This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Peter Fletcher, petitioner,
Commissioner of Public Safety,
Carver County District Court
File No. C6021849
Eric J. Nelson, Allan H. Caplan & Associates, 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, Melissa J. Eberhart, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Parker, Judge.*
Appellant challenges the district court’s order sustaining the revocation of his driver’s license under the implied-consent law. He contends that the initial investigatory stop of his vehicle was not based on reasonable, articulable suspicion because the officer failed to observe driving conduct that corroborated an anonymous caller’s tip. The record supports the district court’s finding that the officer initiated the traffic stop after observing appellant swerve into the right lane, and we conclude that the anonymous tip was sufficiently reliable. We affirm.
On September 5, 2002, at 6:20 p.m., Chaska Police Sergeant Joseph Carlson received a 911 dispatch, indicating that a suspected impaired driver was traveling eastbound on Highway 212 away from County Road 40 in a tan Ford Explorer. An anonymous caller had reported this information to the police and described the erratic driving conduct that he observed. Carlson parked on Hickory Street, facing north toward Highway 212 to watch for the vehicle.
Carlson observed a tan Ford Explorer traveling eastbound on Highway 212, noted the license-plate number of the suspect vehicle, and pulled into traffic a few cars behind it. After a short distance, all eastbound traffic stopped for a red light at the intersection of Highways 212 and 41. When the light turned green and eastbound traffic began to proceed, Carlson observed the suspect vehicle swerve from the left lane into the left-turn lane and then return to its original lane. A short distance further, the suspect vehicle swerved into another left-turn lane, overcorrected by swerving into the right lane, and nearly hit a vehicle.
Carlson activated the squad car’s red emergency lights. In response, the suspect vehicle pulled over to the side of the road. The reporting party pulled over a short time later and identified himself as the caller. Carlson learned that appellant Kevin Fletcher was the driver of the suspect vehicle. Fletcher admitted drinking six beers that day but refused to take an alcohol-concentration test. Carlson arrested Fletcher.
The Commissioner of Public Safety issued an order revoking Fletcher’s driver’s license, pursuant to Minn. Stat. § 169A.52, subd. 3(a) (2002). Fletcher petitioned for judicial review of the commissioner’s orders. At the implied-consent hearing, Fletcher introduced into evidence a tape of the 911 call, which was received without objection. Fletcher, however, did not play the tape or otherwise ask Carlson or anyone else to identify the voices on the tape. When questioned about the difference between the location from which he testified he responded to the call and that of the officer on the tape, Carlson testified that, if he told the dispatcher he was on Highway 41, he nevertheless could have easily arrived at the arrest location within minutes.
Fletcher testified that he did not observe a police squad car while he was waiting at the stoplight. He explained that, as he was proceeding through the intersection, he saw the squad car traveling across westbound traffic perpendicular to his vehicle. The squad car entered onto Highway 212 from the north and caused traffic traveling in both directions to swerve out of the way. Fletcher, who could not recall with certainty where this occurred, admitted that his memory and perception of the events could have been affected by the six beers he had consumed prior to the police encounter. Although he did not remember the driving conduct that Carlson attributed to him, Fletcher testified that any swerving that occurred was necessary to make way for the squad car.
Fletcher challenges the constitutionality of the investigative stop conducted by Carlson. Fletcher argues that Carlson did not have reasonable, articulable suspicion to conduct the traffic stop because Carlson did not observe Fletcher swerve into the right lane prior to activating the squad car’s emergency lights. The constitutionality of an investigative stop is a mixed question of law and fact. Berge v. Comm’r of Pub. Safety,374 N.W.2d 730, 732 (Minn. 1985). Under Minnesota Rule of Civil Procedure 52.01, the district court’s findings of fact shall not be set aside unless they are clearly erroneous. Northern States Power Co. v. Lyon Food Prod., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Id. Conclusions of law will be overturned only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case. Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986) (citation omitted). In addition, the propriety of an investigatory stop affects constitutional rights, which we review de novo. State v. Moorman, 505 N.W.2d 593, 599 (Minn. 1993).
