This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1333

State of Minnesota,

Respondent,

vs.

David Donald Willaert,

Appellant.

Filed December 17, 1996

Reversed

Amundson, Judge

Nicollet County District Court

File No. K9-96-7

Daniel P. Doyle, Brandt Law Office, Assistant St. Peter City Attorney, 219 West Nassau, P.O. Box 57, St. Peter, MN 56082 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

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

Amundson, Judge

David Donald Willaert appeals from his judgment of conviction of gross misdemeanor operation of a snowmobile while intoxicated, arguing that the officer did not have a reasonable and articulable suspicion to stop his snowmobile a second time. We reverse.

FACTS

Shortly after midnight on December 10, 1995, a St. Peter police officer observed a snowmobiler, appellant David Donald Willaert, do a "donut" at an intersection. The officer stopped the snowmobile. The officer warned Willaert about his driving conduct and released him.

The officer then recalled that Willaert's driver's license had been revoked for a DWI about two months earlier. The officer followed Willaert, stopped him, and placed him in the squad car. When Willaert was in the squad car, the officer noticed indicia of intoxication. Willaert failed the PBT and some field sobriety tests.

Willaert was taken to the St. Peter Police Department, read the Implied Consent Advisory, and agreed to give a urine sample. The test showed a BAC of .20.

Willaert was charged with gross misdemeanor operation of a snowmobile while under the influence of alcohol.

At the contested omnibus hearing, Willaert argued that the officer's mistaken belief that a valid driver's license was required to operate a snowmobile was not a sufficient basis for the second stop. The court denied the motion to suppress. The court noted that the officer clearly had a right to stop the snowmobile the first time because he observed Willaert do a donut, which violates a St. Peter city ordinance. Regarding the second stop, the court reasoned that the stop of a snowmobile by an experienced police officer on the mistaken assumption that the operator needs a valid driver's license is not reasonable. Nevertheless, the court concluded that the second stop was valid:

The first stop of the snowmobile is valid. Further, if after releasing Defendant Officer Waldoch had changed his mind and decided to issue a citation for driving conduct, he could have legally stopped Defendant a second time. The second stop was very short in terms of time and distance. This Court finds that as long as Officer Waldoch had a legal basis to stop the snowmobile the first time, the second stop will not be invalidated.

The matter was submitted to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The court found Willaert guilty and this appeal followed.

D E C I S I O N

The parties agree that the first stop was valid because the officer observed driving conduct that violated a city ordinance. Willaert argues that the second stop was invalid and thus the evidence arising out of it should have been suppressed.

The Minnesota Supreme Court set out the standard for a routine traffic check:

[T]he factual basis required to support a stop for a "routine traffic check" is minimal. An actual violation of the Vehicle and Traffic Law need not be detectable. For example, an automobile in a general state of dilapidation might properly arouse suspicion of equipment violations. * * * It is enough if the stop is based upon "specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant the intrusion."

State v. McKinley, 305 Minn. 297, 303-04, 232 N.W.2d 906, 911 (1975) (quoting People v. Ingle, 36 N.Y.2d 413, 420, 369 N.Y.S.2d 67, 74, 330 N.E.2d 39, 44 (1975)). All that is required is that the stop not be "the product of mere caprice or idle curiosity." Id.

We emphatically reject the trial court's statement that merely because the first stop was valid, and the officer could have changed his mind about issuing a citation, the second stop was valid.

The trial court's analysis is at odds with the general rule that the scope of the detention for a Terry stop is limited to that time necessary for the police officers to confirm or ease their suspicions, after which the individual must be released unless probable cause to arrest appears. See State v. McKissic, 415 N.W.2d 341, 345 (Minn. App. 1987). In a case discussing "the problem of successive stops," the Eighth Circuit noted:

The importance of these requirements cannot be overstated for it is the limited and transitory nature of the stop that justifies the elimination of the probable cause requirement typically accompanying fourth amendment seizures.

United States v. Ilazi, 730 F.2d 1120, 1125 (8th Cir. 1984). That court stated that a second stop is "inherently more intrusive and coercive than the first." Id. at 1126.

The trial court's analysis is also at odds with other courts that have considered the issue. Those courts have required that some additional information be acquired between the first and second stops.[1]

Thus, we conclude that the second stop was invalid and the evidence should have been suppressed.

Reversed.

[ ]1 See United States v. Garcia, 23 F.3d 1331, 1334-36 (8th Cir. 1994) (rejecting reasons given for second stop and holding that it was invalid); United States v. Peters, 10 F.3d 1517, 1522-23 (10th Cir. 1993) ("[I]t would contravene the teachings of Terry and Place to allow Agent Ochoa to make the second stop based on nothing more than the information provided him about Officer Martin's encounter and a repeat occurrence of the same _suspicious' conduct that Agent Ochoa knew had proved illusory at the earlier stop."); State v. Aillon, 521 A.2d 555, 563 (Conn. 1987) ("It may well be that a second police stop for the same motor vehicle violations that prompted Murphy's first stop would have been unjustifiable. The second stop, however, had a different impetus. That stop was designed to investigate whether the defendant might be a suspect in a nearby burglary of which Murphy was unaware when he made the first stop."); McKnight v. State, 612 N.E.2d 586, 588 (Ind. App. 1993) (arresting officer obtained additional information between stops, which gave rise to a reasonable suspicion that defendant had committed an offense and "this suspicion was independent of the initial stop."); State v. Rodriguez, 904 S.W.2d 531, 537 (Mo. App. 1995) (second stop was based solely on trooper's "hunch that the van might contain contraband"); Jackson v. Commonwealth, 470 S.E.2d 138, 143 (Va. App. 1996) ("[T]he police gained additional evidence after the unsuccessful patdown of appellant to justify the stop of the car."); Jha v. Commonwealth, 18 Va. App. 349, 353, 444 S.E.2d 258, 260 (Va. App. 1994) ("When detained, appellant stated that he lived in Haymarket and intended to return home. Instead, appellant drove in the opposite direction, entered a residential area in which he did not live, got out of his car, and proceeded to walk around. Appellant was detained only after the police found a van, with a broken window and glass lying on the seat, in the area in which appellant had just been walking.").