This opinion will be unpublished and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

A03-51

 

State of Minnesota,

Respondent,

 

vs.

 

Dustin James Barton,

Appellant.

 

Filed November 4, 2003

Affirmed

Randall, Judge

 

Polk County District Court

File No. T9-02-4518

 

Steven M. Light, Lindsey D. Haugen, US Bank Building, 600 Demers Avenue Grand Forks, ND  58201 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Chuck Fitzgerald, Crookston City Attorney, Stephanie J.S. Harbott, Assistant City Attorney, 201 ˝ North Broadway, PO Box 457, Crookston, MN  56716 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

On appeal from a conviction of fourth-degree DWI, appellant challenges the legality of the initial stop of his vehicle.  Because the information reported to police dispatch by an identified citizen tipster contained sufficient indicia of reliability to justify an investigatory stop, we affirm. 

FACTS

 

            On September 20, 2002, at approximately 11:44 p.m., Officer Dacian Bienek of the Crookston Police Department received a report from dispatch that a vehicle was “driving all over the road” and “coming into Crookston on Hwy 2 from East Grand Forks.”  The vehicle was described as a “white over gray colored car” reportedly moving at a “high rate of speed.”  The citizen informant also stated that the vehicle had North Dakota license plates.  The informant followed the vehicle in question and continued to talk to dispatch by cellular phone.  The informant identified herself as a driver observing the conduct described.

            A few minutes after receiving the call from dispatch, Officer Bienek was traveling on Highway 2 when he observed a white and gray vehicle that appeared to be traveling at a “high rate of speed” in a 55 mph zone.  While driving by, he shined his spotlight on the car from across the highway in an effort to get the driver to slow down.  Officer Bienek then turned around, and activated his emergency lights to get the vehicle to stop.  He reported that the driver was traveling at such a high rate of speed that the vehicle “began to pull away from [his] squad car.”  Subsequently, Officer Bienek advised all responding units that the vehicle was not stopping.  He then observed the vehicle turn right onto County Road 61, and Deputy Hanson follow right behind it.  Deputy Hanson advised Officer Bienek that he stopped the vehicle in the AmericInn parking lot in Crookston.  

            When Officer Bienek approached the vehicle, he observed appellant standing in front of the vehicle.  He also observed that all seats were occupied except the driver’s seat.  While speaking with appellant, Officer Bienek smelled a strong odor of alcohol emanating from appellant.  Appellant stated that he was the owner of the vehicle, that he had had only one drink, and that he was coming from downtown Grand Forks.  Officer Bienek observed that appellant’s eyes were red and watery.  Officer Bienek reported that he administered three field sobriety tests, which appellant either failed or refused to take.[1]

            Based on this information, Officer Bienek arrested appellant for Driving While Impaired (DWI).  Appellant moved to suppress the evidence obtained as a result of his DWI arrest, asserting that Officer Bienek stopped his vehicle without a reasonable articulable suspicion of criminal activity.  The district court denied appellant’s motion to suppress.  On February 13, 2002, the district court found appellant guilty of fourth-degree DWI in violation of Minn. Stat. § 169A.27, subd. 1(1) (2002).  This appeal followed. 

D E C I S I O N

            When appellate courts review district court determinations of the legality of limited investigatory stops, questions of reasonable articulable suspicion are reviewed de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (citation omitted).

            In accordance with the Fourth Amendment, a police officer may not stop a vehicle without a specific and articulable suspicion of a violation.  Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980); Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).  An officer may rely on the observations of another person when forming specific and articulable suspicion.  Marben, 294 N.W.2d at 699.  A private citizen who provides information relevant to a stop is presumed reliable.  Id.   But the informant’s tip must contain sufficient “indicia of reliability” to justify a traffic stop.  Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985).

            The reliability of the informant’s information is judged on “identifying information given by the informant” and “the facts that support the informant’s assertion” that a traffic stop is warranted.  Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000).  Neither factor is separately dispositive, and the determination of whether the officer had a reasonable suspicion of a criminal activity at the time of the stop is based on the totality of the circumstances.  Id.  The informant’s personal observation of the suspected conduct is also deemed relevant to the reliability of a tip.  See Payle v. Comm’r of Pub. Safety, 439 N.W.2d 747, 749 (Minn. App. 1989) (upholding stop where circumstances indicated that caller, who identified himself as a Burger King employee, personally made reported observations). 

Identifying Information

Appellant argues that the citizen informant is unreliable because the informant was anonymous, and the informant’s information was not corroborated.  We disagree.  This court has distinguished between anonymous and identifiable informants.  Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326, 329-30 (Minn. App. 2001).  An informant who provides sufficient identifying information is not “anonymous,” even if the informant does not provide a name.  Sheperd, 420 N.W.2d at 890-91 (holding that caller who identified himself as an attendant at particular gas station and reported a drunk driver was sufficient identifying information to find the tip reliable); Playle, 439 N.W.2d at 748 (holding that caller who identified himself as a Burger King employee was enough information to make his tip about a drunk driver reliable).  Even if the informant is unnamed, an officer is justified in presuming the informant is truthful in identifying himself if the informant provides sufficient information to locate him and hold him accountable for providing false information.  Sheperd, 420 N.W.2d at 890-91; Playle, 439 N.W.2d at 748. 

