This opinion will be unpublished and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,
Roger Gene Sutten,
Filed April 30, 2002
Lac Qui Parle County District Court
File No. K501016
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
John M. Tollefson, Lac Qui Parle County Attorney, P.O. Box 269, Dawson, MN 56232 for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.
Appellant Roger Sutten was convicted of driving under the influence and driving after cancellation. On appeal, he challenges the district court’s denial of his motion to suppress evidence obtained after a brief investigatory stop. Because we conclude that the district court misapplied the law, we reverse.
Under the Fourth Amendment, an officer must show an articulable and reasonable suspicion that a driver violated traffic laws to justify a brief investigatory stop. U.S. Const. amend. IV; Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980); Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000). Such suspicion exists when an officer has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001) (citation omitted) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690 (1981)); see also United States v. Arvizu, 122 S. Ct. 744, 752 (2002). Courts examining the circumstances relating to an investigatory stop consider the “totality of circumstances” of the incident when determining whether the officer had the requisite “particularized and objective basis” for making the stop. Richardson, 622 N.W.2d at 825.
The basis for this stop was a call to a Minnesota state trooper received from a Madison, Minnesota, dispatcher who had been notified by a South Dakota counterpart of an anonymous tip from a South Dakota driver. The information relayed by the South Dakota dispatcher described erratic driving by a white Plymouth Reliant on Highway 212 in South Dakota, traveling eastbound towards Minnesota.
The Minnesota state trooper who received the information was approximately 35 miles east of the South Dakota border when he received the call and, after traveling westbound for approximately 20 minutes, came upon appellant’s vehicle and stopped it because he concluded that the back taillights resembled the taillight details of a Plymouth Reliant. Although the district court found that appellant’s vehicle resembled that of the one reported to the South Dakota dispatcher, appellant’s vehicle was not a white Plymouth Reliant, but rather a white Buick Park Avenue.
Anonymous tips can be sufficiently reliable when they “provide at least some specific and articulable facts to support the bare allegation of criminal activity.” Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985) (citation omitted). In Richardson, the supreme court found that a stop was justified by a combination of the specificity of the anonymous tip and the officer’s independent observations of erratic driving. 622 N.W.2d at 825. Although the tip here included some specificity, the vehicle stopped by the trooper did not match that information and the trooper made no independent observation of any erratic behavior. See, e.g., Olson, 371 N.W.2d at 556 (finding insufficient reliability where tip described car’s color, model, and license plate number, and identified road and direction of travel); State v. Hjelmstad, 535 N.W.2d 663 (Minn. App. 1995) (finding insufficient reliability where officer told “to look out for” an old Chevy pickup “with a topper and North Dakota license plates” that was traveling east); Schwartz v. Comm’r of Pub. Safety, 422 N.W.2d 761, 762 (Minn. App. 1988) (finding insufficient reliability where tip included car’s direction and highway on which it was traveling and car’s color, model, and license plate number).
We conclude that the stop was illegal because the trooper received an anonymous tip that lacked specificity, stopped a vehicle that did not match the information he received, and failed to observe any illegal activity or erratic driving. The district court therefore erred in denying appellant’s motion to suppress all information obtained from the stop. See State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (“When reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”).