This opinion will be unpublished and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
State of Minnesota,
Jerry Alexander Szulim,
Filed September 18, 2001
Gordon W. Shumaker, Judge
Dakota County District Court
File No. K600663
Mike Hatch, Attorney General, State Capitol, Room 102, St. Paul, MN 55155; and
Stephen A. Baker, Grannis & Hauge, P.A., 1260 Yankee Doodle Road, No. 200, Eagan, MN 55121-2201 (for respondent)
Robert M. Christensen, Robert M. Christensen, P.L.C., Barrister’s Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)
Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
The district court denied appellant’s motion to suppress evidence of his intoxication in a DWI prosecution. Appellant challenges that ruling on appeal, arguing that the stop of his vehicle constituted an illegal seizure. Because the stop was proper, we affirm.
As appellant Jerry Szulim was leaving the Moose Country bar at about 1:00 a.m. on January 29, 2000, he saw a green Dodge pickup truck strike a parked car in the bar’s parking lot and then immediately leave the lot. Szulim followed in his red Ford pickup truck.
In the meantime, Mendota Heights police officer Lee Flandrich received a report of the hit-and-run, and he drove to the bar. Other witnesses told Flandrich that the suspect was driving a Dodge pickup and was southbound on I-35E. Flandrich gave chase.
As he drove along I-35E, Flandrich noticed ahead of him a pickup truck that was speeding and driving erratically. Thinking this might be the pickup involved in the hit-and-run, Flandrich pulled it over. The driver was not the suspect but rather Szulim, who told Flandrich that the suspect vehicle was a green Dodge and that it was just ahead. The testimony diverges as to what occurred next. Szulim claims that Flandirch told him to follow the squad. Flandrich contends that he told Szulim to “stay put” and that, for safety reasons, he would never tell a citizen to follow him while he pursued someone suspected of violating the law. The district court found Flandrich’s version of this encounter to be true.
After Flandrich left the scene of this conversation, Szulim put a rotating yellow construction light on his dash and followed the squad car.
Ultimately, the suspect Dodge pickup was stopped and various law-enforcement officers became involved. When Szulim arrived at the scene of the stop he spoke to state patrol trooper David Kalinoff. The trooper noticed indicia of intoxication and arrested Szulim for driving while under the influence of alcohol.
During an omnibus hearing, Szulim moved to suppress the evidence of his consumption of alcohol because the stop of Szulim’s pickup was without a proper legal basis and, therefore, constituted an illegal seizure. Ruling that no seizure had occurred, the district court denied the motion. Szulim appeals, challenging this ruling.
D E C I S I O N
On appeal from pretrial suppression orders, this court independently reviews the facts to determine whether the district court erred in its ruling. State v. Harris,590 N.W.2d 90, 98 (Minn. 1999). We will not set aside a district court’s findings of fact unless they are clearly erroneous. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). The credibility of witnesses is an issue for the trier of fact. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Questions of law receive de novo review. State v. Camacho, 561 N.W.2d 160, 170 (Minn. 1997).
The district court found that Officer Flandrich stopped Szulim’s pickup by mistake, and the court accepted as true Flandrich’s testimony that he told Szulim to “stay put.”
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. Cortes, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981)). The legal threshold for an investigatory stop is low. Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). But the stop cannot be the “product of mere whim, caprice, or idle curiosity.” Id. (quotation omitted). A law-enforcement officer need not be absolutely certain that “criminal activity may be afoot” so long as his suspicion is reasonable. Terry v. Ohio, 392 U.S. 1, 27, 30, 88 S. Ct. 1868, 1883-84 (1968).
Witnesses at the bar told Flandrich and his partner that the suspect vehicle was a Dodge pickup. The district court found that Szulim was driving a Ford pickup. In his brief Szulim refers to his vehicle variously as a “red Chevy pickup that had a big blue Ford emblem in the corner of the tailgate,” a “red Ford pickup that clearly displayed a big blue Ford emblem,” and “[a]ppellant’s red Chevy pickup truck.”
Apparently Szulim’s vehicle was not a Dodge, but it was a pickup truck driving rapidly in the same direction as the suspect vehicle. The incident occurred at night, and it is common knowledge that eyewitnesses are not always accurate in their descriptions. Szulim’s pickup was the type of vehicle involved in the hit-and-run; it was in the general vicinity of the incident; it was traveling in the same direction as the offending pickup; and its excessive speed could be interpreted as evasive. These were sufficient objective facts to permit an investigatory stop.
Szulim argues that the stop was a seizure and that the officer’s command to follow the squad kept the seizure operative to the scene of Szulim's arrest.
A seizure occurs when the reasonable person believes that he is not free to disregard police questions or to terminate the stop. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). Officer Flandrich told Szulim to “stay put,” and then Flandrich drove off in rapid pursuit of the Dodge pickup. Almost immediately after Flandrich left, Szulim drove off. It is thus apparent that Szulim did not believe he was required to “stay put.” We agree with the district court’s conclusion that
[i]f [Szulim] had truly felt his freedom of movement restrained by Officer Flandrich’s command to stay put then he would not have felt free to follow the police chase against this direct command.
The district court did not err in denying Szulim’s motion to suppress evidence.