This opinion will be unpublished and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,
Kurt Bradley Alger,
Filed September 28, 2004
Winona County District Court
Lawrence Hammerling, Deputy State Public Defender, Marie L. Wolt, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Minnesota Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Richard F. Blahnik, Winona City Attorney, Jennifer S. Holl, Assistant Winona City Attorney, 177 Main Street, Suite 206, P.O. Box 167, Winona, MN 55987 (for respondent)
Considered and decided by Randall, Presiding Judge, Willis, Judge, and Minge, Judge.
On appeal from his conviction of fourth-degree DWI, appellant argues that police, who had a report of a full-sized Ford pickup speeding in a snowstorm, did not have reasonable suspicion to stop his compact Dodge pickup merely because it was one of only two pickups seen in the area. We affirm.
On January 31, 2003, at
approximately 2:00 a.m., appellant Kurt Bradley Alger was stopped for speeding
in Winona. At the time, it was snowing,
and two police officers were patrolling in the area. Officer Chris Stark was driving north on Highway 61. Stark testified that he observed three
vehicles traveling in the opposite direction.
He stated that the first vehicle was a squad car, and the second vehicle
was a “smaller pickup” traveling a few car lengths behind the squad car. Stark testified that the third vehicle,
which was about a half-mile behind the other two, was a “larger pickup” that
appeared to be speeding. Using his
radar unit, Stark determined that the third vehicle was traveling at 65 miles
per hour, ten miles per hour over the speed limit. Stark testified that he believed the vehicle was a “mid-90’s
Ford” pickup. Stark
then made a radio call describing the vehicle.
Officer D. Allen answered the radio call and requested clarification of
the description of the pick-up. Allen
was in the squad car ahead of the two other vehicles. Allen pulled over so the vehicles could pass,
and observed that the first truck was a Ford Ranger and the second truck, which
traveling much faster, was a Dodge Dakota. Allen asked Stark over the radio which truck Stark wanted stopped. Stark told him the Dodge Dakota. Stark testified that he told Allen to stop the driver of the Dodge Dakota because the “Ranger is a much smaller pickup, and the profile that I saw of the pickup would not match the profile of a Ranger, the front end particularly.”
Allen stopped the driver of the Dodge Dakota and identified appellant as the driver. Allen observed that appellant smelled strongly of alcohol, and appellant indicated that he had “four beers” that evening. Stark arrived on the scene and took over the DWI investigation. Appellant was subsequently arrested for fourth-degree DWI.
Appellant made a motion to suppress the evidence, arguing that the stop was not based on reasonable, articulable suspicion and, therefore, was unconstitutional. The district court denied the motion. The case was submitted to the court on stipulated facts. Appellant was found guilty of fourth-degree DWI and sentenced to 30 days in jail. The jail sentence was stayed upon fulfillment of probationary conditions, payment of a $400 fine, and other fees and assessments. The district court stayed appellant’s sentence pending this appeal.
“[W]hen reviewing a pre-trial order
suppressing evidence where the facts are not in dispute and the trial court’s
decision is a question of law, the reviewing court may independently review the
facts and determine, as a matter of law, whether the evidence need be
suppressed.” State v. Othoudt, 482
N.W.2d 218, 221 (Minn. 1992). Matters
relating to the reasonability of suspicion required for investigative stops are reviewed de novo. State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003). This court reviews whether investigatory stops or seizures are lawful as a mixed question of law and fact. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732-33 (Minn. 1985). When the facts are undisputed, an appellate court should analyze the officer’s testimony and “determine whether, as a matter of law, his observations provided an adequate basis for the stop.” Id. at 732.
The legality of an investigative stop depends on the stop being based on a reasonable suspicion of criminal activity supported by facts and rational inferences. Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80 (1967). Brief investigative stops do not require a showing of probable cause, but rather reasonable suspicion. Id. Investigatory stops are lawful if the state can prove that the officer had a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quotation omitted). The stop must be supported with specific and articulate facts from which it can be shown that the officer made rational inferences. Id. at 921-922.
look to the totality of the circumstances when determining whether a stop is
justified. State v. Kvam, 336
N.W.2d 525, 528 (Minn. 1983). Officers
are allowed to point to the totality of the circumstances when explaining and
justifying a stop as well. State v.
Harris, 590 N.W.2d 90, 99 (Minn. 1999).
Additionally, the courts recognize that officers are permitted to make
inferences based on their special training and experience.
Id. It may be acceptable for an officer to make traffic stops based wholly on the information of another person. Marben v. Dept. of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).
This case is similar to State v. L’Italien,355 N.W.2d 709 (Minn. 1984). In L’Italien, police stopped a van suspected of participating in a store burglary. 355 N.W.2d t 710. One of storeowners saw the van driving away and called the police. Id. at 709-710. Based on information given by the owner, the police knew that the van they were looking for was light colored and was recently driving southbound on Highway 61. Id. The van that was stopped was light colored, traveling south on Highway 61, and was one of only two cars that the officer saw during his search for the van. Id. at 110. Based on these circumstances, the court held that the stop was reasonable. Id.
As in L’Italien, the officer who made the stop received information from another person, in this case, another police officer. Like in L’Italien, there were very few cars on the road, Stark’s description of the vehicle was general, and Stark’s observation of the speeding vehicle and the stop of the vehicle were close in proximity. In L’Italien, the facts are unclear as to whether the other vehicle on the highway was a light colored van. Here, however, Allen observed two trucks fitting the basic description but observed that appellant’s vehicle was the only one speeding. Stark confirmed that appellant’s pick-up truck was the correct vehicle because the Dodge Dakota was the larger of the two pickups.
Appellant argues that because Stark could not give any further description of the pickup other than that it appeared to be full size, which he was wrong about, the stop was unconstitutional. Appellant also argues that because the snowstorm made visibility difficult and there are many pickup trucks in Winona, there was not a reasonably particularized and objective basis for the stop.
As the state points out, there are no ingress or egress routes between where Stark turned around to help with the stop and where Allen pulled over to watch for vehicles traveling behind him. No incoming or outgoing traffic would make the possibility of additional pickup trucks entering the highway unlikely. Allen stated that the second pick-up was traveling much faster than the first pickup. This indicates that the vehicles remained in the same order when Stark witnessed the second pickup truck speeding. Also, upon request for clarification, Stark immediately said that Allen should stop the Dodge Dakota and not the Ford Ranger. Although Stark initially described the speeding truck as a “mid-90’s Ford,” he later clarified that it was actually the Dodge Dakota, appellant’s vehicle. Further, while appellant himself testified that his truck is a compact model, he also testified that his pickup appears bigger because of “the elements on the outside of it.”
We conclude that Allen was permitted to act on Stark’s tip. The unlikelihood of other pickup trucks entering the highway, the unlikelihood of the pickups switching order on the road, and the testimony of both appellant and Stark in regards to the appearance of appellant’s pickup truck, meet the low threshold of reasonable, articulable suspicion. Based on the totality of the circumstances, Allen had a particularized and objective basis for making the stop.