This opinion will be unpublished and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

C6-01-2267

 

State of Minnesota,

Respondent,

 

vs.

 

James Walter Maus,

Appellant.

 

Filed September 17, 2002

Affirmed

Harten, Judge

Dissenting, Randall, Judge

 

Chippewa County District Court

File No. T7-01-801

 

John Ashton Price, III, 22530 Forest Ridge Drive, Lakeville, MN 55044 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Dwayne N. Knutsen, Chippewa County Attorney, 102 Parkway Drive, P.O. Box 591, Montevideo, MN 56265 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

            Appellant challenges his conviction of driving while impaired.  He argues that the stop of his car was invalid because the officer did not have an articulable suspicion that he was engaged in criminal activity.  Because we find that the officer did have an articulable and reasonable suspicion that the occupant of appellant’s car may have been involved in criminal activity, we affirm.

F A C T S

 

            At 1:58 a.m. on 8 June 2001, Chippewa County deputy sheriff Tim Bergeland received a call from dispatch that a citizen had reported that a large, older car with no taillights drove into a private driveway on 50th Avenue, parked by the garage for a while, and then left, heading north.  Dispatch identified the citizen as Marge Krueger.  The Krueger residence is located in a rural area with no housing developments or businesses.

            Bergeland, patrolling a few miles northeast of the Krueger residence, proceeded toward the area, driving south on 50th Avenue.  About five to seven minutes after talking with dispatch, he saw a large, older car at a stop sign facing north on 50th Avenue. Bergeland saw no other cars in the area.  Bergeland detained the car while it was stopped.  The car was driven by appellant James Maus.

              Bergeland, who regularly patrols Chippewa County roads, testified that it is uncommon to meet traffic on gravel roads, such as 50th Avenue, late at night.  Bergeland also testified that due to a “steady * * * flow” of vandalism and theft in rural areas of the county, the report from dispatch, and the time and place of the car, he wanted to check out appellant’s car to see if it was the car reported by dispatch; if it was, Bergeland wanted to ascertain why the car had entered and parked at the Krueger residence.

            Bergeland told appellant about the call from dispatch.  Appellant confirmed that he had stopped in a rural yard to meet friends for a few drinks.  Bergeland looked at the back of the car and noted that there were no taillights.  When Bergeland asked appellant if he had been drinking, appellant responded that he “had a few.”  While speaking with appellant, Bergeland noted the smell of alcohol and that appellant’s speech was slow and slurred. 

            Concluding that appellant was intoxicated, Bergeland arrested appellant and transported him to the Chippewa County jail.  There he read appellant the implied consent advisory and appellant agreed to take an Intoxilyzer breath test.  Appellant showed an alcohol concentration level of .17.  Appellant was charged with driving while impaired in violation of Minn. Stat. § 169A.20, subd. 1 (5) (2000).

            At a 21 November 2001 pretrial hearing, appellant argued that Bergeland unlawfully stopped his car without having a reasonable and articulable suspicion that appellant was engaged in criminal activity.  The district court held that the stop was valid.  Appellant waived his right to a jury trial; following a bench trial on stipulated facts, the district court found appellant guilty as charged.  This appeal followed.

D E C I S I O N

 

            Appellant claims that his car was unlawfully stopped and that the district court erred in refusing to suppress evidence derived from the stop.[1]  When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts and determines, as a matter of law, whether the evidence should be suppressed.  State v. Harris, 590 N.W.2d 90, 98 (Minn.  1999). 

            The Fourth Amendment to the United States Constitution prohibits unreasonable searches or seizures by the government.  U.S. Const. amend IV.  Searches outside the “judicial process are per se unreasonable,” subject to a limited number of exceptions.  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (citation omitted).  Police officers may make limited investigative stops if they can

articulate objective and specific facts that led them, during the course of their investigation, to reasonably suspect the particular person stopped was engaging in criminal activity.

 

Schuster v. Comm’r of Pub. Safety, 622 N.W.2d 844, 846 (Minn. App. 2001) (citation omitted).  The police must show that the stop was not

the product of mere whim, caprice or idle curiosity, but was based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

 

Pike, 551 N.W.2d at 921-22 (quotation omitted).  Police may consider all the circumstances and may draw inferences that would elude persons untrained in law enforcement.  State v. Dalos, 635 N.W.2d 94, 96 (Minn. App. 2001). 

Bergeland stopped appellant’s car because he believed that its driver may have been involved in criminal activity.  Dispatch told Bergeland that a large, older car had pulled into a rural driveway, parked by the garage, and later drove away displaying no taillights.  Bergeland knew that there had recently been “a steady * * * flow” of theft and vandalism in rural Chippewa County.  Moreover, Bergeland testified that it was unusual for a car to be on a rural gravel road at that time of night.  In these circumstances, and based on Bergeland’s experience and training, the state argues that Bergeland had reasonable and articulable suspicion that the car that pulled into the Krueger residence may have been involved in criminal activity.  See id. (officer may consider personal observations, the nature of the offense,  the time, and the location).  We agree.

