This opinion will be unpublished and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,
Joel William Bishop,
Filed December 4, 2001
Hubbard County District Court
File No. T0-00-2330
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John Masog, 201 South Main Street, Park Rapids, MN 56470 (for respondent)
Jannelle R. Steger, Thorwaldsen, Malmstrom, Sorum, Donehower & Wilson, P.L.L.P., 1105 Highway 10 East, P.O. Box 1599, Detroit Lakes, MN 56502 (for appellant)
Considered and decided by Hanson, Presiding Judge, Randall, Judge, and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
R. A. RANDALL, Judge
Appellant challenges his conviction for driving under the influence in violation of Minn. Stat. § 169.121, subd. 1(a), (d), (e) (2000). Appellant contends that the officer did not have a reasonable and articulable suspicion to stop appellant within the city limits, arguing that the officer did not observe appellant's vehicle cross the center and fog lines until appellant traveled beyond the city limits. We affirm.
On September 21, 2000, at approximately 1:30 a.m., Officer Scott Parks was on routine patrol in the City of Park Rapids. The officer observed a vehicle, driven by appellant Joel William Bishop, traveling north on Highway 71 one or two blocks north of the intersection of Highway 71 and Highway 34. The officer observed the vehicle cross both the center and fog lines several times. Although the officer could not recall specifically how many times the vehicle crossed the center or fog lines, he explained that as a "general rule" he does not stop a vehicle unless it crossed the fog line, center line, or a combination of both, "at least three times." He first observed the vehicle cross the fog line when the vehicle was at the first curve in town near the Cenex Store. The officer indicated on a city map the location where he first observed the vehicle weaving, and that location is within the city limits.
The officer explained that northbound Highway 71 at the north end of the city contained three curves: the first curves to the left past the Cenex Store; the second curves immediately back to the right; and the third curves to the left and is a "long sweeping curve." The first two curves are next to each other inside the city limits. The north line of the city limits is located at the road near a truck stop known as the "Oasis." The officer testified that he followed the vehicle north on Highway 71 outside the city limits for approximately three-quarters of a mile to a mile. The officer decided for "safety reasons" to wait to stop the vehicle until the vehicle passed through the third curve. Once past the third curve, the officer activated his overhead lights. The officer admitted he stopped appellant north of the city limits. The officer arrested the appellant for driving under the influence of alcohol.
Appellant testified that he was proceeding northbound on Highway 71 through the City of Park Rapids. According to appellant, it rained the morning before and conditions were cloudy and "really dark." He claimed he did not notice any overhead police lights in his rearview mirror while he was within the city limits. Appellant said he first observed overhead police lights in his rearview mirror about a mile to a mile and a quarter outside the city limits.
Appellant moved the district court to dismiss the charges, arguing that the officer lacked reasonable and articulable suspicion for the stop within the city limits. The district court denied appellant's motion and found that the officer had reasonable suspicion to stop appellant. This appeal follows.
Appellant contends that the officer engaged in an unlawful traffic stop. Appellant argues that the officer did not have a reasonable and articulable suspicion justifying the stop because the officer did not observe appellant crossing the center and fog lines until appellant traveled beyond the city limits.
When "reviewing a district court's determinations of the legality of a limited investigatory stop," an appellate court reviews questions of reasonable suspicion de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (citation omitted). 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."
Id. (quoting Terry v. Ohio, 392 U.S. 1, 21, 99 S. Ct. 1868, 1880 (1968)). If the police officer has a "particularized and objective basis for suspecting the particular person stopped of criminal activity," the investigatory stop is valid. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981) (citations omitted). All that is required is that the stop not be the product of mere whim, caprice, or idle curiosity. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). An appellate court considers the totality of the circumstances in determining whether the officer had a reasonable basis justifying the stop. Cortez, 449 U.S. at 417, 101 S. Ct. at 695.
Appellant does not dispute that his vehicle crossed the center and fog lines at least three times. Minn. Stat. § 169.18, subd. 7(a) (2000) requires that a vehicle "be driven as nearly as practicable entirely within a single lane," and a violation of the traffic laws ordinarily provides an officer with a reasonable basis to stop the vehicle. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Therefore, the officer had a reasonable basis to stop appellant. See State v. Dahlheimer, 413 N.W.2d 255, 256 (Minn. App. 1987) (finding reasonable suspicion when vehicle crossed center line four times and made false turning movement toward exit ramp); Shull v. Comm'r of Pub. Safety, 398 N.W.2d 11, 14 (Minn. App. 1986) (finding reasonable suspicion when driver drove slower than necessary and crossed center line). Appellant's argument is jurisdiction, not the observable facts. Appellant argues that the officer did not observe appellant's vehicle cross the center and fog lines until the vehicle traveled outside the city limits and thus argues that the officer was without jurisdiction to lawfully stop his vehicle. Appellant asserts that the officer first observed the vehicle cross the center and fog lines outside the city limits, north of the Oasis. The record does not support appellant's argument. The officer testified that he first observed the weaving behavior within the city limits: "The first very obvious point where the vehicle crossed the line * * * was at the curve by the Cenex Store, the first curve in town." Additionally, the officer indicated on a map of the city the location where he first observed the irregular driving behavior. The location is within the city limits. We conclude the officer had reasonable and articulable suspicion of criminal behavior within the city limits. That the officer waited and did not immediately stop the vehicle is of no legal significance. See Shull, 398 N.W.2d at 14 (noting officer's decision not to stop driver immediately after observing facts supporting stop is of no legal significance).