In Marben, a truck driver radioed a state trooper while driving on the freeway.  Marben, 294 N.W.2d at 698.  The truck driver told the trooper that he could see the trooper’s squad car parked alongside the freeway and asked the trooper to check out a vehicle that was tailgating him.  Id.  He also told the trooper that the vehicle in question was exiting from the freeway onto a nearby highway.  Id.  Subsequently, the trooper followed the vehicle, noticed no improper driving violations, and pulled over the suspect.  Id.  The court found that the truck driver was reliable and the stop was valid.  Id.  The court reasoned that, although he did not state his name, the truck driver was reliable because the truck driver was able to describe his location in relation to the trooper’s car and the suspect’s vehicle.  Id. at 699.  The court also found the truck driver reliable because the trooper was able to verify that the trucker driver was in the area and in close proximity to the suspect’s car.  Id. 

Here, like the truck driver in Marben, the informant followed the suspect while talking to dispatch by cellular phone.  Also, like the truck driver in Marben, the informant was able to describe her location and the location of the vehicle in question.  The informant stated that she was following a vehicle heading into Crookston on Highway 2.  A few minutes later, Officer Bienek drove onto Highway 2 and located the suspect.  Therefore, like the truck driver in Marben, the informant adequately described her location and proximity so that Officer Bienek could verify her location and information.   The standard requires a presumption of citizen-informant reliability based on the totality of the circumstances.  Thus, like the truck driver in Marben, the informant here can be deemed reliable.

            Facts Offered to Support Informant’s Assertion

            The facts offered by the informant were sufficient to support informant’s conclusion that appellant was “driving all over the road” and at a “high rate of speed.”  The factual basis required to support a stop for a routine traffic check is minimal.  State v. McKinley, 305 Minn. 297, 300, 232 N.W.2d 906, 909 (1975).  Simply put, the stop must not be “the product of mere whim, caprice, or idle curiosity.”  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (quotation omitted.).  Further, a court may conclude that any information given by an informant to a dispatcher is imputed to the officer effecting the stop under the collective-knowledge doctrine.  See State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997); Olson, 371 N.W.2d at 555 (applying collective-knowledge doctrine to information relayed through dispatcher). 

Here, the informant followed behind appellant’s vehicle and personally observed the vehicle “driving all over the road” and traveling at a “high rate of speed” into the city of Crookston on Highway 2.  The informant gave this information to the dispatcher along with a description of the car.  She stated that the vehicle was a “white over gray colored car” with North Dakota license plates.    After receiving this information, Officer Bienek, confirmed the informant’s observations when he personally observed the white and gray vehicle driving by him on Highway 2 “at a high rate of speed” in a 55 mph zone.  Officer Bienek had additional suspicion when appellant’s car did not stop after he activated his spotlight and emergency lights.  The facts relayed by the informant, including the description of the vehicle, its location and conduct, along with Officer Bienek’s confirmation that the vehicle was traveling at a high rate of speed was sufficient to support an investigatory stop.

Officer’s Reasonable Articulable Suspicion

Appellant contends that the officer was too vague about the speed of appellant’s car and that the evidence was insufficient to find that appellant was attempting to evade the law.  We disagree. 

A police officer’s assessment of the need for a traffic stop is based on all the circumstances, including the officer’s general knowledge and experience, the officer’s personal observations, the nature of the offense suspected, the time, the location, and anything else that is relevant, and the officer draws inferences and makes deductions that might well elude an untrained person.  State v. Dalos, 635 N.W.2d 94, 95-96 (Minn. App. 2001).  An officer’s observation of a traffic violation presents an objective basis to support a traffic stop.  State v. Shellito, 594 N.W.2d 182, 185 (Minn. App. 1999) (stop justified where it was based on defendants’ driving at an excessive speed); State v. Richardson, 622 N.W.2d 823, 825-26 (Minn. 2001) (officer’s independent observation of erratic driving, which included crossing of fog and center lines, after receiving report from another driver that vehicle was “all over the road” was sufficient to support stop).  Furthermore, an officer’s credibility as a witness is a matter for the fact finder.  State v. Pieschke, 295 N.W.2d 580 (Minn. 1980). 

 Here, Officer Bienek observed appellant’s driving at a “high rate of speed” in a 55 mph zone and attempted to get him to stop.  These facts alone, justify the stop.   Even though Officer Bienek did not specify the exact rate of speed at which appellant was driving, the speed was excessive enough that he made several attempts to slow appellant’s vehicle down.  First, Officer Bienek shined his spotlight on appellant’s car in an effort to get him to slow down.  Next, Officer Bienek turned around, and activated his emergency lights to try to get the vehicle to stop.  Officer Bienek then states in his report that the driver was traveling at such a high rate of speed that the vehicle “began to pull away from [his] squad car.”  At that point, he contacted all responding units and stated that the vehicle was not stopping.  The court found Officer Bienek credible when Bienek reasoned that appellant was speeding and attempting to evade the law.

            Officer Bienek had a reasonable articulable suspicion, on his own observations, to stop appellant; that, coupled with the informant’s personal observations, easily met the threshold for a good stop.

            The district court did not err in denying appellant’s motion to suppress.

            Affirmed.  

 



[1]  Officer Bienek gave appellant instructions on how to perform the horizontal gaze nystagmus test.  He stated that appellant did not pass this test.  Officer Bienek then asked appellant to perform a walk and turn test, but appellant refused, stating that he recently had surgery on his legs and had very bad arthritis.  Officer Bienek also asked appellant to take a preliminary breath test (PBT).  Appellant stated that he had asthma, but he tried to perform the test.  Officer Bienek reported that appellant would not close his lips around the mouthpiece.  Officer Bienek stated that when he placed a new mouthpiece on the PBT, appellant “huffed” into the mouthpiece and the screen read .082.  Officer Bienek determined that the sample was extremely poor and considered this to be a refusal.