This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Brett Alan Nevitt,



Filed July 29, 2003


Gordon W. Shumaker, Judge


Beltrami County District Court

File No. KX02416




Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN 55101; and


Timothy R. Faver, Beltrami County Attorney, Judicial Center Annex, 619 Beltrami Avenue N.W., Bemidji, MN 56601-3066 (for respondent)


John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Shumaker, Presiding Judge, Wright, Judge, and Forsberg, Judge.*                       



U N P U B L I S H E D   O P I N I O N




Appellant contends that the district court erred when it found that a state trooper had reasonable, articulable suspicion to support a lawful investigatory stop and admitted evidence from that stop.  Appellant also argues that the district court relied on facts not in the record when denying his motion to suppress.  Because the trooper’s actions were supported by a reasonable, articulable suspicion and because the court relied on facts in the record, we affirm.



            At 1:30 a.m. on March 16, 2002, state trooper Jeremy Goudge was on routine patrol when he saw a pickup truck with its headlights and taillights on, parked on the shoulder of rural Highway 2.  The area is mostly wooded and has few houses.

As Goudge drove toward the truck, he saw two people standing 10 to 30 feet behind it.  One person was standing on the shoulder and the other on the fog line.  Goudge also noticed a person in the driver’s seat of the truck.  Intending to see if the truck had broken down or if the people otherwise needed assistance, Goudge activated his emergency lights for safety and stopped behind the truck.

As Goudge got out of his squad, the two people outside the truck moved into the ditch and into the adjacent woods.  At the same time, the truck drove away.

Goudge returned to his squad and, with his emergency lights on, followed the truck.  He called for backup assistance to find the men who entered the woods because he  “felt that everybody was leaving the scene because of some sort of criminal activity.”  Approximately three-quarters of a mile down the road, the truck stopped.  Goudge then administered field sobriety tests to the driver, Brett Alan Nevitt.  When Nevitt failed the tests, Goudge arrested him.  Nevitt refused testing for alcohol concentration.

After the state charged Nevitt with driving while impaired and test refusal, he moved to suppress all evidence and to dismiss the charges on the ground that Goudge lacked a reasonable, articulable suspicion to justify the stop.  Concluding that Goudge made a lawful investigatory stop based on reasonable, articulable suspicion of criminal activity, the district court denied Nevitt’s motions.  After a trial on stipulated facts, the court found Nevitt guilty, and this appeal followed.


1.         Suppression order

            When reviewing pretrial suppression orders, this court conducts an independent review of the facts and determines as a matter of law whether the trial court erred in its decision.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

            To conduct a lawful stop for limited investigatory purposes, an officer “must have reasonable articulable suspicion of a criminal activity.”  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968)).  “All that is required is that the stop be not 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) (quotations omitted).  Evidence in the record of the officer’s assessment of the situation, based on the officer’s training or experience, may provide the foundation for a reasonable belief that a violation of the law was occurring and may support an investigatory stop.  See State v. Anderson, 620 N.W.2d 56, 58 (Minn. App. 2000) (stating that evidence obtained based either on training or experience may be admissible). 

            There is no dispute that Nevitt’s truck was already stopped and parked when Goudge initially approached the scene.  Goudge’s approach of Nevitt’s truck was lawful at this point because it is settled law in Minnesota that a peace officer does not need the limited threshold of articulable suspicion of criminal activity to approach a parked car.  State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); see also Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 245-46 (Minn. App. 1986) (holding that an officer may approach a vehicle when there is no indication that the occupants of the vehicle are engaged in criminal activity to determine whether assistance is needed).  In addition, it is uncontested that the use of the officer’s lights when Goudge pulled up behind Nevitt’s truck was for assistance and safety purposes.

            Nevitt argues that, because it was not illegal to be parked along the road, he was free to leave and that the pedestrians’ actions cannot provide a reasonable, articulable suspicion of criminal activity.  Thus, he contends, Goudge’s pursuit of him with the squad’s emergency lights on constituted an unlawful stop.

Nevitt relies on Marben and argues that Goudge’s testimony stating he “guessed” there was criminal activity afoot is a prohibited reason for an investigatory stop, because Marben holds that a traffic stop cannot be based on whim or curiosity alone and a guess is a whim.  Marben, 294 N.W.2d at 699.  “A hunch, without additional objectively articulable facts, cannot provide the basis for an investigatory stop.”  Harris, 590 N.W.2d at 101 (emphasis added).

Late at night on a rural highway in the winter, a state trooper saw a truck parked on the shoulder of the road with its headlights and taillights on.  Someone was sitting in the driver’s seat, and two others were standing outside near the truck.  All this was innocent activity.  But when the trooper stopped his squad and everyone left the scene, the two pedestrians entered a wooded area and the driver moved the truck down the road, the innocent activity was converted into objectively suspicious activity.  And this trooper, who stopped his squad behind vehicles several times a day and had learned that when people leave the scene “criminal activity [is] afoot,” had, from experience and current observation, the requisite basis for a lawful investigatory stop.

An officer may lawfully make an investigative stop based upon “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, 392 U.S. at 21, 88 S. Ct. at 1880).  Evasive conduct can be sufficient to warrant a lawful stop.  State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989).

2.         Facts relied upon on in the record

            Nevitt also argues that the district court relied on facts not in the record.  Here, the record shows that the pedestrians “started to exit towards the ditch” and that as the officer approached on foot, the pedestrians “continued down through the ditch and into the woods, and the Ford pickup pulled away from the scene.”  (Emphasis added.)

            The district court’s findings from the omnibus hearing on the motion to dismiss state that “the persons standing behind the pickup began to move toward the ditch” and then “began running into the ditch and the adjacent woods.”  (Emphasis added.)

            The facts the court relied on to support its finding of reasonable, articulable suspicion do not turn on whether the pedestrians “continued” or “ran,” but rather on the fact that when the trooper stopped his squad, the pedestrians left the scene.  The fact that Nevitt drove away after Goudge stopped behind him, at that time of day and in that location, is sufficient to support a lawful stop regardless of pedestrian activity.  Even though the driver was free to leave, his doing so under these circumstances supports the finding of a lawful investigatory stop.

Nevitt also argues that the district court erred when it mentioned that there are bars just west of the scene and the highway was busy with truck traffic because this information was not part of the stipulated facts.  The district court made these references in the memorandum attached to its findings.  Even without these references, the district court’s findings are sufficient to support its conclusions, and thus the references are irrelevant and merely incidental to the district court’s ruling.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.