Moreover, whether the officer first observed irregular driving slightly before or slightly past the exact line of the city limits is not determinative. Even if the officer did not observe the irregular driving behavior until after appellant exited the city limits, the officer still had the authority to stop appellant. Peace officers, as defined in § 626.84, subd. 1(c) (2000), may arrest anywhere in the state under certain circumstances:
When a person licensed under section 626.84, subdivision 1, in obedience to the order of a court or in the course and scope of employment or in fresh pursuit as provided in subdivision 2, is outside of the person's jurisdiction, the person is serving in the regular line of duty as fully as though the service was within the person's jurisdiction.
Minn. Stat. § 629.40, subd. 3 (2000) (emphasis added). State v. Tilleskjor examined an earlier version of Minn. Stat. § 629.40. State v. Tilleskjor, 491 N.W.2d 893, 894 (Minn. 1992). In Tilleskjor, the officer stopped the defendant's vehicle for weaving within its lane and subsequently arrested the defendant for DWI. Id. That officer testified at the omnibus hearing that he was uncertain whether he observed the defendant weaving inside or outside the city limits. Id. The Minnesota Supreme Court concluded that the statute was "without ambiguity" and "clearly gave the officer all the authority * * * to act as he did." Id.
This court has refused to interpret narrowly the "in the course and scope of employment or in fresh pursuit" in Minn. Stat. § 629.40, subd. 3. In State v. Bunde, while patrolling several miles outside the city, the officer saw a car run a stop sign, and while following that car, the officer noticed Bunde lying back in the driver's seat. State v. Bunde, 556 N.W.2d 917, 919 (Minn. App. 1996). This court found that the officer acted in the course and scope of his employment when he arrested the defendant "even though he was outside his municipality at the time * * * [and] his mission also commenced outside that jurisdiction." Id. at 920.
We find nothing unusual about a city police officer going a block or two outside of town before he turns around to head back. Most small towns have residential homes located a few blocks outside the city limits, yet the residents call the town their home. It is not unreasonable for a city officer to patrol these nearby residential areas. Here, there is no indication that the officer was not acting in the course and scope of his employment. He was on regular patrol on Highway 71, a main highway through the city. For the sake of argument, even if the police officer did not technically observe appellant's vehicle crossing the center and fog lines until appellant exited the city limits, the officer was still acting in the course and scope of his employment, and under Minn. Stat. § 629.40, subd. 3, the stop was authorized.
Obviously, city limits serve important functions, and courts interpret a city's boundary strictly for purposes such as voting, running for elections, defining taxing districts, and authorizing property assessments. See, e.g., Imperial Refineries of Minn., Inc. v. City of Rochester, 282 Minn. 481, 485, 165 N.W.2d 699, 702 (Minn. 1969) (discussing lack of authority for authorizing assessment against county fair property located outside city limits). This case involves public safety. If a city police officer routinely travels a short distance out of town, perhaps because the only restaurant in town with a good cup of coffee at night is a few blocks out of town, no harm is done to anyone if he does not shut his eyes to criminal activity during that few-block stretch. We are not addressing the situation where a city police officer drove several miles out of town "freelancing" for evildoers because there was no "action" within his city limits. That would be a case for another day. What we are talking about here is the statutory phrase "course and scope of employment." First, the record supports a conclusion that the first observable erratic driving occurred within the city limits. But even if the record did not support that finding conclusively, it was so close to the city limits (appellant concedes at least that much) that we find the officer was acting in the course and scope of employment.
Appellant argues that under Bunde, the state must present affidavits or other evidence that the officer regularly patrolled outside the city limits. Bunde, however, does not require such evidence to establish that the officer was acting within the scope of his employment. When both sides are arguing over a short distance, a case-by-case analysis will suffice to determine whether the officer was acting within the scope of his employment. We have refused to impose limitations in Minn. Stat. § 629.40, subd. 3, that the legislature did not specify in the statute. Lorenzen v. Comm'r of Pub. Safety, 594 N.W.2d 552, 555 (Minn. App. 1999) (concluding that "any change in the law in this area must come from [the supreme court] or the legislature"). In this case, we do not mandate that the state present affidavits or other evidence to establish that the city's officers regularly patrolled a short distance outside of the city limits on Highway 71. That interpretation would read a requirement into Minn. Stat. § 629.40, subd. 3, that the legislature and caselaw have yet to impose.
Appellant also argues that if this court concludes the evidence obtained after the stop should have been suppressed, the officer lacked probable cause to arrest appellant. Since we have determined that the officer had reasonable and articulable suspicion for the stop, the suppression issue is moot.
Appellant's argument that the officer did not have authority to arrest him under the private-citizen-arrest statute deserves comment. A police officer outside of his or her jurisdiction has the arrest powers of a private citizen. Minn. Stat. § 629.37 (2000); State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981). Arrestable offenses include misdemeanors, State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 794 (Minn. 2000), and even petty misdemeanors, State v. Sellers, 350 N.W.2d 460, 462 (Minn. App. 1984). When
circumstances lead a police officer to suspect something may be wrong with a driver, the officer, acting as a private citizen, is authorized to stop the driver's vehicle.
State v. Halvorson, 356 N.W.2d 376, 377-78 (Minn. App. 1984) (citing State v. Schinzing, 42 N.W.2d 105, 108 (Minn. 1983)). Although Minn. Stat. § 629.37 does not define the level of evidence required to show that a public offense has been committed in one's presence, the supreme court uses a probable cause standard. Horner, 617 N.W.2d at 795. To form the probable cause necessary for a driving while impaired offense, the citizen must observe "at least one more or less objective indication of intoxication." Keane v. Comm'r of Pub. Safety, 360 N.W.2d 357, 359 (Minn. App. 1984) (citations omitted). A police officer, even when outside his jurisdiction and not within the scope and course of his employment, has the arrest powers of a private citizen, including arrests or misdemeanors and traffic offenses. Here, the officer observed appellant's vehicle cross the center and fog lines at least three times. These facts could support a citizen's arrest.