            Appellant argues that the description dispatch gave of the car that stopped at the Krueger residence was too vague to support the investigative stop.  In determining the validity of police stops near crime scenes, we consider several factors, specifically

(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

 

Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (citation omitted).

We have upheld the stop of a vehicle, even without a description, when

[i]t was early in the morning, the officer arrived on the scene promptly, there was no other traffic, and the truck pulled away from a location near the reported [criminal activity]. 

 

Purnell v. Comm’r of Pub. Safety, 410 N.W.2d 439, 441 (Minn. App. 1987); see also Appelgate, 402 N.W.2d at 109 (officer properly stopped, without a description, a pickup truck that was observed coming from the area of criminal activity within minutes after the report and there was little traffic in the area).  Here, Bergeland received the dispatch call at 1:58 a.m., a time when few vehicles were on the road.  Within five to seven minutes after receiving the call, Bergeland came upon appellant’s car on a road that usually has little traffic at that time of the night.  Appellant’s car was the only car Bergeland saw and it was on the same road and going north as reported by dispatch.[2]  We believe that Bergeland had a lawful duty to investigate appellant’s car under the circumstances.

Appellant claims that Bergeland should have let his car pass by to check its taillights.  But Bergeland stopped the car at the stop sign because he felt he had to control the encounter; he did not want to risk a nighttime car chase on rural roads.  And police are given specific authority to “freeze [a] scene” even without a description of a car if they reasonably assume the car was involved in a crime.  See State v. Bellikka, 490 N.W.2d 660, 662 (Minn. App. 1992), review denied (Minn. 25 Nov. 1992). 

Finally, appellant claims the stop was invalid because it was based on information from an anonymous tip.  Bergeland testified that dispatch gave him a specific address on 50th Avenue.  And, the police dispatch log identified Marge Krueger as the caller.  The tip was not anonymous.

Considering all the facts and circumstances presented, we agree with the district court that Bergeland’s stop of appellant’s vehicle was not based on a whim, caprice, or idle curiosity, but, rather, on specific and articulable facts that gave rise to a reasonable suspicion of criminal activity.  Accordingly, the district court properly denied suppression of evidence derived from the stop. 

Affirmed.

 

 

RANDALL, R. A., Judge (dissenting)

 

I respectfully dissent.  The record indicates that appellant's vehicle was a few miles away, possibly five to eight, from the Krueger residence when Deputy Sheriff Bergeland stopped it.  He did not do the simplest thing available to him, which would have been to check the back of the car to see if it had taillights, before stopping appellant.  Had he checked and seen no taillights, he would have had a reasonable articulable basis to stop appellant with or without Krueger's call.  It is against the law to drive at night with no taillights.  What Bergeland stopped appellant's car on based on his testimony, is that it was a "larger, older car."  The record indicates that is the only information Krueger gave dispatch, "larger and older."  There was no information as to make, model, number of doors, distinctive features, driver alone or with others, etc. (except for no taillights).  There was no backup information from Krueger as to why she thought it was "larger" and "older."  That generic description (coming from the occupant of a house looking out of a yard after midnight) might fit 25% to 50% of the vehicles in Chippewa County and/or the State of Minnesota.  It is only after the stop that Bergeland looked at the back of the car and noted the absence of taillights.  That after-the-fact observation is a nonissue.  The law is clear that the officer needs articulable suspicion when he makes a stop.  It is impermissible police conduct, and leads to the suppression of evidence, to make "hunch" stops or "fishing" stops and later try to find some illegal activity going on to bootstrap the initial stop.

The majority's decision accurately reflects Bergeland's testimony, which is the essence of the problem with the stop.  Bergeland testified that he wanted "to check out" appellant's car to see if it was the car reported by dispatch.  That is a stop based on a pure hunch, or, put another way, an inarticulable suspicion of criminal activity.

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."

 

State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (quoting Terry v. Ohio, 392 U.S. 1, 21, 99 S. Ct. 1868, 1880 (1968)).  An investigatory stop is not valid unless the police officer has a "particularized and objective basis for suspecting the particular person stopped of criminal activity."  United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981) (citations omitted) (emphasis added).  An investigatory stop must 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).

There is no other support in the record for the stop.  I conclude that the facts of record are well below the modest threshold needed for "a reasonable and articulable suspicion that appellant was engaged in criminal activity."  Rather, I am assuming that Deputy Sheriff Bergeland testified correctly and honestly.  Since he admits he had not checked the taillights to see if they were on or off, but merely saw a large, older car in a rural area, he stopped it to see if this car might be connected to the car described by dispatch.

I would have reversed the district court's findings of a valid stop, suppressed the evidence, and dismissed the case.

 



[1] The district court’s decision that the state was not bound by the implied consent hearing ruling was not before this court. 

[2] We note that Bergeland had more information than did the police in Purnell and Appelgate in that appellant’s car matched the car description given to him by dispatch.  Although Purnell and Appelgate involved police response to discrete crimes committed shortly before the police stops, and Krueger reported only suspicious activity, the Appelgate analysis applies in determining whether appellant could reasonably be suspected of that activity.