This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Jeffrey Stephen King,




Filed March 25, 2003


Halbrooks, Judge



Hennepin County District Court

File No. 02048709


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


Peter A. MacMillan, MacMillan & Wallace, PLLP, 9955 59th Avenue North, Suite 125, Minneapolis, MN 55442-1671 (for appellant)


Carolyn Agin Schmidt, 1025 The Colonnade, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for respondent)




            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            The state appeals the district court’s order suppressing the evidence and dismissing the charge of driving while impaired.  Because we conclude that the district court did not err, we affirm.


            The facts of this case are not in dispute.  Just as the sun was setting at approximately 9:25 p.m. on June 17, 2002, Officer Jason Nolan of the Crystal City Police Department observed a red Subaru parked in the center of an elementary school parking lot.  Although he could see that the front windows of the Subaru were rolled down, he was unable to discern whether or not the vehicle was occupied.  Officer Nolan decided to investigate because there had been some criminal activity at the school, including people on the roof the night before.  As Officer Nolan drove into the lot, the Subaru’s headlights went on, and the vehicle began to leave.  Officer Nolan responded by activating his squad car’s emergency lights and stopping the vehicle.

            After identifying the driver as respondent Jeffrey Stephen King, Officer Nolan asked King why he and his female passenger had been in the parking lot.  King told Officer Nolan that he and his girlfriend, the passenger, had been discussing their relationship.  The officer then asked King if he had been drinking.  After initially denying that he had been drinking, King said that he had had “a few.”  Officer Nolan detected the odor of alcohol and observed that King’s eyes were watery and bloodshot.  King was asked to perform field sobriety tests, most of which he failed.  Officer Nolan then administered a preliminary breath test (PBT) test.  When King registered a reading of .15, he was arrested and charged with driving while impaired, in violation of Minn. Stat. §§ 169A.20, .25 (2000).  King’s later breath test, taken at the police station, indicated the presence of alcohol in excess of the legal limit.

            Before trial, King moved on stipulated facts to suppress the evidence obtained pursuant to the stop and to dismiss the charge against him.  The district court granted King’s motions on the ground that the officer did not have reasonable, articulable suspicion to stop King’s car.  This appeal follows.


            The state may appeal, as of right, a pretrial order suppressing evidence in a criminal prosecution.  Minn. R. Crim. P. 28.04, subd. 1(1).  In order to prevail on an appeal from an order suppressing evidence, the state must demonstrate “clearly and unequivocally” that the order will critically affect the state’s ability to successfully prosecute the defendant and the order constitutes error by the court.  State v. Peralta, 598 N.W.2d 698, 701 (Minn. App. 1999) (quotation omitted), review denied (Minn. Oct. 21, 1999).  The critical impact prong must be analyzed before moving to the question of error.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998). 

1.         Critical Impact

Without the suppressed evidence in this matter, there is no basis to support a criminal charge.  Therefore, we conclude, and King concedes, that the suppression of the evidence will have a critical impact on the prosecution of the charge.

2.         Error

            When the facts are not in dispute, this court reviews a pretrial order to suppress evidence to determine, as a matter of law, whether the district court erred in its decision.  State v. Goebel, 654 N.W.2d 700, 703 (Minn. App. 2002).  To justify a warrantless investigative seizure, a police officer must be able to articulate some objective basis that the individual seized has been, is presently, or is about to be, engaged in criminal activity.  State v. Britton, 604 N.W.2d 84, 87 (2000).  “Such limited stops to investigate suspected criminal activity are commonly known as Terry stops.”  Id. (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)).  Under the Minnesota and United States Constitutions, Terry stops are valid only when the officer can articulate an objective basis to support a reasonable suspicion that criminal activity is afoot.  Id.; United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989).  Reasonable suspicion cannot be based on curiosity or a mere hunch.  State v. Martinson, 581 N.W.2d 846, 850 (Minn. 1998). 

            The propriety of a Terry stop must be determined by viewing the totality of the circumstances surrounding the stop.  Britton, 604 N.W.2d at 87.  The subjective good faith of the officer effecting the stop is irrelevant.  Id. at 88.  For if that were the test, the constitutional protections against unreasonable searches and seizures would “evaporate” and persons would be secure in their privacy only at the whim of the police.  Id. (quoting Terry, 392 U.S. at 22, 88 S. Ct. at 1880). 

Here, Officer Nolan observed a car, legally parked, in a school parking lot where criminal activity had been recently reported.  But there had been no reports of illegal or suspicious activity that evening or any reports of a vehicle resembling King’s involved in any such activity.  Initially, Officer Nolan did not know if the vehicle was occupied or not.  Officer Nolan observed nothing that would have indicated that King or any passenger in his vehicle had been, was about to be, or was then engaged in criminal activity.  See Britton, 604 N.W.2d at 87. 

The fact that there had been reports of criminal activity at the school does not amount to an objective, specific reason to suspect that someone who parked in the middle of the school’s parking lot and then began to leave was engaged in criminal activity.  We, therefore, agree with the district court that Officer Nolan’s response in stopping the Subaru was based only on a hunch.

On this record, we conclude that the district court properly suppressed the evidence because it was obtained following a stop that was not based on an objective, articulable basis.  Without the suppressed evidence, there is nothing to support a criminal charge against appellant.  Therefore, the district court properly dismissed the DWI charge.