This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1056

State of Minnesota,

Appellant,

vs.

Chad Charles Jensen,

Respondent.

Filed November 5, 1996

Affirmed

Randall, Judge

Dissenting, Huspeni, Judge

Olmsted County District Court

File No. T6-95-6251

Hubert H. Humprhey, III, Attorney General, David S. Voigt, Assistant Attorney General, 515 SW 2nd Street, Rochester, MN 55902 (for Appellant)

Frederick S. Suhler, 2212 SW Second Street, Rochester, MN 55902 (for Respondent).

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Randall, Judge.

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

RANDALL, Judge

The state arrested respondent and charged him with driving under the influence (DUI) in violation of Minn. Stat. § 169.121, subds. 1(a), (d), (e) and 3(b) (1994). Respondent moved for dismissal of the charges against him, alleging, inter alia, that the arresting officer had insufficient cause to stop him. The district court granted respondent's motion to dismiss on the ground that the state failed to articulate any clear statement of suspected criminal activity to justify stopping respondent. On appeal, the state argues that the district court improperly dismissed the charges against respondent because respondent's stop was supported by a specific and articulable suspicion of criminal wrongdoing. We affirm.

FACTS

At approximately 1:30 a.m. on July 9, 1995, State Trooper Scott McConkey, who had a television reporter riding with him that night, responded to a police radio request for assistance at a fight in Byron, Minnesota. When McConkey arrived at the scene, the fight had ended and the alleged combatants had left. McConkey began to patrol the area, and found several people who confirmed that a fight had occurred and that those involved had left in a white Chevrolet Cavalier and a red Dodge Omni or Plymouth Horizon.

McConkey resumed his patrol and eventually stopped at a Kwik Trip store where he found the Cavalier and Omni/Horizon described to him earlier. McConkey confirmed that the individuals with the two cars had been involved in the reported fight, and learned from them that the driver of a green pickup had also participated in the fight. Jensen then drove by the Kwik Trip in his green pickup, which the individuals at the Kwik Trip identified as the one driven by the other participant in the fight. McConkey left the Kwik Trip to pursue the pickup.

McConkey followed the truck for two blocks without seeing Jensen commit any traffic violations, then stopped the truck. When McConkey stopped Jensen, Jensen admitted that he had participated in the fight and that he had been drinking. McConkey gave Jensen several field sobriety tests, which Jensen failed. McConkey arrested Jensen and gave him an intoxilyzer test. Jensen failed the intoxilyzer test and was charged with DUI.

D E C I S I O N

A reviewing court in a pretrial appeal will reverse a trial court determination only if the state clearly and unequivocally shows that the trial court erred in its judgment, and that the error, unless reversed, will have a critical impact on the outcome of the prosecution. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987). Findings of fact will not be set aside unless clearly erroneous, and due regard will be given to the trial court's opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. Where the district court credits the uncontradicted testimony of the arresting officer, the reviewing court determines as a matter of law whether an adequate basis for the stop existed. Berge v. Commissioner of Public Safety, 374 N.W.2d 730, 732 (Minn. 1985). Where a trial court rejects some of the testimony of an arresting officer, however, an appellate court reviews a finding of no articulable suspicion under the clearly erroneous standard. Id. at 732.

The state argues that the district court should have upheld officer McConkey's stop of respondent. "A constitutionally valid investigative stop requires that an officer have a reasonable suspicion of criminal activity." State v. Teigen, 381 N.W.2d 529, 530 (Minn. App. 1986) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968)). An officer has the requisite reasonable suspicion if he has a "particularized and objective basis for suspecting the particular persons stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981). A stop must not be the product of mere whim, caprice, or idle curiosity. Marben v. State, Dep't of Public Safety, 294 N.W.2d 697, 699 (Minn. 1980).

Here, officer McConkey testified as to the events surrounding respondent's arrest. The district court made the following findings, which reflect the trial court's assessment of McConkey's testimony:

The trooper had a passenger with him that evening -- a cameraman from a local television station -- whose purpose * * * was to film a DUI stop and arrest. After more than 3 hours with his ride-along partner, the trooper still had not encountered a DUI suspect for filming. Then, about 1:30 a.m., Olmsted County dispatch received a request for a Sheriff's deputy to respond to a report of a fight in Byron, MN. Although the trooper acknowledged that his services are to be provided upon the request of the local authorities, he often "volunteered" to respond and assist if he happened to be in the area. (He stated: "I am the lone cowboy our [sic] there.") Such was the case that evening; he heard the request from Olmsted County dispatch for the deputy sheriff, and the trooper voluntarily responded to Olmsted County dispatch that he would respond. He arrived at the scene, and found nothing -- all was quiet and apparently the combatants had ceased their endeavors. Olmsted County Sheriff deputies then arrived to continue the investigation; nonetheless, the trooper began cruising the area, apparently looking for nothing in particular, except perhaps information about the reported fight. He learned * * * that there were no reports of injury, or anything else of any significance, apparently. Still, the trooper persisted in cruising the streets; it is not clear at all why he was working at this, or what he was seeking. (It seems quite probable, however, that he could be seeking a possible DUI scene for his ride-along to film.) Eventually the trooper learned additional information -- that a third vehicle had been involved, a green pick-up truck. He then seems to have set out to look for this vehicle, spotted it, and notified the deputies that he would stop the green pick-up. He followed the truck, and testified that he noticed no traffic violations or driving behavior that would occasion any suspicion of DUI possibilities. The trooper nevertheless stopped the vehicle * * *.

