This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-811

 

State of Minnesota,

Appellant,

 

vs.

 

Chad Robert John Wilton,

Respondent.

 

Filed December 10, 2002

Reversed and remanded

Robert H. Schumacher, Judge

 

St. Louis County District Court

File No. K202600083

 

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

 

Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-1298 (for appellant)

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondent)

 

Considered and decided by Schumacher, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

The state appeals the district court's pretrial suppression order. The state claims the district court erred in failing to recognize the police officer's articulable suspicion related to the evasive driving conduct of respondent Chad Robert John Wilton after the officer began following his car. We reverse and remand.

FACTS

On January 19, 2002, at 9 p.m., Duluth Police Officer Robin Roeser was on duty in a marked squad car when he observed a car that "blasted right through the stop sign in front of me." Roeser was not able to note the make, model, or color of the vehicle. He attempted to locate the vehicle, which involved circumventing the one-way streets and catching up to what he assumed to be the path of the vehicle in question. Eventually Roeser saw a vehicle that he later determined was driven by Wilton. He was not sure whether Wilton's vehicle was the one that he had observed.

After making "eye contact" with the vehicle, Roeser noticed that Wilton made "a very abrupt left turn down Fourth Avenue East and then a quick abrupt right turn westbound in that first alley." This conduct Roeser interpreted as evasive, and he became suspicious. Roeser decided to follow Wilton's car into an alley.

As Roeser entered the alley, he saw Wilton's vehicle "just about at the end of the alley and I can see kind of rocks and some dust." Roeser testified further that "it's just about to the end of the alley, and it would have had to have gone at a fairly good clip to make it through the alley that fast." Roeser took this conduct to indicate that Wilton was attempting to evade him.

Wilton then turned right on Third Avenue East and traveled northbound. After both vehicles stopped at a red light, Wilton continued north on Third Avenue with Roeser following. Wilton turned east on Second Street, and as Roeser made that turn, he noticed Wilton's

vehicle is a good distance down Second Street already. Almost all the way back to Fourth Avenue East, which it seems to me that the vehicle is trying to evade me again.

 

Wilton then turned onto Fourth Avenue East, and Roeser turned on his lights and siren. Wilton immediately turned into an alley and pulled over into a parking space.

After the stop, Roeser wiped the dirt from Wilton's license plates and ran a check on the plates. He determined that the plates were flagged as impounded for alcohol-related driving violations, that Wilton did not have a valid driver's license, and that there was a warrant out for his arrest. Roeser placed Wilton under arrest. When the car was searched subject to impound, methamphetamine residue was found in drug paraphernalia.

Wilton moved for an order suppressing the evidence, arguing that officer Roeser did not have justification for stopping him. The district court granted Wilton's motion, concluding that Roeser "did not have reasonable, articulable, suspicion that the vehicle he was following was the same vehicle which he observed violate the stop sign," nor did Roeser "specify any other articulable suspicion of criminal conduct on the part of the vehicle he was following as a basis for the traffic stop." All charges were dismissed.

D E C I S I O N

Upon review of a pretrial suppression order based on undisputed facts, this court "may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1992) (citation omitted). To successfully appeal a pretrial suppression order, the state must clearly demonstrate that the court's order was in error and that the "order will have a 'critical impact' on the state's ability to prosecute the defendant." State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998). In this case, the suppression order resulted in a dismissal of the charges against Wilton. Therefore, the "critical impact" requirement is not at issue.

The order and memorandum indicate that the district court did not believe that the officer had a reasonable basis for concluding that Wilton's vehicle was the one observed running the stop sign. This conclusion is supported by the officer's own testimony.

The district court also determined that Roeser did not "specify any other articulable suspicion of criminal conduct on the part of the vehicle he was following as a basis for the stop." The record does not support this conclusion, however. A review of the district court's order and memorandum indicates that the court was under the impression that the officer must articulate a suspicion of a specific crime as opposed to articulating specific conduct that supports a reasonable inference of some criminal activity.

The case law indicates otherwise. In State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989), the supreme court reasoned that evasive driving conduct can legitimately support an officer's reasonable suspicion of "wrongdoing." The supreme court

reaffirm[ed] the standard [that] we have followed in numerous cases: that a police officer may make a brief limited investigative stop if the officer has a particular and objective basis for suspecting the person stopped of criminal activity.

 

Id. (emphasis added). Moreover, in Johnson, the supreme court explicitly stated that an officer's reasonable belief that an individual is trying to evade him by way of certain driving maneuvers can be, by itself, the basis for an investigatory stop. Id.

Likewise, in State v. Petrick, 527 N.W.2d 87, 89 (Minn. 1995), the supreme court ruled that when an officer articulates specific driving behavior reasonably described as evasive, such observations allow for the reasonable inference of "wrongdoing." Thus, such observations supply the justification for an investigatory stop. Id.

Additionally, in State v. Schrupp, 625 N.W.2d 844, 848 (Minn. App. 2001), review denied (Minn. July 24, 2001), this court noted that the supreme court has definitively ruled evasive driving conduct can be the basis for a legal investigative stop. In Schrupp, the court stated that the issue is whether the officer, when deciding to make the stop, has

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.

 

Id. at 847-48 (emphasis added). This court acknowledged that such conduct existed in Petrick and Johnson, and constituted indicia of mens rea supporting an inference of criminal conduct, "most likely driving without a license or driving while impaired." Id. at 848. In Schrupp, this court ruled that the driver's conduct, although perhaps somewhat evasive, was not sufficiently suspicious to warrant a reasonable inference of criminal activity as opposed to a mere nervous, yet innocuous, reaction to observing a police officer. Id. The Schrupp court offered a distinction:

Merely watching the police "to avoid some minor misstep, such as a minor traffic violation," hesitating to pass a police car, appearing nervous or looking away from a police car, or quickening one's pace on seeing a police car are not unusual behaviors. The unusual behaviors that will justify a stop are like the conduct of the men in Terry: [b]y contrast, such stops have been upheld when the individual made repeated efforts to avoid police contact, when he engaged in a combination of several different possibly furtive actions * * * .

 

625 N.W.2d at 848 (emphasis added) (citations omitted).

Here, Wilton engaged in a combination of evasive driving conduct, including making several unexplained turns and accelerating unnecessarily on several occasions in what appeared to Roeser to be an attempt by Wilton to evade him. Wilton's conduct more closely approximates that of the drivers in Petrick and Johnson than that of the driver in Schrupp. Roeser articulated the basis upon which he determined that Wilton might have been engaged in some criminal conduct, and that basis was reasonable under the circumstances.

Wilton argues that Roeser was not certain that Wilton had observed him, and thus Roeser could not be certain that Wilton's driving maneuvers were designed to be evasive. But the standard is one of reasonableness, not certainty. Based upon his observations, and interpretation of those observations based upon his five-plus years of experience as a police officer, Roeser reasonably concluded that Wilton was engaging in sustained, evasive driving conduct. Accordingly, we conclude the district court erred in suppressing the evidence and dismissing the charges. We therefore reverse and remand.

Reversed and remanded.