This opinion will be unpublished and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

C0-00-973

 

Darcy R. Timmerman,
petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed November 21, 2000

Reversed
Klaphake, Judge

 

Ramsey County District Court

File No. C6-00-2402

 

Paul W. Rogosheske, Joe C. Dalager, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South St. Paul, MN  55075 (for appellant)

 

Mike Hatch, Attorney General, Sheila M. Fitzgerald, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (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

Darcy R. Timmerman appeals from an order sustaining the revocation of her driving privileges after she was stopped and arrested for driving while under the influence.  She challenges the district court’s determination that the officer was justified in stopping her and argues that the officer failed to articulate an objective basis for the stop.  Because Timmerman committed no traffic violation when she failed to signal her left-hand turn while exiting from the driveway of a private business onto a public highway and because that was the only basis given by the officer for stopping Timmerman, we reverse the district court’s decision.

D E C I S I O N

            A limited investigatory stop is lawful if the officer is able to articulate that he had a “particularized and objective basis for suspecting the * * * person stopped of criminal activity.”  Applegate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (citation omitted).  A stop cannot be based on “mere whim, caprice, or idle curiosity.”  State v. Harris, 572 N.W.2d 333, 337 (Minn. App. 1997) (citations and quotations omitted).  An officer’s mere “hunch” or subjective opinion is not an adequate basis for a stop.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

            “[I]f an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.”  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  But if no traffic law has actually been violated, the officer’s mere belief that such a violation has occurred is insufficient to establish an objective legal basis for the stop.  Id. (officer’s stated belief that motorcycle headlight configuration was illegal, when it actually conformed to Minnesota law, insufficient to justify stop).

            In this case, the officer testified that his basis for stopping Timmerman was her failure to signal her left-hand turn while exiting from the parking lot at Brady’s Bar onto Rice Street.  As statutory authority, the officer cited Minn. Stat. § 169.19 (1998) and articulated that Timmerman had failed to “signal 100 feet prior to turning” and failed to “signal [her] change of course.”

            Minn. Stat. § 169.19 is entitled “Turning and Stopping,” and provides in pertinent part:

Subd. 4.  Change of course.  No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in this section, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a highway unless and until the movement can be made with reasonable safety after giving an appropriate signal in the manner hereinafter provided.

 

Subd. 5.  Signal to turn.  A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.

 

The provisions of chapter 169 relating to the operation of vehicles refer to the operation of vehicles on “highways” unless a different place is specifically referred to in a given section.  Minn. Stat. § 169.02, subd. 1(1) (1998).  A “highway” is defined as

the entire width between boundary lines of any way or place when any part thereof is open to the use of the public, as a matter of right, for the purposes of vehicular traffic.

Minn. Stat. § 169.01, subd. 29 (1998).  A “private road or driveway,” on the other hand, is defined as

every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.

 

Minn. Stat. § 169.01, subd. 30 (1998).

            The Commissioner of Public Safety argues that the exit from the parking lot falls within the definition of a “public highway” so as to require Timmerman to signal her left-hand turn out of that lot onto Rice Street.  We disagree.  There is nothing in the record to suggest that the exit or parking lot was used as a thoroughfare for general travel; indeed, we must assume that Brady’s could have closed its parking lot or limited its use to particular people or hours of the day.  We therefore conclude that the exit from Brady’s parking lot is in the nature of a private driveway and not a “highway.”  See Schnore v. Baldwin, 217 Minn. 394, 397, 14 N.W.2d 447, 449 (1944) (driveway leading from Montgomery Ward parking lot onto public highway held to be within definition of “private road or driveway,” so as to require driver entering highway from that driveway to yield right of way to vehicles approaching on highway); Merritt v. Stuve, 215 Minn. 44, 54, 9 N.W.2d 329, 334 (1943) (roadway leading from prison parking lot to public highway held to be private road or driveway, so as to require traffic emerging therefrom to yield right of way to oncoming traffic).  Thus, Timmerman did not commit a traffic violation merely by exiting from this private parking lot onto a public highway.

            The commissioner argues that, even if the exit to Brady’s is not a highway, Timmerman was still required to signal her “change of course” once she entered Rice Street, crossed two lanes of traffic, which included the northbound lane and a center turn lane, and made her southbound, left-hand turn.  Again, we disagree.  The provisions governing “changes of course” have been applied to drivers while making lane changes, U-turns, turns at intersections or into driveways, or other shifts in direction from a direct course while traveling along a highway.  See, e.g., Martinco v. Hastings, 265 Minn. 490, 499, 122 N.W.2d 631, 639 (1963) (jury properly instructed on provisions of Minn. Stat. § 169.19, subds. 4-6, where deputy sheriff, who was driving unmarked car, pulled out into passing lane in front of another vehicle attempting to pass him, without signaling, and was rear-ended when he slowed down from 60 mph to 20 mph in short period of time); Coble v. Lacey, 252 Minn. 423, 428-29, 90 N.W.2d 314, 319 (1958) (trial court correctly instructed jury on provisions of Minn. Stat. § 169.19, subd. 4, in case involving driver crossing highway for purpose of entering private driveway); Alex v. Jozelich, 248 Minn. 27, 32, 78 N.W.2d 440, 444 (1956) (noting that prior version of Minn. Stat. § 169.14, subd. 4, which did not include a signaling requirement, “would clearly impose upon a driver intending to turn left from a public highway onto a private drive the duty of stopping his vehicle and delaying movement until it could be made with reasonable safety”); State v. Caswell, 551 N.W.2d 252, 254 (Minn. App. 1996) (holding that evidence sufficient to support careless driving conviction based on illegal change of course under Minn. Stat. § 169.14, subd. 4, where evidence showed defendant pulled in front of approaching vehicle without signaling her intent to make U-turn and where officer concluded that, based on position of vehicles, defendant’s attempted U-turn was unsafe); State v. Bissonette, 445 N.W.2d 843, 845-46 (Minn. App. 1989) (holding that Minn. Stat. § 169.19, subd. 4 requires use of turn signal when changing lanes on highway).  When the “change of course” language of Minn. Stat. § 169.14, subd. 4 is read in context with the rest of that subdivision and with the rest of Minn. Stat. § 169.14, it is apparent that it was intended to apply to vehicles traveling along highways.  Cf. Kollodge v. F. & L. Appliances, Inc., 248 Minn. 357, 360-61, 80 N.W.2d 62, 64-65 (1956) (although second paragraph of Minn. Stat. § 169.21, subd. 2 makes no distinction between controlled or uncontrolled crosswalks, when construed with reference to other provisions of statute and subdivision, “it is apparent that it was intended to be limited to crosswalks where traffic-control signals are not in operation”).  We therefore decline to extend the “change of course” signaling requirement to vehicles exiting from a private parking lot onto a public highway.

            Finally, we note that although Timmerman does not claim that the officer’s articulated reason for stopping her vehicle was merely a pretext for searching for other criminal activity, the officer did acknowledge that this location is a “high traffic area” and that other officers make many arrests here.  Because there was no objective basis in the law for the officer to suspect that Timmerman violated any traffic law and because the officer failed to articulate any other objective basis for suspecting Timmerman of criminal activity, we reverse the district court’s order revoking Timmerman’s driver’s license.

            Reversed.