigator’s narcotics training, the recent memo regarding mobile methamphetamine labs in remote areas, respondent’s presence in a remote area, and the investigator’s description of respondent as “slumped over,” head “snapping up” and quick departure from the scene formed a specific and articulable basis for the investigator’s suspicion that respondent was in possession of and manufacturing a controlled substance.  Under these facts the decision to stop respondent was not the product of “whim, caprice, or idle curiosity.”  Thus, after applying the applicable precedent we conclude the district court erred in suppressing the evidence and dismissing the charges against respondent.

            Finally, although the district court did not reach this issue, respondent argues that the length of the detention was in violation of his constitutional rights to be free from unreasonable searches and seizures.  Courts have not imposed a rigid time limit on the permissible duration of a detention that follows a lawful stop.  State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993).  Generally, an investigatory detention “may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop.”  Id. (citation omitted); see also State v. Moffatt, 450 N.W.2d 116, 119 (Minn. 1990) (finding an investigatory detention of one hour was not too long where the officer’s reasonable suspicion of parties’ involvement in the crime had not yet been dispelled).

            The investigator stopped respondent because he suspected respondent was involved in manufacturing methamphetamine in his vehicle.  Respondent, when stopped, got out of his vehicle and stood at the back of his vehicle.  The investigator questioned respondent there and checked his driver’s license.  Respondent claims that 15 minutes passed before the investigator, without using a flashlight, or going into the vehicle in any manner, peered into the vehicle and observed in plain view a pipe typically used to smoke methamphetamine and a variety of other items associated with manufacturing methamphetamine.  Although respondent also claims it took an additional 25 minutes for other officers to arrive on the scene and arrest respondent, the record indicates that this delay was attributable to the fact the officers had difficulty finding the remote location.  Under these facts we conclude the length of the detention was not longer than necessary to effectuate the purpose of the stop.

            Reversed.


AMUNDSON, Judge (specially concurring)

I agree with the majority’s result, but have reservations about the path to its conclusion.  The majority’s holding implicates both the United States and Minnesota constitutions protecting citizens from unreasonable searches and seizures.  I am, however, uncomfortable with the license it gives to police officers to effect stops, searches, and seizures.  I believe the case is more properly resolved on another basis.

Our state and federal constitutions require that before lawfully stopping any individual for questioning, an officer must possess an objective belief that the person stopped is engaged in, or is about to engage in, criminal activity.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  In Berge v. Commissioner of Public Safety, 374 N.W.2d 730, 732 (Minn. 1985) (quotation omitted), the supreme court held that an officer must have a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”  Such a stop must be based on more than a whim or a “mere hunch.”  George, 557 N.W.2d at 578.  It is also true that a reasonable articulable suspicion may be demonstrated by a totality of circumstances.  State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986).  But did this investigating officer have such a reasonable articulable suspicion that Hahn was engaged in, or was about to engage in, criminal activity when he initiated a traffic stop of Hahn’s motor vehicle?  The majority cobbles together facts to conclude he did.  The opinion says: “A police officer may make an investigatory stop of a motor vehicle if the officer has ‘specific and articulable facts’ establishing ‘reasonable suspicion’ of a motor vehicle violation or criminal activity.”  The majority does not cite State v. George, but the earlier State v. Duesterhoeft, 311 N.W.2d 866, 867 (Minn. 1981) (citation omitted), a rather general statement of the law.  It further advances its analysis, relying on Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968), the touchstone case in this area, to say, “An investigatory stop does not require probable cause and an actual violation need not be observed.”  It concludes its theoretical framework with, “All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.”  Marben v. Department of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (quotation omitted).  These cases cited by the majority purportedly reflect the theoretical trail taken since Terry that allows police to subject individual criminal suspects to Fourth Amendment intrusions without probable cause.  Police may now perform stops and frisks upon “articulable suspicion, founded upon reason.”  Presumably, this meant something more than a hunch that a crime was afoot and the suspect might be armed and dangerous.  I fear that even though the Terrycourt’s rhetoric concerning the requirement of particularized suspicion has stood unchanged since 1968, courts have gradually but unmistakably eroded its force.  As in the present case, we have moved away from a concept of individualized suspicion to a categorical one.

When reviewing the propriety of a traffic stop on established facts, we are required to “analyze the testimony of the officers and determine if, as a matter of law, the officers were justified under the cases in doing what they did.”  State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).  The majority recalls that officers may make their assessment on the basis of all of the relevant circumstances, drawing on inferences and making deductions which “might elude an untrained person.”  Holm v. Commissioner of Pub. Safety, 416 N.W.2d 473, 474 (Minn. App. 1987).  These circumstances, the opinion holds, “include the officer’s general knowledge and experience, the officer’s personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.”  Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).

