This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-1037

 

State of Minnesota, City of Lake Elmo,

Respondent,

 

vs.

 

Andrew Brian Thueson,

Appellant.

 

Filed January 30, 2001

Affirmed

Shumaker, Judge

 

Washington County District Court

File No. K3991376

 

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Kevin K. Shoeberg, Kevin K. Shoeberg, P.A., Woodbury Business Center, Suite 600, 1890 Wooddale Drive, Woodbury, MN 55125 (for respondent)

 

Michael J. Majeski, Post Office Box 547, Willernie, MN 55090-0547 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

SHUMAKER, Judge

 

Appellant Andrew Thueson challenges his convictions of gross misdemeanor driving while under the influence of alcohol, arguing that the district court (1) abused its discretion in determining that the officers had reasonable, articulable suspicion justifying the stop of Thueson’s vehicle, and (2) failed to make adequate findings supporting its denial of Thueson’s motion to dismiss.  We affirm.

FACTS

            Two North St. Paul police officers were on patrol in a squad car at about 1:00 a.m. on February 7, 1999, when a police dispatcher radioed them that a “possible drunk driver” was traveling east on Highway 36 in a dark-colored pickup truck.

            The officers drove east on Highway 36 but did not see the truck.  Then the squad car driver noticed in his rearview mirror a truck matching the description of the pickup.  The officer moved the squad over to let the truck pass.

            After the truck passed, the officers followed and observed.  They saw the truck cross both the fog line and the centerline about ten times.  They stopped the truck and arrested the driver, Andrew Thueson, for alcohol-related driving offenses.

            Thueson moved to dismiss the charges for lack of an articulable basis for the stop.  The district court denied the motion.  Thueson then agreed to a bench trial on stipulated facts.  The court found him guilty of three gross misdemeanors.  Alleging as error the court’s denial of his motion to dismiss, Thueson appeals.

D E C I S I O N

 

Thueson argues that the officers lacked a reasonable, articulable basis for the stop and that the district court failed to make findings as required by the rules of criminal procedure.

            “In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.”  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  In doing so, this court reviews findings of fact for clear error, “giv[ing] due weight to [the] inferences drawn from those facts [by the district court].”  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657 (1996)).

To be lawful, a stop “must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”  State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981)).  Officers may conduct limited investigative stops when the officers “can ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’”  Britton, 604 N.W.2d at 87 (quoting Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)).  A stop cannot be based on “mere whim, caprice, or idle curiosity.” Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (quotation omitted).  An officer’s mere “hunch” or subjective opinion is not an adequate basis for a stop.  Britton, 604 N.W.2d at 87. 

To determine the propriety of investigative stops, the court reviews the “totality of the circumstances” surrounding the stop.  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).   Thueson contends that under the circumstances present at the time of the stop, the officers did not have a reasonable basis for the stop.

Although Thueson focuses on the communication from the police dispatcher as not providing a sufficient basis for a stop, the facts justifying the stop developed after the truck passed the squad car.  The officer who testified at the omnibus hearing described the repeated weaving of the truck as it proceeded along the highway.  The officer testified that “the vehicle was weaving extremely from side to side of the road in the lane it was in” and “we felt that if it was not stopped it would cause an accident.”

This driving conduct implicated at least two traffic safety laws:

[1]       A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

 

Minn. Stat. § 169.18, subd. 7(a) (1998).

[2]       Any person who operates * * * any vehicle upon any street or highway carelessly or heedlessly * * * in a manner that endangers or is likely to endanger any property or any person, including the driver * * * is guilty of a misdemeanor.

 

Minn. Stat. § 169.13, subd. 2 (1998).

 

The officers had an articulable, objective basis for concluding that Thueson was driving unsafely and thus were justified in stopping him.  See also Marben, 294 N.W.2d at 699 (an actual traffic violation need not be detectable to justify an investigatory stop).

Thueson testified that “there was a high wind out of the north.  And it was bouncing the truck around a little bit.”  From this he argues that the officers had another reasonable explanation for his driving conduct.  The existence of another possible explanation for the conduct does not negate the basis for a proper stop:

The fact that another inference might have been drawn, that [defendant] was driving properly for the conditions, does not negate the fact that [the officer] * * * observed objective facts which made him suspect [defendant] of criminal driving.

 

Shull v. Commissioner of Pub. Safety, 398 N.W.2d 11, 14 (Minn. App. 1986).

Here, the officers had information that there was a “possible drunk driver” in a dark-colored pickup eastbound on Highway 36.  They saw a dark-colored pickup traveling east on Highway 36 and noticed that the truck was weaving.  The totality of the circumstnaces led the officers to suspect that Thueson was an impaired driver.

At the conclusion of the omnibus hearing, the district court denied Thueson’s motion to dismiss, saying:

I don’t have any trouble with this case.  The court has ruled many times, it doesn’t take much to reach an articulable suspicion.  And I found Officer Loeks’ testimony as to the weaving vehicle to be very sound.  And I am, therefore, going to find probable cause * * *.

 

Citing Minn. R. Crim. P. 12.07, Thueson contends that this statement did not constitute a finding adequate to support the court’s conclusion that the officers had probable cause for Thueson’s arrest.  Rule 12.07 applies only to misdemeanors.  Minn. R. Crim. P. 11.07, which applies to felonies and gross misdemeanors, requires findings for the determination of omnibus issues: “When issues are determined, the court shall make appropriate findings in writing or orally on the record.”  Findings are necessary to enable appellate courts on review to ascertain the basis for the ruling.  State v. Morgan, 296 N.W.2d 397, 401 (Minn. 1980).  A remand may be required if the district court fails to make findings that adequately facilitate review.  See Trombley v. Commissioner of Pub. Safety, 375 N.W.2d 97, 99 (Minn. App. 1995) (where there is conflicting testimony and several possible bases for the district court’s decision, the court must make findings of fact).  However, a remand is unnecessary when the appellate court is able to infer the findings from the district court’s conclusions.  Kvam, 336 N.W.2d at 528.

Thueson’s sole challenge at the omnibus hearing was directed at the basis for the stop.  He did not challenge probable cause for his arrest after the stop.  To facilitate appellate review, the district court was required to make findings on the issue in controversy.  In other words, the district court was required to determine the evidentiary basis for its ultimate conclusion.

Addressing the degree of evidence necessary “to reach an articulable suspicion  * * *,” the district court credited the officer’s testimony about Thueson’s weaving vehicle.  From the record, we can readily infer that the court found that the weaving described by one of the arresting officers was the evidentiary basis for the court’s conclusion that the stop was justified.  Thus, the district court did disclose its basis for denying Thueson’s motion to dismiss.  The court’s finding was adequate.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.