This opinion will be unpublished and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
Filed July 12, 2005
Ramsey County District Court
File No. K6-04-223
Mike Hatch, Attorney General,
Manuel Cervantes, St. Paul City Attorney, John H. Stechmann, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
Ann McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from a conviction of gross-misdemeanor driving while impaired (DWI) in violation of Minn. Stat. § 169A.20, subd. 1(5). Appellant challenges the district court’s pretrial order denying his motion to suppress evidence. Because we conclude that the investigative stop was supported by a reasonable, articulable suspicion, we affirm.
Frederick Mobley was stopped by a
Mobley moved to suppress the evidence of intoxication, arguing that the officer lacked a reasonable, articulable suspicion to justify the stop. Based on the officer’s testimony at the omnibus hearing, the district court ruled that, given the totality of the circumstances, the officer had articulable suspicion to stop Mobley’s vehicle. The district court found that, although it was the female pedestrian’s suspicious conduct that initially drew the officer’s attention, Mobley had done “two suspicious things”: (1) he drove very slowly around the corner and then stopped; and (2) he made eye contact with the officer and then accelerated as he drove away.
entered into a Lothenbach
stipulation, waiving a jury trial and agreeing that the trial court could
decide his guilt or innocence based on a stipulated record, including the
Mobley argues that the officer did not have articulable suspicion to justify the investigative stop. He contends that his driving conduct was not suspicious and points out that the officer’s initial suspicions were directed at the female pedestrian rather than at him. He also contends that he did not engage in any evasive conduct that indicated an attempt to avoid an encounter with the police.
The constitutionality of an
investigative stop is a question of law subject to de novo review. State
v. Munson, 594 N.W.2d 128, 135 (
The district court found, based on
the officer’s testimony, that Mobley, after driving slowly around the corner,
stopped at the curb near where the female pedestrian was standing. Mobley has not shown that this finding was
clearly erroneous. And he does not
attempt to show that stopping by a female pedestrian who has herself been
acting suspiciously at 1:50 a.m. would not create a reasonable suspicion that
he was “cruising” for prostitution activity.
Cf. City of
While the female pedestrian here was
not known to be a prostitute, the officer was suspicious and was watching
her. Mobley’s slower-than-normal driving
by itself may not have created a reasonable suspicion. But
cf. State v. Haataja, 611 N.W.2d 353,
355 (Minn. App. 2000) (holding that slow driving that was impeding traffic and
appeared unnecessary provided articulable suspicion that the driver was
“somehow impaired”), review denied
(Minn. July 25, 2000). But this court
must look at the “totality of the circumstances” in determining whether police
had articulable suspicion to conduct a stop.
State v. Claussen, 353 N.W.2d
688, 690 (
A driver’s “evasive action” in response to the presence of police may provide a reasonable, articulable suspicion supporting a stop. See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (holding that a driver’s conduct in pulling off the highway after making eye contact with the officer, pulling into a driveway, and then re-emerging onto the highway, provided a reasonable, articulable suspicion); see also State v. Petrick, 527 N.W.2d 87, 88-89 (Minn. 1995) (holding that a driver’s turning off into the first available driveway after seeing the squad car, then immediately turning his headlights off, was evasive action warranting a stop).
Mobley argues that Johnson and Petrick require repeated efforts to avoid police or extremely evasive conduct, which he did not engage in. But although the evasive driving conduct in those caseswas more significant than Mobley’s mere acceleration from the curb, Mobley’s “evasive action” was not the sole justification for the stop, as it was in Petrick and Johnson.
Mobley’s argument also suggests that
the officer had to choose between the two suspicions that she entertained—(1)
prostitution or drug activity, or (2) a domestic incident—before conducting an
investigative stop. But it is well established
that police need not observe any criminal activity before making an
investigative stop. See Haataja, 611 N.W.2d at 354.
Nor is probable cause necessary for an investigative stop. State
v. Cavegn, 294 N.W.2d 717, 721 (
Mobley also argues that because he drove away from the suspicious female pedestrian, he cleared himself of any suspicion of wrongdoing or at least shifted the focus of suspicion to the woman. But Mobley’s act of driving away did not dispel the suspicion of a domestic incident. Rather, considering that the woman reacted by yelling, screaming, and waving her arms, it only confirmed that suspicion. Even as to the suspicion of prostitution, Mobley’s driving away did not necessarily dispel the officer’s suspicion that he was “cruising” for prostitutes. But, in any event, Mobley’s “evasive conduct” in accelerating as soon as he saw the police officer provided ample confirmation in general of the officer’s suspicions.
We conclude that the totality of the
circumstances provided the officer with a reasonable, articulable suspicion
justifying the investigative stop. The
officer observed Mobley slow his car and stop near a woman who had already
attracted the officer’s suspicions, saw the woman scream and wave her arms when
Mobley pulled away, and then saw Mobley accelerate after he made eye contact
with the officer. An experienced police
officer could form an articulable suspicion of criminal activity based on this
combination of facts. See Appelgate v. Comm’r of Pub. Safety,
402 N.W.2d 106, 108 (