The majority relies on the fact that the case involved a Winona County Sheriff’s trained narcotics investigator, in plain clothes and an unmarked car, sent to investigate an abandoned car on a snow-covered “minimum maintenance” road (Whitewater Township Road No. 4).  An additional circumstance of importance to the majority is that earlier that day, officers found evidence consistent with items used for methamphetamine manufacturing near the abandoned vehicle.  And further, the investigating officer had recently received an interoffice memorandum alerting police to the new development of mobile methamphetamine production in vehicles in remote areas.  But are we permitted by that to assume that anyone in proximity to this vehicle is open to suspicion, and may be stopped?  Can we allow this overly-broad criterion, coupled with otherwise innocuous data, to replace an examination of facts that would test both the officer (and any court faced with a suppression motion) over whether or not there was reasonable suspicion to believe that a particular person was involved in a crime?  We have allowed conduct, especially activity assembled with otherwise unrelated facts, to serve as a basis for a stop.  This is so even when the observed action is not only consistent with innocence, but presents only a remote possibility that the person is engaged in a crime.  The shortcoming of this rationale is particularly evident in cases, like here, where the police observe the suspect in an area which itself is charged with suspicion.  Here, however, the suspicious nature of the area did not even arise from long-standing experience with its “high crime” or drug-trafficking reputation.  Instead, it takes its onus from an unspecific allegation by authorities about the novel development of portable methamphetamine labs in cars on rural roads.  Further, the focus of concern here is a car that had been sitting abandoned for nearly three weeks.

Courts seem to be willing to accept such assertions, without question, whether they are accompanied by additional salient facts or not.  This happens not just because judges are inclined to believe police, but because of the way the United States Supreme Court has apparently told lower courts to evaluate information in suppression hearings.  Indeed, even this court has emphasized that the totality of the circumstances must be viewed from the perspective of a trained law enforcement officer.  State v. Claussen, 353 N.W.2d 688, 690 (Minn. App. 1984).

But doesn’t unlicensed recourse to this doctrine effectively insulate police from appropriate judicial scrutiny? Can peace officers clothe their work in ways that are inscrutable to others, and courts still exercise constitutionally mandated judicial oversight?  I don’t think so.  In this case, there is simply no nexus binding these otherwise innocuous details together.  The majority seeks to cement them into a permissible rationale by a perspective only a trained law enforcement officer can have.  What is this training that results in such a thaumaturgical result?  Investigator Muller admitted that there was nothing illegal about Hahn’s vehicle being on that minimum maintenance road on the date in question.  At no time did Muller ever observe Hahn or his vehicle near the abandoned station wagon which law enforcement had known about for 19 days.  At no time prior to the traffic stop did Muller observe Hahn outside of his vehicle.  Indeed, on cross-examination, Muller conceded that Hahn had been looking down for only approximately two-to-three seconds prior to the point at which Hahn’s head “snapped up.”  Hahn was described initially as being slumped over.  But should a two-to-three second gap be considered “slumped over?”  Especially when Muller admitted on cross-examination that Hahn lifted his head, as if fully attentive, and he did not roll it to one side or the other.  Muller testified that Hahn appeared to be backing his vehicle down that minimum maintenance road as if to get out of the way of his vehicle.  The only time Hahn was in the vicinity of the abandoned vehicle was when he drove past it as he was backing down the road.  Aside from some tire-slipping, there was no outward indication of Hahn’s driving conduct that would lead a reasonable person to believe that he was under the influence of a controlled substance.  In fact, it was after Hahn got his vehicle turned around safely and proceeded in the opposite direction that Muller decided to stop the vehicle.  In Muller’s own words, one of the reasons for stopping Hahn was the “possibility” that he had some connection to the abandoned vehicle that appeared to be associated with controlled substance trafficking.  This “possibility”, as described by Muller, can only be a hunch or idle curiosity at best.  Neither can be the basis for a reasonable and objective belief that criminal activity is occurring or is about to occur and thus provide a basis for a traffic stop.

At no time in the past did Muller have any knowledge of connections between Hahn and Julie Bigelow, who was the purported owner of the suspicious, abandoned station wagon.  Nor did he have any information to suggest that Hahn was ever connected to Bigelow and her drug activities.  In other words, Investigator Muller could not articulate a reasonable suspicion for stopping Hahn’s vehicle.  It appears that he did so only on the hunch that Hahn may be involved in some way with the abandoned suspicious vehicle.  And the constitution does not permit public citizens to be stopped on the basis of an officer’s hunch.

It increasingly appears we have two constitutions emerging in both state and federal law.  The first is applied with time-tested regularity to crimes such as burglary, fraud, and even treason.  A second constitution is being crafted and applied in cases dealing with illicit drugs.  I am concerned that the principal casualty in the war on drugs is the Bill of Rights.  Such a price is too high, even if we were winning the conflict.

I would reverse the district court, as does the majority, but on a basis neither the majority, the district court, the appellant, nor the respondent has broached.  Investigator Muller was entitled to stop the vehicle he came upon because the driver, being stopped in a public street or highway, was in violation of Minn. Stat. § 169.32 (1998).  As such, the investigator was entitled to stop respondent for committing a misdemeanor in his presence.  The subsequent discussion and search may have proceeded without having the imprimatur of constitutional law.  When a case can be decided on principle without constitutional implication, that should be the basis on which a court proceeds.  In re Senty-Haugen, 583 N.W.2d 266, 269 n.3 (Minn. 1998) (citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-48, 56 S.Ct. 466 (1936) (Brandeis, J., concurring)).