This opinion will be unpublished and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,
John William Prather,
Hennepin County District Court
File No. 01071643
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Wynn C. Curtiss, Miller, Steiner & Curtiss, P.A., 1011 First Street South, Suite 400, Hopkins, MN 55343 (for respondent)
Michael J. Brandt, Allan H. Caplan & Associates, P.A., 10 South Fifth Street, Suite 525, Minneapolis, MN 55402 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and, Huspeni, Judge.
In this appeal from a conviction for gross misdemeanor DWI, appellant argues that the police officer who followed his car, observed no traffic violations, and stopped him after he pulled over to switch places with a passenger, lacked a reasonable articulable suspicion to support the investigatory stop. Because the record does not reflect any evasive action by appellant, and because the officer articulated no other reasonable suspicion to stop appellant and the record reveals none, we reverse.
While on patrol just after 12:30 a.m., on August 18, 2001, Officer Michael Glassberg observed appellant John Prather driving in front of him. Glassberg followed appellant’s car for two or three blocks, at which point appellant stopped at a stop sign and continued straight. Glassberg began to turn when he observed appellant pull his car “suddenly” to the curb. The spot where appellant stopped was marked “No Parking.” Appellant and a passenger stepped out and switched seats. Rather than turning, Glassberg accelerated toward appellant’s car, activated his red emergency lights, and parked behind appellant. Glassberg approached the car, detected the odor of alcohol on appellant, performed field sobriety tests on him, and arrested him for driving while impaired.
At the suppression hearing, Glassberg testified that he would have pursued appellant had appellant attempted to drive away. When asked whether he signaled his turn as appellant continued driving straight ahead after stopping at the stop sign, Glassberg replied, “I can’t say for sure.” The district court ruled that, given the time of day, the abrupt stop in a no-parking zone, and the driver/passenger switch, the officer had a reasonable basis to stop appellant. The parties agreed to a Lothenbach trial, and appellant was found guilty of driving while impaired under Minn. Stat. § 169A.20, subd. 1(5) (2000).
We review the basis for an investigatory stop de novo and underlying factual findings under a clearly-erroneous standard. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). The facts here are undisputed.
Both the United States and Minnesota Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Investigatory motor vehicle stops implicate the right to be free from unreasonable seizures. State v. McKinley, 305 Minn. 297, 303, 232 N.W.2d 906, 910 (1975). A stop cannot be based on mere whim, caprice, or idle curiosity. State v. Capers, 451 N.W.2d 367, 370 (Minn. App. 1990), review denied (Minn. Apr. 25, 1990). An officer’s mere “hunch” or subjective opinion is not an adequate basis for a stop. Britton, 604 N.W.2d at 87.
Articulable, objective facts that, by their nature, quality, repetition, or pattern become so unusual and suspicious that they support at least one inference of the possibility of criminal activity, are what will be necessary to justify an investigatory stop of a motor vehicle.
State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001), review denied (Minn. July 24, 2001). The reasonableness of an investigatory stop depends on a balancing of the need for the stop against the invasion that it entails. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879 (1968). An officer is justified in making a stop when the totality of the circumstances points to some observable “unusual conduct * * * [that leads the officer] reasonably to conclude in light of his experience that criminal activity may be afoot.” Id. Such circumstances include
the officer’s general knowledge and experience, the officer’s personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.
Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).
An investigativestop is permitted when a driver initiates a single evasive maneuver after viewing police. See, e.g., State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (driver made “quick turn” off highway seconds after looking trooper “in the eye,” doubled back, and returned to highway); State v. Petrick, 527 N.W.2d 87, 87 (Minn. 1995) (after police car began following him, driver turned into first available driveway, immediately shut off car lights, and continued to proceed down “fairly long driveway”). But see Schrupp, 625 N.W.2d at 848 (no reasonable articulable suspicion when male driver quickly turned into private driveway so that officer believed driver was evading him, and male driver spoke briefly with person in driveway, yet car was registered to a woman in another city). Moreover, “if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.” State v. George, 557 N.W.2d 575, 578 (Minn. 1997).
