This opinion will be unpublished and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
Lyon County District Court
File No. K803763
Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Richard R. Maes, Lyon County Attorney, Nicole Springstead, Assistant County Attorney, 607 West Main Street, Marshall, MN 56258 (for appellant)
John M. Stuart, Minnesota Public Defender, Mark D. Nyvold, Assistant Public Defender, Suite W1610, 332 Minnesota Street, St. Paul, MN 55101; and
Cecil E. Naatz, 1210 East College Drive, Marshall, MN 56258 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Schumacher, Judge; and Forsberg, Judge.*
On appeal from a pretrial order suppressing evidence and dismissing charges of fourth-degree controlled-substance offense and possession of drug paraphernalia, the state argues that the district court clearly erred in ruling that a police officer who stopped the vehicle in which respondent was a passenger did not have reasonable, articulable suspicion to expand the stop by asking for respondent’s driver’s license. We affirm.
On the night of August 26, 2003, Deputy Sheriff Eric Wallen pulled a car over for speeding. Approaching the car, he observed four people inside: an adult female driver, an adult male passenger, and two juvenile females in the back seat. The two girls appeared to be approximately 11-13 and 3 years old, respectively. Both the driver and the male passenger had bloodshot, watery eyes. Deputy Wallen asked the driver, Jessica Henry, for her license. As she took it out, she seemed nervous and “was shaking.” Deputy Wallen then asked the front-seat passenger, respondent Michael Ahl, for identification. Ahl gave Deputy Wallen his name and date of birth and, according to Deputy Wallen, did not look at him and stared straight ahead as he spoke.
Deputy Wallen ran a records check on Ahl and Henry. The results showed that Henry’s license was valid, that she had obtained an order for protection against Ahl but that Ahl had not been served with it. Deputy Wallen asked Ahl to step out of the car and walk with him to his squad car so that Deputy Wallen could serve him with the order for protection. Deputy Wallen called for a second officer, and when Deputy Dan DeSmet arrived, Deputy Wallen spoke with Ahl while Deputy DeSmet spoke with Henry. Henry told Deputy DeSmet that the older child in the car was her sister and the younger child was her daughter. Deputy DeSmet asked Henry if she was using drugs. She repeatedly denied drug use until Deputy DeSmet twice threatened to have her daughter taken away from her if she refused to admit drug use or possession. Henry then admitted that there might be marijuana in Ahl’s bag in the trunk of the car. Ahl then confirmed that there were drugs in the car belonging to him. A search revealed a bag containing marijuana, a plastic container holding about 2.5 grams of methamphetamine, a mirror with white residue on it, two scales, and a pipe containing marijuana residue. Ahl was charged with possession of a controlled substance and drug paraphernalia. Ahl moved to dismiss the charges against him, arguing that the officers illegally obtained the evidence supporting the charges by unlawfully expanding the scope of a routine traffic stop.
At the omnibus hearing, Deputy Wallen testified that he asked Ahl for identification because both Ahl and Henry seemed nervous, and he was concerned about the possibility of kidnapping because the older child in the car was too old to be the child of Ahl or Henry. He further stated that the couple seemed “odd or different.”
The district court concluded that while the traffic stop was valid, Deputy Wallen had “no reasonable articulable suspicion of criminal activity beyond . . . the traffic stop to justify the expansion of the scope of the traffic stop by requesting the identification of the passengers, including [Ahl].” The district court suppressed the evidence seized as fruit of the invalid expansion of the scope of the traffic stop and dismissed all charges against Ahl. This appeal by the state followed.
“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing – or not suppressing – the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). This court accepts the district court’s findings of fact unless they are clearly erroneous. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). Whether an investigatory stop is valid is a legal determination subject to de novo review when the facts are undisputed. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1995). On appeal from a pretrial order, a district court’s decision will not be reversed unless it has a critical impact on the prosecution and it is “clearly and unequivocally” erroneous. State v. Miller, 659 N.W.2d 275, 278 (Minn. App. 2003) (quotation omitted), review denied (Minn. July 15, 2003). In this case, the suppression of the evidence meets the standard of critical impact. See State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997) (stating dismissal of charge following suppression of “all the evidence” meets critical impact element).
