This opinion will be unpublished and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, petitioner,
Ronald Scott Hugger,
Anoka County District Court
File No. K7011351
Charles Alan Ramsay, Rebecca Fisher, Ramsay & Devore, P.A., 2151 Hamline Avenue North, Suite 111, Roseville, MN 55113 (for respondent)
Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Hanson, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant State of Minnesota challenges the district court’s pretrial order granting respondent Ronald Scott Hugger’s motion to dismiss for lack of probable cause. Because the district court did not err in ruling that the officer, who saw respondent’s car weaving within its lane and “rubbing the fog line” once, did not have reasonable, articulable suspicion to conduct an investigatory stop of Hugger’s vehicle, we affirm.
To prevail in a pretrial appeal from an order dismissing evidence in a criminal prosecution, the state must establish clearly and unequivocally both that the district court's order will have a critical impact on the state's ability to prosecute the defendant successfully and that the district court erred. State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted).
In order to conduct a brief investigatory stop of a vehicle, the police must have a reasonable suspicion of criminal activity. State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001). 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). In doing so, this court reviews findings of fact for clear error, “giv[ing] due weight to [the] inferences drawn from those facts [by the district court].” State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998) (quotation omitted). This court also considers the totality of the circumstances and acknowledges that trained law-enforcement officers are permitted to make inferences and deductions that would be beyond the competence of an untrained person. State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).
Officer Aldrich testified that he stopped Hugger’s vehicle because he observed it “weaving within its lane” and “rubbing the fog line” once. The district court concluded that this testimony was insufficient to warrant an investigatory stop. We agree.
There is no law against touching the fog line while driving or weaving within one’s lane of traffic. See Minn. Stat. § 169.18, subd. 7(a) (2000) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”); Holstein v. Commissioner of Pub. Safety, 392 N.W.2d 577, 580 (Minn. App. 1986) (holding that drifting toward, but not over, fog line did not provide articulable suspicion). While weaving within one’s own lane is not itself a traffic offense, it may warrant a stop under some circumstances, however. A traffic stop may be upheld so long as there are specific and articulable facts which, taken together with the rational inferences from those facts, warrant an investigatory stop. State v. Engholm, 290 N.W.2d 780, 783-84 (Minn. 1980) (holding stop valid where experienced officer suspected drunk driving when he observed defendant’s car proceeding “at an exceptionally slow speed” and weaving within its lane); see Richardson, 622 N.W.2d at 825-26 (holding stop justified where police saw vehicle driving in erratic manner and suspected violation of Minnesota law); State v. Dalos, 635 N.W.2d 94, 96 (Minn. App. 2001) (holding stop was reasonable where officer observed vehicle weaving continuously for approximately .5 miles).
Officer Aldrich testified only that he saw the vehicle “weaving within its lane” and “rubbing the fog line” once. He never testified as to what his experience as an officer told him about vehicles that are driven in this manner. There was no testimony that from Hugger’s driving conduct he suspected a possible offense or a vehicle in distress. Because weaving and rubbing the fog line are not traffic violations, such inferences were necessary in order to validate the investigatory stop.
However, the state claims that the mere fact that Hugger’s vehicle was weaving was sufficient to warrant an investigatory stop. We disagree. Weaving, by itself, does not warrant an investigatory stop; rather, the officer must observe weaving that is unusual or continuous before conducting the stop. See Richardson, 622 N.W.2d at 825-26 (holding that stop was reasonable where officer observed vehicle driving in “erratic” manner); Kvam, 336 N.W.2d at 528 (holding investigatory stop valid where officer observed “erratic driving” by vehicle that was leaving liquor store and weaving occurred for ¼ mile); Dalos, 635 N.W.2d at 96 (holding that stop was reasonable where officer observed vehicle weaving continuously for approximately .5 miles, which is consistent with drunk driving).
Because the record fails to show that the officer made any rational inferences of a traffic offense from his observations before stopping the vehicle, and there was no evidence in the record regarding the nature or duration of the vehicle’s weaving, we hold that the district court did not err in concluding that the officer lacked a reasonable, articulable suspicion to stop the vehicle.
In addition, on appeal, the state attempted to introduce statements regarding the inferences that Officer Aldrich made from the driving behavior he observed. Because these statements were not before the district court when it made its decision, this court will not consider them on appeal. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (failure to raise issue in district court precludes its litigation on appeal).