Appellant contends that the officer had no constitutional basis to stop him because appellant neither took evasive action nor violated any traffic law. Respondent argues, however, that pulling over abruptly and switching places with a passenger, after being followed by a police officer for three blocks at 12:30 a.m., leads to the reasonable inference of criminal activity—that one is driving either under the influence or without a valid license. Respondent further suggests that appellant must have been trying to avoid the officer because appellant decided to stop and switch only after the officer began to turn. It is not at all clear, however, that appellant pulled over with the belief that the officer was going to turn away. The officer replied, “I can’t say for sure,” when asked if he had signaled a turn. In fact, there is no evidence in the record tending to show that appellant knew that there was a car behind him or that the car was a police car. While it is possible that appellant was aware that the officer was behind him, it is the objective facts known to the officer that are relevant. See Terry,392 U.S. at 21-22, 88 S. Ct. at 1880 (asking whether “the facts available to the officer at the moment of the seizure” permit one of reasonable caution to believe that the action taken was appropriate). Unlike in Johnson,the officer here never claimed that appellant acknowledged his presence, such as by making eye contact. And unlike in Petrick, appellant did not extinguish his lights when he pulled over. Without any facts in the record suggesting that appellant knew that the officer was behind him, it would be pure speculation to assume that appellant pulled over to evade the officer.
The officer did not claim that there was any irregularity in appellant’s driving or physical behavior that would have indicated possible intoxication. The officer could not point to any illegal behavior or suspicious activity, nor was there any suggestion that appellant might need help.
Respondent argues that appellant stopped in a no-parking zone, which itself would be a basis for the stop. We disagree. First, the officer did not state—either in his report or at the hearing—that he decided to detain appellant because appellant had stopped in a no-parking zone. The officer only stated that, after appellant pulled over and switched places with a passenger, he decided to “investigate further.” Second, we recognize that, even if the officer is unable to articulate a proper basis for the stop, if a proper basis does in fact exist, the stop will be legal. See George, 557 N.W.2d at 578-79 (stating that any traffic violation, however slight, justifies a stop, but finding no reasonable basis for the stop when the driver’s motorcycle had no equipment violations nor reasonably appeared to be violating any other law). We examine whether stopping briefly in a no-parking zone would support the officer’s action here.
Appellant argues that his car was not “parked” in the statutory sense. We agree. Minn. Stat. § 169.34(a)(14) (2000) provides:
No person shall stop, stand, or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or traffic-control device, in any of the following places: * * * at any place where official signs prohibit stopping.
Minn. Stat. § 169.01, subd. 56 (2000), defines “standing” as
the halting of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in receiving or discharging passengers.
And “stopping” means
any halting even momentarily of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or traffic control sign or signal.
Id., subd. 58 (2000). Moreover, the term
park, as used in a statute or ordinance, does not comprehend or include merely temporary or momentary stoppage but rather connotes a stoppage with the intent of permitting the vehicle to remain standing for an appreciable length of time.
Ford v. Stevens, 280 Minn. 16, 19, 157 N.W.2d 510, 513 (1968).
Therefore, our review of the statutes causes us to conclude that it is not a violation of the law to “stand” in a zone that prohibits parking. Because appellant’s headlights remained illuminated, the engine was running, and appellant and the passenger immediately stepped back into the car after switching seats, it is clear that appellant’s car was “standing” in a no-parking zone; it was not parked.
The officer did not articulate an adequate basis for the investigative stop, nor does the record reveal an adequate basis. The officer’s testimony suggests that he decided to stop appellant because he had a hunch that appellant did not want to be caught driving. This is an inadequate basis upon which to make an investigatory stop.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Respondent, while conceding at the hearing and at oral argument that the officer’s actions were a seizure, suggests nonetheless that this stop “barely qualifies as a seizure.” While less than probable cause may be required to initiate an investigatory stop, this case clearly involves a seizure, and the qualifier “barely” is irrelevant. A seizure occurs when a reasonable person no longer feels free to leave. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). Appellant testified that he did not feel free to leave, and the officer testified that he would have pursued had appellant driven away.