On the basis of these findings, the district court held that the state had shown neither probable cause[1] nor an articulable suspicion of criminal wrongdoing to stop respondent. This is not a Berge case, where the testifying officer's credibility is not at issue and the only question for the court to resolve is whether the state had shown an articulable suspicion as a matter of law. The district court made clear throughout its Memorandum that it had reservations about McConkey's credibility and whether his stop of respondent was motivated by facts supporting articulable suspicion, or by the desire to provide his ride-along companion with a DUI arrest to film. Because the district court had reservations about officer McConkey's testimony and did not credit it entirely, we review the court's findings under the clearly erroneous standard.

Notwithstanding the district court's use of the term "probable cause" in its Order and Memorandum, we recognize, and respondent understands, that a reviewing court will assess the validity of a stop based on a showing of reasonable or articulable suspicion, and not probable cause. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. As a result, regardless of the language used by the district court, we review the stop under the lower, articulable suspicion standard, rather than the higher, probable cause standard applicable on review of arrests.

Even applying the lower, articulable suspicion standard, the state has not clearly and unequivocally shown that the district court's finding of no articulable suspicion of criminal activity was erroneous. The district court wrote:

The stop of defendant's vehicle seems to have been made as a result of curiosity and an attempt by the trooper to accommodate the cameraman's search for filming of a DUI arrest. The trooper did not articulate any clear statements of suspected criminal or illegal activity, except for the report of a fight which had dissipated and vanished by the time the trooper arrived. * * * But for the filming, it is doubtful that this defendant would have been found, charged, and brought before the court.

In addition, the Court is concerned by the State's assertion that the State had no control over the tape or its use. The State did indeed have no control, but that is because the trooper and the television cameraman/station had no pre-arranged understanding about the ultimate use or control of the tape. The fact that the State assumed no control and abrogated any responsibility to preserve or protect evidence, should not now be used to any possible prejudice to this defendant.

Thus, under the circumstances of this particular case, the interests of justice require that the charges against the defendant be dismissed.

Based on the trial court's memorandum, the transcript, and the record as a whole, we conclude the trial court properly placed this case within the category of stops prohibited as the product of "mere whim, caprice, or idle curiosity."

Although we do not have to decide the case on this basis, we note with approval the district court's language, "the interests of justice require that the charges against the defendant be dismissed." See Minn. Stat. § 631.21 (1994) (authorizing dismissal of a criminal action in furtherance of justice); see also State v. Krotzer, 548 N.W.2d 252, 255 (Minn. 1996) (discussing statutory power of district court to dismiss criminal charges in furtherance of justice). District court trial judges in Minnesota have long had the power, and the obligation, to interpose themselves between a citizen and the arbitrary power of the state when a criminal charge by the state (a situation whose serious overtones for the citizen cannot be overstated) does not pass "the smell test." This power is not to be used indiscriminately, but when used, pursuant to the thoughtful judgment of a trial judge, as it was used here, it is to be jealously protected. We find no clear error of law, nor any abuse of discretion by the trial court on this record.

Because we affirm the district court's finding that the state failed to show adequate cause to justify respondent's stop, we do not address the critical impact prong of Joon.

Affirmed.

HUSPENI, Judge (dissenting)

I dissent because I believe the district court erred as a matter of law in finding the stop of respondent's vehicle to be invalid, and because that error critically impacted the prosecution of the state's charges against respondent.

I agree that the district court voiced reservations about Officer McConkey's credibility. Judging credibility is a proper and necessary function of the finder of fact. But the court's reservations, I submit, went solely to the officer's motivation: why he volunteered to respond in the first place, and why he persisted in cruising the scene despite the arrival of sheriff's deputies, despite no reports of injury, and despite the lack of any evidence of significance. The court apparently found the officer's motivation to be fatally flawed because it was possibly to provide a "DUI scene for his ride-along to film."

What the district court did not challenge, however, is the officer's testimony regarding the circumstances of his receipt of information that a green pickup truck was also involved in the incident and his subsequent identification of that vehicle. Uncontradicted and unchallenged testimony in the record demonstrates that, as a matter of law, the officer had the requisite articulable suspicion to justify the stop of respondent's vehicle. In the presence of objective articulable suspicion, even an improper motive cannot invalidate the stop. State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983).

[ ]1 Although the trial court used the term "probable cause" at one point, appellant, respondent, and this court agreed that the standard is the lower threshold of "articulable suspicion," and that is the threshold we apply to the facts.