Under the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution, a police officer may not stop a motor vehicle without reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). Even a minor traffic violation can support an investigatory stop. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). The factual basis necessary for a lawful traffic stop need not arise from the officer’s personal observations. Marben, 294 N.W.2d at 699. The requisite factual basis may be supplied by information acquired from another person, including an informant. Id.
Minnesota case law involving traffic stops based on informant tips has focused on two factors: (1) provision of sufficient identification of the informant, Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326, 328 (Minn. App. 2001), review denied (Minn. Mar. 19, 2002); and (2) at least a modicum of specificity as to why the citizen believes the suspect driver might be engaging in illegal behavior. Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985). Neither factor is independently dispositive, and the determination of whether the officer had a reasonable suspicion of criminal activity at the time of the stop is based on the totality of the circumstances. Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000). If an anonymous tip alone does not provide the factual basis, it may be combined with corroborating evidence under a totality-of-the-circumstances analysis to establish the factual basis for reasonable, articulable suspicion. Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329 (1983).
Citing Olson, Fletcher contends that, because Carlson did not observe any erratic driving behavior, the traffic stop was based solely on an unreliable anonymous tip, which cannot form the basis for reasonable, articulable suspicion. In Olson, two Hennepin County sheriff’s deputies received a radio dispatch stating that a citizen reported a suspected drunken driver. 371 N.W.2d at 553. The caller described the vehicle, indicated its location, and gave the license number. Id. But the caller did not give a description of the driving conduct giving rise to the suspicion. Id. at 556. Having followed the car for about a half mile, during which the deputies observed no erratic driving, they stopped the suspect vehicle. Id. at 553. Asone of the deputies asked the driver, Olson, for his license, the deputy smelled an odor of alcohol in the car and on Olson’s breath. Id. The deputy also observed that Olson’s eyes were bloodshot, his speech was slurred, and his gait was unsteady. Id. The deputy arrested Olson for driving while under the influence of alcohol. Id.
The Olson court concluded that where the stop is based solely on an anonymous caller’s tip, the “caller must provide at least some specific and articulable facts to support the bare allegation of criminal activity.” Id. at 556. Because the deputies had not observed any erratic driving and the anonymous caller had not given even “minimal specific and articulable facts * * * to support the caller’s bare assertion of a possibly drunk driver on the road,” the Minnesota Supreme Court concluded that the traffic stop was unconstitutional. Id. at 553-56. (stating that “[i]f police cannot stop a car on the highway on the basis of mere whim, neither can they stop on the basis, for all they know, of the mere whim of an anonymous caller”).
Here, the record establishes that, unlike the deputies in Olson, Carlson observed Fletcher erratically move into the right lane after swerving into the left turn lane. This observation corroborated the information from the anonymous report that there was a tan Ford Explorer swerving on Highway 212. Fletcher’s testimony about Carlson’s location, Carlson’s ability to observe Fletcher’s driving conduct, and traffic swerving to avoid the oncoming squad car is contradicted by Carlson’s testimony and the tape of the 911 call. The district court found, and the record supports, that Carlson observed Fletcher’s erratic driving before initiating the traffic stop. Weighing the credibility of witnesses is the function of the fact-finder. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). This is particularly true when the case requires the fact-finder to resolve conflicting evidence. Id. Accordingly, we conclude thatCarlson had reasonable, articulable suspicion to stop Fletcher based on the information received from the 911 call and Carlson’s observation of Fletcher’s erratic driving conduct.
We note further that, even if Carlson based the stop solely on the anonymous tip, it was sufficiently reliable to establish reasonable, articulable suspicion. Olson requires the anonymous caller to provide specific and articulable facts regarding the alleged drunk driver. 371 N.W.2dat 556. Here, the caller described the suspect vehicle and its location, stated that the driver was “loaded,” and exclaimed that the driver was swerving all over the road and almost hit him. During the conversation with the 911 dispatcher, the anonymous caller described his own vehicle and later stopped and identified himself as the caller. Thus, on this record, we also conclude that the tip alone was sufficiently reliable to form a constitutional basis for the stop.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.