This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-95-2608

State of Minnesota,

Appellant,

vs.

Donald Leslie Jones,

Respondent.

Filed June 4, 1996

Reversed and remanded

Crippen, Judge

Olmsted County District Court

File No. K1952026

Hubert H. Humphrey, III, Attorney General, Raymond F. Schmitz, Olmsted County Attorney, David S. Voigt, Assistant Olmsted Co. Attorney, 515 S.W. Second Street, Rochester, MN 55902 (for Appellant)

John M. Stuart, Minnesota State Public Defender, Leslie J. Rosenberg, Special Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414-3230 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

The State of Minnesota appeals from the trial court's pretrial dismissal, which was based on the ground that police lacked probable cause to believe that the defendant drove while under the influence of alcohol. We reverse and remand.

FACTS

Early in the morning of July 24, 1995, Olmsted County Deputy Sheriff Jeffrey Amundson, a licensed peace officer, received a call from a dispatcher who stated that a citizen had called on a cellular phone to report a "drunk driver" who was driving "erratically" and "all over the road," heading east on Highway 30 towards Highway 63. The dispatcher told Amundson to look for three cars; the "drunk driver" would be in the first car, followed by a pick-up truck, followed by the citizen witness in the last car.

Deputy Amundson and another officer, Deputy Scheckel, came upon three cars driving in the area described by the dispatcher. Deputy Scheckel remained at the intersection and obtained information from the caller in the third car. Deputy Amundson followed the first car and eventually stopped the car and identified the driver as respondent Donald Jones. Amundson arrested respondent for driving under the influence of alcohol and refusing to submit to a test to determine his blood alcohol concentration.

The court granted respondent's motion to suppress the evidence from the stop and dismissed the complaint against respondent for lack of probable cause.

DECISION

Before an officer may stop a vehicle, the officer "must have a specific and articulable suspicion of a [criminal] violation." Marben v. State, 294 N.W.2d 697, 699 (Minn. 1980). The factual basis for a stop "need not arise from the officer's personal observation, but may be supplied by information acquired from another person." Id.

Here, the trial court concluded that the tip from the citizen observer was insufficient by itself to provide a basis for the stop. Because the evidence concerning the tip was not disputed, we must independently review the facts to determine, as a matter of law, whether the evidence should have been suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

In Marben, the court concluded that an officer had demonstrated a specific and articulable suspicion warranting his stop of a vehicle for "tailgating" where a trucker had called the officer on a radio device and asked him to "check out a vehicle that had been following him [the trucker] for the last 60, 70 miles * * * just about under his trailer." 294 N.W.2d at 698. The court presumed that the informant was reliable because he was a private citizen. The court concluded that this apparent reliability was enhanced by the fact that the trucker had informed the officer that the vehicles were near the officer's squad car, which the officer was able to verify. Id.

In Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552 (Minn. 1995), the supreme court again addressed a stop based on a citizen's tip. The officers in that case had received a radio dispatch stating that a citizen had described a vehicle and claimed that the driver was "possibly a drunken driver." Id. at 553. The officers followed and stopped the vehicle, even though they had witnessed no erratic driving. The Olson court concluded that the tip that the driver was "possibly drunk," without more, was insufficient to justify the stop.

The present case is distinguishable from Olson because there was substantially more cause for Deputy Amundson's stop. The dispatcher had elicited specific information from the citizen caller to learn why the caller believed a driver was drunk. The caller described respondent's vehicle movement as "erratic" and "all over the road." The caller's reliability was enhanced by the fact that he described the three cars and their general location, and the value of the report was enlarged later when this description was proven true. Finally, the caller identified himself and later made himself available for an interview on the scene.

We will reverse the trial court's suppression of evidence only if the state can demonstrate clearly and unequivocally that an error has occurred and that it has a critical impact on the outcome of the trial if it is not reversed. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987). The state has met both of those tests in the present case. Deputy Amundson had probable cause to stop respondent, and the suppression decision had a critical impact on the outcome of the trial because the complaint against respondent was dismissed.

In light of our conclusion on cause established by a citizen's report, we need not examine whether Deputy Amundson had independent cause to make the stop, based on his personal observations of respondent's driving.

Reversed and remanded.