This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jason William Christensen,
Filed May 3, 2005
McLeod County District Court
File No. K2-03-878
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael K. Junge, McLeod County Attorney, Mark A. Metz, Assistant County Attorney, 830 East 11th Street, Suite 112, Glencoe, MN 55336 (for respondent)
Barry V. Voss,
Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
Appellant challenges his third-degree DWI conviction, arguing that the police did not have a reasonable, articulable suspicion to make an investigative traffic stop based on a caller’s tip. We affirm.
in the morning of June 26, 2003, Sergeant Alan Leipold of the McLeod County
Sheriff’s Department received a dispatch call, reporting that “someone [had
been] driving through a yard at the address of
responding to the call, Sgt. Leipold proceeded south on Highway 22 and
approached the intersection of
As I proceeded past I noticed the lights of the vehicle. I then turned around and proceeded back north on Highway 22. As I turned right or east on 170th, the vehicle’s headlights were turned off. As I went through the curves and approached the vehicle, within 100 yards I noticed it was a white Lexus. At that time I activated my emergency grill lights.
After activating the emergency lights, Sgt. Leipold approached the vehicle and made contact with the driver, appellant Jason William Christensen. While conversing with appellant, Sgt. Leipold “could smell the odor of an alcoholic beverage on [appellant’s] breath.” When asked why he was parked on the side of the road, appellant explained that he and his friend “were talking.”
Sgt. Leipold testified that
his suspicions were raised by a number of factors, including (1) the early
morning hour, and the facts that (2) the vehicle was parked, (3) the vehicle’s
lights went off when the police car approached, (4) the vehicle matched the
description relayed by the dispatcher—that of a white Lexus or pickup truck,
and (5) there was little traffic in the vicinity that night. The officer explained that “[i]t’s very
unusual” for a vehicle to be parked at 1:15 in the morning on
In a pretrial motion before the district court, appellant argued that Sgt. Leipold did not have a reasonable, articulable suspicion to stop his vehicle and that all evidence gathered from the stop should be suppressed. But the court denied appellant’s motion to suppress, finding that the tip received by the police “possesse[d] sufficient indicia of reliability and that the officer had particularized and objective reasons for suspecting [appellant] of criminal activity.” Waiving his right to a jury trial, appellant was found guilty of third-degree driving while intoxicated in violation of Minn. Stat. §§ 169A.20, subd. 1(5); .26 (2002). This appeal follows.
“[W]hen reviewing a pre-trial order
suppressing evidence [or denying suppression] where the facts are not in
dispute and the [district] 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 (
We begin by noting that in this case Sgt. Leopold did not
stop appellant’s vehicle. Rather,
appellant’s vehicle was already stopped when Sgt. Leopold approached it to
investigate. As we have previously
stated, “[i]n the proper performance of his duties, an officer has not only the
right but a duty to make a reasonable investigation of vehicles parked along
roadways to offer such assistance as might be needed and to inquire into the
physical condition of persons in vehicles.”
Kozak v. Comm’r of Pub. Safety,
359 N.W.2d 625, 628 (
We also note that Sgt. Leopold’s activation of the squad
car’s grill lights prior to getting out and approaching the vehicle did not
turn the encounter into a seizure.
It may be that in many fact situations the officer’s use of the flashing lights likely would signal to a reasonable person that the officer is attempting to seize the person for investigative purposes. In this case, however, under all the facts, the officer’s conduct would not have communicated to a reasonable person in these physical circumstances that the officer was attempting to seize the person. A reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help if needed. A reasonable person in such a situation would not be surprised at the use of the flashing lights. It was dark out and the cars were on the shoulder of the highway far from any town. A reasonable person would know that while flashing lights may be used as a show of authority, they also serve other purposes, including warning oncoming motorists in such a situation to be careful.
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.
The factual basis for stopping a vehicle need not arise
from an officer’s personal observation, but may be supplied by information
acquired from a third party. Marben
v. Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (
After highlighting several of Sgt. Leipold’s suspicions, the district court concluded that the call received by police dispatch possessed “sufficient indicia of reliability and that the officer had particularized and objective reasons for suspecting [appellant] of criminal activity.” The court found that Sgt. Leipold had a reasonable suspicion to believe that appellant was involved in criminal activity when the vehicle (1) matched the description given by the caller, (2) was parked on the side of the road at such an early hour, (3) was less than two miles from the reported property damage, and (4) turned its headlights off when Sgt. Leipold approached it.
Considering the totality of circumstances, Sgt. Leipold had a
reasonable basis for stopping appellant’s vehicle. In this type of citizen-informant case,
courts begin with the presumption that citizen informants are reliable. Marben, 294 N.W.2d at 699. That presumption is clearly supported by this
record. The caller, Melissa Luthens,
identified herself to the dispatcher and provided information that appellant’s
vehicle—as a white Lexus or pickup truck, possibly en route to
A recent decision of this
court provides further support for this conclusion. In Yoraway v. Comm’r of Pub. Safety,
669 N.W.2d 622 (Minn. App. 2003), a private citizen identified himself to the
local dispatcher and reported a motorist driving recklessly.
the citizen described not only the specific suspicious driving but also the make, model, and color of the car; the approximate age and gender of the driver and the gender of the passenger; the location of the car when the traffic infractions occurred; and the direction in which and specific streets on which the car was traveling.
Sgt. Leipold’s own
observations and the totality of the circumstances also provide an adequate
basis for the stop. First, Sgt. Leipold “noticed a vehicle sitting
east on 170th with its lights on,” less than two miles from the Luthens’
property. Second, the vehicle sitting on
the side of the road matched the description offered by the caller as a white
Lexus, a vehicle not commonly found in the area. Third, Sgt. Leipold found it suspicious that
the vehicle first had its lights illuminated on the side of the road but then
were turned off when he approached.
Finally, Sgt. Leipold explained that very few cars were on the road at
that early morning hour. We recognize
that police officers are permitted to make inferences based on their special
training and experience. State v.
Harris, 590 N.W.2d 90, 99 (
 Luthens was later identified as the wife of the passenger of the vehicle reported to be driving through the yard. Sgt. Leipold was not aware of her identity when he received the dispatch.
Sgt. Leipold testified that if the dispatch says “no license plates” it means that the caller “didn’t know the plate [number] of the vehicle.”
The district court did not have the benefit of hearing testimony by Luthens or reviewing a transcript of her call to the dispatch.