This opinion will be unpublished and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

C2-01-483

 

State of Minnesota,
Respondent,

vs.

Ricky Joe Simmons,
Appellant.

 

Filed August 21, 2001

Reversed

Stoneburner, Judge

 

Blue Earth County District Court

File No. K2001890

 

 

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

 

Christopher D. Cain, Mankato City Attorney, 10 Civic Center Plaza, Box 3368, Mankato, MN 56002 (for respondent)

 

John M. Stuart, State Public Defender, Theodora K. Gaïtas, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*


U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

Appellant challenges his conviction of gross-misdemeanor DWI, arguing that the district court erred in denying his motion to suppress evidence obtained pursuant to an investigatory traffic stop that was based solely on an anonymous tip.  Because we conclude that the tip did not give the police a reasonable suspicion to believe that appellant was driving under the influence of alcohol, we reverse.

FACTS

On October 18, 2000, a Mankato police dispatcher received an anonymous tip from someone who claimed to be calling from Mum’s the Word, a bar.  The caller reported that an adult male had problems finding his car and that when he found it, he had a “tough time” opening the door with the key.  The caller reported the vehicle’s license plate, BXL 159.  The dispatcher determined that appellant Ricky J. Simmons, 178 Lime Valley Road, was the registered owner of the vehicle.

A police officer who received this information went to Simmons’s street, where he saw Simmons driving his vehicle and stopped him.  The officer did not see any erratic driving or other traffic violation before stopping Simmons.

When the officer approached the car and asked Simmons for identification, he noted that Simmons smelled strongly of alcohol and had glossy, bloodshot eyes.  Simmons was not asked to perform field sobriety tests because he suffers from muscular dystrophy.  Simmons told the officer that he had approximately four drinks at Mum’s the Word.  Simmons failed a preliminary breath test.  The officer arrested Simmons.  A blood test later showed that Simmons’s had a blood-alcohol concentration of .22.

Simmons was charged with misdemeanor and gross-misdemeanor DWI.  Simmons moved to suppress the evidence from the traffic stop.  The parties submitted the issue of the legality of the stop to the district court on the arresting officer’s report alone.  The court denied Simmons’s motion to suppress.  Simmons waived his right to a jury trial and submitted the issue of his guilt to the court on stipulated facts.  The district court found Simmons guilty of both charges and sentenced him on the gross-misdemeanor DWI.  Simmons appeals from the denial of his motion to suppress.

D E C I S I O N

Under Terry v. Ohio and its progeny, the police may “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.’”  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (quoting Terry v. Ohio, 392 U.S. 1, 21, 99 S. Ct. 1868, 1880 (1968)).  Terry applies to investigatory traffic stops.  Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980); State v. McKinley, 305 Minn. 297, 302, 232 N.W.2d 906, 910 (1975).  If an anonymous tip bears “indicia of reliability,” it may justify such a stop.  See Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985) (quoting Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct 1921, 1923-24 (1972)).  “In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.”  Britton, 604 N.W.2d at 87 (citing State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999)). 

Simmons argues that the police officer did not have a reasonable suspicion to make an investigatory stop of his vehicle based on the anonymous tip.  We agree.  In Olson, the supreme court concluded that there were insufficient indicia of reliability where police made an investigatory traffic stop solely on the basis of an anonymous tip concerning a “possibly * * * drunken driver,” where the caller described the make, license plate, location, and direction of travel of the suspected driver’s vehicle.  371 N.W.2d at 553.  The Olson court held that where the police make an investigatory stop on the basis of an anonymous tip alone, the caller must provide “some specific and articulable facts to support the bare allegation of criminal activity.”  Id. at 556.

Not much is required, especially for a traffic stop for a suspected traffic offense then in progress.  All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.

 

Id.  (quotations omitted).  The court concluded that on the record before it, there was

a complete lack of even the most minimal indicia of reliability for the anonymous tip.  If police cannot stop a car on the highway on the basis of mere whim, neither can they stop on the basis, for all they know, of the mere whim of an anonymous caller.

 

Id. 

Here the police made an investigatory traffic stop solely on the basis of the anonymous tip that a man had trouble finding his car and opening the car door.   The record contains no evidence that the caller had seen Simmons drinking alcohol or personally witnessed his trouble finding his car.  There is nothing in the record to support the officer’s conclusion that the difficulties reported resulted from intoxication.  See State v. Hjelmstad, 535 N.W.2d 663, 664 (Minn. App. 1995).

Further, the record contains no evidence about the caller from which he or she could have been identified and held responsible for the tip.  See, e.g., City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890 (Minn. 1988) (upholding stop where caller identified himself as an attendant of particular gas station); State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986) (upholding stop where police had face-to-face discussion with tipster); State v. Pealer, 488 N.W.2d 3, 5 (Minn. App. 1992) (upholding stop where known informant gave driver’s name and location and description of vehicle); Playle v. Commissioner of Pub. Safety, 439 N.W.2d 747, 749 (Minn. App. 1989) (upholding stop where circumstances indicated reported observations were personally made by caller, who identified himself as an employee of Burger King).

The anonymous tip was an insufficient basis for the stop.  The district court erred in denying Simmons’s motion to suppress.

            Reversed.

 



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