This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





David Wayne Elvig,



Filed April 17, 2001


Shumaker, Judge


Anoka County District Court

File No. K6995180


Mike Hatch, Attorney General, 102 Capitol Office Building, Aurora Avenue, St. Paul, MN 55103; and


Thomas M. Fitzpatrick, Randall, Dehn & Goodrich, 2140 Fourth Avenue North, Anoka, MN 55303 (for respondent)


Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)



            Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Poritsky, Judge.*

U N P U B L I S H E D  O P I N I O N




            Appellant David Wayne Elvig challenges his conviction of misdemeanor driving while under the influence of alcohol, arguing that the district court abused its discretion in determining that the arresting officer had reasonable, articuable suspicion justifying the stop of Elvig’s vehicle.  We reverse.


            On May 4, 1999, at approximately 1:17 a.m., Officer Gary Voit, an eight-year veteran of the Ramsey Police Department, was on routine patrol in the vicinity of the Saint Anthony Gun Club in the city of Ramsey.  While travelling past the gun club, Voit observed a lone vehicle leaving the club’s parking lot.  Voit was aware that recreational vehicles were parked in the gun club parking lot, but believed that they were parked there solely for storage purposes.  In fact, the gun club permitted overnight guests and did not restrict access to and from the club, even after the club closed at 10:00 p.m. 

            Because the gun club had been closed for more than three hours, Voit became suspicious of the presence of the vehicle coming out of the parking lot.  He suspected criminal activity might have been taking place at the gun club and he decided to stop Elvig’s vehicle.  During Voit’s inquiry he noticed that Elvig exhibited signs of intoxication.  Voit then arrested Elvig for driving while under the influence of alcohol.  The state charged him with two gross misdemeanor counts of driving while intoxicated in violation of Minn. Stat. § 169.121 (1998).  At an omnibus hearing, Elvig moved to dismiss the charges on the ground that Voit’s stop was illegal.  The district court denied the motion.

The parties submitted the case for bench trial on stipulated facts.  The court found Elvig guilty of misdemeanor driving while under the influence, and dismissed the remaining count.  On appeal, Elvig challenges the court’s denial of his motion to dismiss.


            Elvig argues that the officer lacked a reasonable, articuable basis for the stop of his vehicle and thus the stop was unconstitutional.  “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 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 articuable 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, 21, 88 S. Ct. 1868, 1880 (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) (citation omitted); State v. Claussen, 353 N.W.2d 688, 690 (Minn. App. 1984) (recognizing threshold required to stop a vehicle to investigate possible wrongdoing is very low).  An officer’s mere “hunch” is not an adequate basis for a stop.  Britton, 604 N.W.2d at 87.  We determine the propriety of investigative stops by reviewing the “totality of the circumstances” surrounding the stop.  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).  

A reviewing court is not to decide whether the particular officer’s suspicion was genuine, but rather is to examine whether the suspicion was objectively reasonable.  Britton, 604 N.W.2d at 88.  Further, a reviewing court is to be “deferential to police officer training and experience and recognize that a trained officer can properly act on suspicion that would elude an untrained eye.”  Id. at 88-89.  Wholly lawful conduct might justify the suspicion that criminal activity is afoot.  Id. at 89.

Voit’s suspicion was aroused solely because he saw Elvig’s vehicle leaving the parking lot of a business that had been closed for several hours.  Voit observed no furtive conduct, unusual driving, or evasive or elusive maneuver.  We have no doubt that the circumstances were sufficient to cause a trained police office to take notice, but no facts developed that reasonably could provide the officer with an objective, articulable suspicion of criminal activity.  In other words, nothing occurred to elevate the officer’s mere hunch to the level of reasonable suspicion.  Thus, the Terry standard for stopping Elvig’s vehicle was not met.  See State v. McKinley, 305 Minn. 297, 232 N.W.2d 906 (1975) (applying the standard in Terry to motor vehicle stops).  We conclude that the district court erred in denying Elvig’s motion to dismiss the charges.





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