This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
David Norton Keith,
Dakota County District Court
File No. K3992007
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)
John M. Stuart, State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414-3230; and
Mark D. Nyvold, 1030 Minnesota Building, 46 E. Fourth Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Huspeni, Judge.
Appellant challenges the trial court’s dismissal of its complaint against respondent for fifth-degree possession of a controlled substance. The trial court concluded that under the totality of the circumstances, there were insufficient specific and articulable facts, together with rational inferences from those facts, to reasonably warrant an intrusion by opening the car door. We reverse.
On March 16, 1999, the manager of the Oasis Market (station) in Burnsville called the police dispatcher to report that there were two individuals in a car in the parking lot of the station cutting what the caller believed to be cocaine. She stated that she had been outside the station and was now inside observing them through the camera installed outside.
Officer Jeffrey Behnken was dispatched to the station, and the informant was kept on the phone with the dispatcher. Officer Behnken observed respondent David Keith for approximately 30 seconds to one minute. He noticed that Keith was alone in the car, and that there was a woman by the payphone. Based on the physical description of the car and its location, he knew that he had the right car. As a second squad car was arriving, Officer Behnken approached the parked car and opened the front passenger door, where Keith was sitting, at which point a four-inch glass tube, used for smoking crack, fell on the ground. The officer asked Keith if he could search the car, and Keith consented. Nothing additional was found. After the tube was analyzed, it was discovered that it contained traces of a controlled substance. After Keith was arrested, Officer Behnken spoke to the manager.
Keith was charged with fifth-degree possession of a controlled substance. At the omnibus hearing, the court granted Keith’s motion to suppress the glass tube and dismissed the complaint of appellant State of Minnesota, concluding that under the totality of the circumstances, there were insufficient specific and articulable facts, together with rational inferences from those facts, to reasonably warrant an intrusion. The state appeals.
D E C I S I O N
As a preliminary matter, the parties concede, and we agree, that the critical impact requirement for pretrial appeals by the state has been met in this case because the trial court dismissed the complaint. State v. Kim, 398 N.W. 2d 544, 547 (Minn. 1987).
When reviewing pretrial orders on motions to suppress evidence, [this court] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.
State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted). “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) (citation omitted). This court reviews findings of fact for clear error, giving due weight to the inferences drawn from those facts by the district court. State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).
Limited stops to investigate suspected criminal activity are commonly known as Terry stops. See generally Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). Terry and its progeny allow the police to conduct limited stops to investigate suspected criminal activity when the police can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S. Ct. at 1880. “The factual basis for the stop need not arise from the officer’s personal observation, but may be supplied by information acquired from another person.” Playle v. Commissioner of Pub. Safety, 439 N.W.2d 747, 748 (Minn. App. 1989) (citation omitted). It is presumed that information from a private citizen is reliable. Id.
The trial court concluded that “[u]nder the totality of the circumstances, there were insufficient specific and articulable facts, together with rational inferences from those facts, to reasonably warrant the intrusion.” We disagree with that conclusion.
The facts that led to the officer’s suspicion that Keith was participating in illegal conduct came from a citizen informant. In order for an officer to have specific and articulable facts sufficient to warrant an intrusion based on information from a citizen informant, it is important that (1) the police know something about the informant indicating that she is truthful and (2) the informant’s knowledge has a factual basis. See State v. Davis, 393 N.W2d 179, 181 (Minn. 1986) (stating that in previous case the police did not have specific articulable facts sufficient to warrant an intrusion where nothing was known about the informant or about what led him to believe that the driver was “possibly” drunk). But, ultimately, we determine whether under the totality of the circumstances the intrusion was warranted. See Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328 (1983).
When an informant provides sufficient information so that he may be located and held accountable for providing false information, the officer is justified in assuming the caller is being truthful in so identifying himself.
Playle, 439 N.W.2d at 748. Here, the informant identified herself as the manager at the Oasis Market in Burnsville. The investigating officer knew the identity and location of the informant. We conclude that the officer was justified in assuming that the informant was truthful and reliable. See id. at 749 (stating that because the informant identified himself as an employee of a particular Burger King, he provided enough information to be located and held accountable for any false information and, therefore, it was presumed the information was truthful).
Keith does not actually question the credibility of the informant, but chooses instead to argue that she had no valid basis in fact for the information which she provided. See Davis, 393 N.W.2d at 181 (stating that in order for an officer to have specific and articulable facts sufficient to warrant an intrusion based on information provided by an informant, the informant should have a factual basis for his knowledge). We conclude that Keith’s challenge has no merit. Here, the manager told the dispatcher that two people in a car parked by a gas pump at the Oasis Market were cutting up what she believed was cocaine. The manager observed Keith and the other individual while she was standing outside the gas station, as well as from her office through the camera system. This evidence presents a valid basis for the information provided to the officer. See id. (finding that there was a valid basis in fact for the information provided by the informant, where the informant drove past a police car and screamed from her window that she saw the car behind her had run a red light); Marben v. Department of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (finding that there was a valid basis in fact for the information provided by the informant where a police officer received a CB radio communication from an unidentified trucker who asked the officer to check out a vehicle the trucker had seen tailgating him.)
Keith argued at the omnibus hearing, and the court agreed, that the officer’s act of opening the car door constituted a seizure and that such an intrusion was unwarranted. We agree that a seizure occurred. See Vivier v. Commissioner of Pub. Safety, 406 N.W. 2d 587, 590 (Minn. App. 1987) (stating that while a seizure occurred when the officer opened the car door and asked the passenger to get out, the seizure was reasonable). We conclude, however, that it was a permissible one. This conclusion is supported by both United States Supreme Court and Minnesota caselaw.
In Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S. Ct. 330, 332-33 (1977), the United States Supreme Court held that it was lawful to order a passenger out of a car. In State v. Ferrise, 269 N.W.2d 888, 890-91 (Minn. 1978), the Minnesota Supreme Court relied on Mimms in concluding that it is not unlawful for a police officer to open a car door without first knocking. In Ferrise, the police stopped a vehicle that was driving the wrong way on a road, which they suspected was involved in a robbery. Id. at 889. The driver exited the vehicle and, upon showing no license, was placed in the police van for further inquiry. Id. One of the officers then approached the suspect’s vehicle, where a passenger sat, and opened the passenger door without knocking. Id.
The Minnesota Supreme Court upheld this action by the police officer, explaining that under the circumstances, the intrusion was minimal and completely reasonable and proper. Id. at 891. The court reasoned as follows:
If an officer orders a driver to get out of his car, as in Mimms, what he in effect is doing is also ordering the driver to open the door, because that is generally the only reasonable way a person can get out of a car. Operationally then, there is little practical difference between ordering a driver to open his door and get out of his car, on the one hand, and opening the door for the driver and telling him to get out, on the other. In this case, if the driver had not gotten out of the car on his own, the officer could have opened the door and told him to get out.
Id. at 890. In Ferrise, as here, the police officer opened a passenger door, not the driver’s door. The Minnesota Supreme Court found that action to be permissible:
[T]he Mimms analysis would seem also to justify a policy of ordering passengers out. The same concern of the officers for their own safety applies, and the intrusion on the rights of the passengers occasioned by being required to get out of the car is no greater than the intrusion on the rights of the driver.
In this case, the police officer had a reasonable articulable suspicion in approaching the vehicle based on the informant’s tip. In light of Ferrise and Mimms, we conclude that under the totality of the circumstances the police officer’s act of opening the passenger door without knocking was a minimal intrusion and a reasonable one. Accordingly, we conclude that the trial court clearly erred in suppressing the glass pipe and dismissing the complaint.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.