This opinion will be unpublished and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

C1-96-1060

Steven Bret Johnson, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed November 19, 1996

Affirmed

Klaphake, Judge

Hennepin County District Court

File No. IC-473409

Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for Respondent)

Charles L. Hawkins, 2890 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Davies, Judge.

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

KLAPHAKE, Judge

Steven Bret Johnson appeals from an order sustaining revocation of his driving privileges, arguing that the district court erred in determining that the investigatory stop was lawful. Because we conclude that the officer demonstrated that the stop was based on specific and articulable facts and was not the product of mere whim, caprice or idle curiosity, we affirm.

D E C I S I O N

A limited investigative stop is lawful only if the officer has a "particularized and objective basis for suspecting the particular person stopped of criminal activity." State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). The officer need not observe an actual violation of vehicle or traffic laws; rather, the officer must

only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."

Id. at 921-22 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).

The district court in this case specifically found the officer's testimony to be more persuasive than Johnson's. Thus, on review we must simply examine the officer's testimony and determine whether, as a matter of law, the officer's observations provided an adequate basis for the stop. See Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

The officer's testimony articulated three possible grounds for the stop. First, when initially observed, the motorcycle crossed the center line and caused the officer to swerve onto the shoulder to avoid a collision. The officer immediately turned his vehicle around to pursue the motorcycle. Approximately four miles later, the officer observed a motorcycle which he believed to be the same motorcycle. Second, the officer claimed he observed this motorcycle change lanes without signaling a lane change. Third, after the officer activated his lights, he observed the motorcycle cross the fog line immediately prior to stopping.

We conclude that the latter two grounds are insufficient to support the stop. Johnson testified that he used hand signals because his motorcycle did not have turn signals, and the officer admitted he did not "recall" whether Johnson had signaled his lane change by hand. Additionally, because Johnson's crossing of the fog line occurred after the officer activated his lights, it cannot be relied upon as a basis for the stop.

Nevertheless, we conclude that the first ground articulated by the officer is alone sufficient to support the stop. An officer may lawfully stop a vehicle that he reasonably, albeit mistakenly, believes to be the vehicle he had been following after observing questionable driving activity. State v. Johnson, 392 N.W.2d 685, 687 (Minn. App. 1986); see State v. Dillon, 308 Minn. 464, 465, 242 N.W.2d 84, 85 (1976) (even if officer stops wrong vehicle because of mistake of fact, critical issue is still whether officer's actions were reasonable).

Even assuming, as Johnson has argued, that the first motorcyclist was not Johnson, the officer's actions were still reasonable. The officer testified that as the motorcycle first passed him, he saw a lone rider wearing dark clothing and riding a non-racing style motorcycle. He further testified that although he stopped the second motorcycle because it was the only motorcycle he saw, there was no question in his mind that it was the motorcycle he had seen earlier. Thus, the officer had a particularized and objective basis for stopping Johnson.

Affirmed.