This opinion will be unpublished and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
State of Minnesota,
Michael T. Bill,
Hennepin County District Court
File No. 02047479
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Craig M. Mertz, Mound City Attorney, 600 West 79th Street, Suite 210, P.O. Box 623, Chanhassen, MN 55317 (for respondent)
Faison T. Sessoms, 840 TriTech Office Center, 331 Second Avenue South, Minneapolis, MN 55401 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Michael T. Bill contends that because he did not violate the City of Mound noise ordinance, the officer’s mistaken belief that the ordinance was violated did not constitute a sufficient objective basis to justify the stop of appellant’s vehicle. We affirm.
When, as here, the facts are undisputed, this court reviews the legality of a limited investigatory stop de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). To be lawful, a stop “must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” State v. Victorsen, 627 N.W.2d 655, 664 (Minn. App. 2001). Officers may conduct limited investigative stops when the officers can “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Britton, 604 N.W.2d at 87 (quotation omitted). Although the factual basis required to justify an investigatory stop is “minimal,” a stop cannot be based on “mere whim, caprice, or idle curiosity.” Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (quotation omitted). An officer’s mere “hunch” or subjective opinion is not an adequate basis for a stop. Britton, 604 N.W.2d at 87.
Here, appellant was pulled over at three o’clock in the morning because a police officer two blocks away heard loud music coming from appellant’s vehicle. Mound City Ordinance § 920.15, subd. 2 (2002), states that
No person shall, between the hours of 10:00 p.m. or 7:00 a.m., create, cause, generate or reproduce a noise or sound of a sufficient volume so as to disturb the peace, quiet or repose of a person or persons residing in any residential area.
Believing that the noise was disturbing the peace for area residents, the officer stopped appellant’s vehicle. The officer then noticed the smell of alcohol coming from appellant. Appellant submitted to field sobriety tests and based on the results of those tests, appellant was arrested for DWI.
Appellant argues that he was not in violation of the city noise ordinance because the parties stipulated that no resident complained about the noise and because appellant’s vehicle was located in a “commercially zoned” area instead of a “residential area.” Thus, appellant contends that the officer’s mistaken belief that the noise ordinance was violated did not constitute a sufficient objective basis to justify the stop.
To support his argument, appellant cites State v. George, 557 N.W.2d 575 (Minn. 1997). In George, a state trooper observed a motorcycle traveling with three headlights. George, 557 N.W.2d at 576. The trooper erroneously believed that this headlight configuration violated Minnesota law and thus initiated a traffic stop. Id. The stop resulted in a seizure of a weapon and drugs. Id. at 577. The Minnesota Supreme Court found that the stop was invalid, stating that
State law clearly permits a motorcycle to have two standard high/low beam headlamps and two of the auxiliary passing lamps. There was no objective basis in the law for the trooper to reasonably suspect that George was operating his motorcycle in violation of this law.
Id. at 579 (emphasis in original). Appellant argues that here, as in George, the officer mistakenly and subjectively believed that appellant’s conduct violated the law. Appellant contends that since his conduct did not violate the law, the officer’s stop failed to meet the objective test required for a valid stop. We disagree.
First, we reject appellant’s characterization of the holding in George. George does not hold that no stop is permissible unless the individual stopped is violating the law. See, e.g., Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 923 (Minn. App. 2000) (stop justified where driver was swerving within his lane, even though this was not a traffic violation). Such a holding would overrule long-standing United States Supreme Court and Minnesota Supreme Court decisions. See, e.g., United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989); United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981); State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989); Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985); State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983); State v. Barber, 308 Minn. 204, 241 N.W.2d 476 (1976). All are cited in George to support the general principle that an officer may make a stop if there is an objective basis for that stop. George, 557 N.W.2d at 578. Moreover, the George holding is specifically restricted to the facts of that case. Id.
Second, George is distinguishable from the facts here. Here, at the time of the stop, there were specific and articulable facts that made it reasonable for the officer to believe that appellant violated the city noise ordinance. At three o’clock in the morning, the officer heard loud music coming from appellant’s vehicle from two blocks away. And the parties stipulated that residences and apartment buildings were located one block from where appellant was driving. To determine the propriety of investigative stops, we review the “totality of the circumstances” surrounding the stop. State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983). Based on the totality of the circumstances, and viewing the facts from the vantage point of the officer on the scene, we conclude that the officer’s observations sufficiently demonstrate that the officer had reasonable, articulable suspicion to justify an investigatory stop of appellant’s vehicle.