The state argues that the age discrepancies among the car’s occupants necessitated further investigation so that Deputy Wallen could ascertain the “unresolved relationship” among the car’s occupants and could rule out the possibility that the children had been kidnapped. The state argues that Deputy Wallen’s concern about kidnapping provides a reasonable, articulable suspicion for expanding the stop. We disagree.
Generally, an investigatory stop is limited in scope and duration “to the justification for the stop.” State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003) (determining that searching a passenger was not justified when the officer had no articulable basis for suspecting criminal activity beyond the fact that the stop occurred in a “high drug” area). Even if a stop is initially justified, the stop may not be expanded unless the officer has a reasonable, articulable suspicion of further criminal activity. Id. at 418-19. In arriving at a reasonable suspicion, an officer may make inferences and deductions that might elude an untrained person. Applegate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). But the officer must demonstrate that the suspicion was based on objective facts and not a mere hunch. State v. Cripps, 533 N.W.2d 388, 391-92 (Minn. 1995). And while an officer’s perception of an individual’s nervousness may contribute to an officer’s reasonable suspicion, it is not sufficient by itself but must be coupled with other particularized and objective facts. See State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003) (concluding that after being pulled over for a broken taillight, a driver’s nervousness was not enough to justify further questioning concerning contraband in the car); State v. Tomaino, 627 N.W.2d 338, 341 (Minn. App. 2001) (determining that a driver’s nervousness, combined with a marijuana-leaf shaped key chain, was not enough to show reasonable suspicion of criminal activity after a motorist was pulled over for a cracked windshield). The Minnesota Supreme Court recently affirmed this line of analysis in State v. Askerooth, 681 N.W.2d 353 (Minn. 2004), concluding that detention following a routine traffic stop must be either reasonably related to the initial basis for the stop or reasonable suspicion of additional criminal activity.
While Deputy Wallen claims that he was suspicious of kidnapping because of Henry and Ahl’s nervousness and the age discrepancies among the occupants of the car, his actions do not support this claim. Although Deputy Wallen initially asked all of the car’s occupants for identification, he did not pursue the issue after being told that the girls did not have IDs and that the older of the two was 13. Deputy Wallen made no further effort to talk to the girls or to otherwise ascertain their identities. Deputy Wallen did not ask the car’s occupants how they were related. It was not until Deputy DeSmet arrived at the scene that anyone asked Henry how the children are related to her. And, when Deputy Wallen initially radioed Deputy DeSmet for back-up, no mention was made of kidnapping concerns. Instead, Deputy DeSmet asked Deputy Wallen “how much drugs” he thought were in the car, and Deputy Wallen replied that there had “to be some.” Furthermore, the age differential, coupled only with the nervousness of Henry and Ahl, does not reasonably support a suspicion of kidnapping.
The state also argues that the district court erred in finding Deputy Wallen’s testimony “not credible” and claims that credibility is not an issue in this case. We disagree. The issue is whether Deputy Wallen had a reasonable, articulable suspicion for extending the scope of the traffic stop and whether he based this suspicion on objective facts and not a mere hunch. In order to ascertain the basis for Deputy Wallen’s suspicions, it was necessary for him to testify. He did so, and the district court found his testimony to be less than credible. When credibility is an issue, this court will defer to the primary observations and trustworthiness assessments made by the district court. State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11, 1997).
Because there is no evidence that Deputy Wallen had a reasonable, articulable suspicion of further criminal activity that justified expanding the scope of the traffic stop by asking for Ahl’s identification, the district court did not err in suppressing the evidence seized and dismissing the charges against Ahl.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.