This opinion will be unpublished and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

C4-96-1408

State of Minnesota, City of Medina,

Appellant,

vs.

Nathan Paul Kenney,

Respondent.

Filed December 17, 1996

Reversed and remanded.

Crippen, Judge

Hennepin County District Court

File No. 96029728

Steven M. Tallen, Tallen & Baertschi, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2224

Ronald J. Johnson, Johnson Law Firm, Ltd., P.O. Box 5461, Hopkins, MN 55343

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

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

CRIPPEN, Judge

Appellant municipality disputes the suppression of evidence and dismissal of charges against respondent Kenney. We reverse because the police deputy had a reasonable, articulable suspicion to justify the stop of the vehicle driven by respondent.

FACTS

The parties stipulated to the facts. While stopped northbound at an intersection, a deputy observed a vehicle with two male occupants make a left turn southbound, directly in front of the deputy. Looking through his rear view mirror, the deputy then saw the vehicle cross the center line. The deputy turned around and attempted to follow the vehicle, but the vehicle turned and parked in a driveway about one eighth of a mile from the intersection. As the deputy approached the driveway, he observed the two males quickly exit the truck and get into what appeared to be a "running stance." The deputy turned around and parked farther down the road. Within two minutes, the deputy observed the same vehicle pull out of the driveway and drive toward him. The deputy then pulled the vehicle over, observed indicia of intoxication on respondent driver, and arrested him. Respondent subsequently took a breath test that showed an alcohol concentration of .18.

Appellant charged respondent with driving under the influence, driving with an alcohol concentration of .10 or more, Minn. Stat. § 169.121, subd. 1(a), (d), (e) (1994), and careless driving, Minn. Stat. § 169.13 (1994). The trial court granted respondent's motion to suppress the evidence from the stop and to dismiss the charges.

D E C I S I O N

When reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, an appellate court may review the facts independently and determine, as a matter of law, whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

Under the articulable suspicion standard, a police officer may make a brief, limited investigative traffic stop if the officer can articulate "a particular and objective basis for suspecting the person stopped of criminal activity." State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989); Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). Although a stop may not be "the product of mere whim, caprice, or idle curiosity," a stop is valid where the officer bases it "upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" State v. Barber, 308 Minn. 204, 206, 241 N.W.2d 476, 477 (Minn. 1976) (quoting People v. Ingle, 330 N.E.2d 39, 44 (N.Y. 1975) (citation omitted)). Courts view the articulated observations of a police officer from the perspective of a trained law enforcement officer, who may make "inferences and deductions that might well elude an untrained person." State v. Menard, 341 N.W.2d 888, 892 (Minn. App. 1984) (quoting United States v. Cortez, 449 U.S. 411, 419, 101 S. Ct. 690, 695 (1981)), review denied (Minn. Mar. 15, 1984).

Evasive conduct by a driver may provide sufficient reasonable suspicion for an officer to stop a vehicle. State v. Petrick, 527 N.W.2d 87, 88-89 (Minn.), cert. denied, 115 S. Ct. 2008 (1995); Johnson, 444 N.W.2d at 825; see also State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (finding stop valid where defendant abruptly walked in a different direction after making eye contact with officer), aff'd sub nom. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993); Klotz v. Commissioner of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989) (holding that driver's furtive behavior of attempting to return to a rest stop building each time he saw an officer near his vehicle properly contributed to the officer's particularized and objective basis for stopping the driver on suspicion of driving under the influence), review denied (Minn. May 24, 1989).

In Johnson, while waiting to turn onto a highway, a state trooper made eye contact with the driver and sole occupant of a passing truck. Johnson, 444 N.W.2d at 825. The truck immediately turned onto a side road and "appeared to immediately disappear." Id. Because the officer could not see the truck or any dust that might be caused by the truck traveling down the side road, he concluded that the truck must have pulled into a driveway. Id. As the trooper stopped to assist a car on the shoulder, the truck emerged within a "very short time" from the side road and returned to the highway. Id. The officer noted that the same driver was driving the truck and was still alone. Id. Inferring that the driver turned off the highway to avoid the officer, the officer stopped the driver, who admitted to driving with a revoked license. Id. Upholding the trooper's stop, the Minnesota Supreme Court stated:

While [the driver's] behavior may have been consistent with innocent behavior, it also reasonably caused the officer to suspect that [he] was deliberately trying to evade him. In short, the record we have on appeal in this case indicates that the trooper reasonably inferred that [the driver] was deliberately trying to evade him and that, as a result, the trooper reasonably suspected petitioner of wrongdoing.

Id. at 827. Thus, the court found that the officer articulated a sufficient basis for stopping the vehicle. Id.

Similarly in Petrick, "within seconds" after a police officer began following a vehicle, it turned into the next available driveway. 527 N.W.2d at 87. The driver immediately shut off the headlights as the vehicle began to proceed down the "fairly long driveway." Id. The officer testified that in his experience, people trying to evade the police "commonly" turn off their headlights as quickly as possible when turning into a driveway, hoping that the police will drive by them. Id. at 87-88. Citing Johnson, the court upheld the stop because the officer had "a reasonable basis to infer [the driver] was deliberately attempting to evade him and to suspect [the driver] of wrongdoing." Id. at 89.

The parties dispute whether Johnson applies. We conclude that Johnson and Petrick control because the driver had a clear opportunity to see the deputy while making the turn, the vehicle immediately departed from the highway into the driveway, and it returned to the highway within two minutes. Because the deputy reasonably could infer from these facts that the vehicle was attempting to evade him, the deputy had "a particular and objective basis" to make the stop. Johnson, 444 N.W.2d at 827; Berge, 374 N.W.2d at 732. Moreover, the deputy observed this vehicle commit a traffic code infraction when it crossed the center line, thereby providing him with an additional basis to make a stop not present in Johnson.

Respondent attempts to distinguish Johnson on the ground that the deputy never made eye contact with the driver before the vehicle turned into the driveway. To uphold a stop, we have required evidence indicating that the driver engaged in evasive conduct after observing the police. See State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990) (holding no reasonable basis for stop where driver turned out of parking lot and later turned into a gas station while police followed, but no evidence indicated that driver saw the police), review denied (Minn. Dec. 20, 1990); City of St. Paul v. Uber, 450 N.W.2d 623, 627 (Minn. App. 1990) (holding no reasonable grounds for stop after police saw car twice in high prostitution area but observed no evasive conduct by driver), review denied (Minn. Mar. 22, 1990). But the driver in this case had an unmistakable opportunity to observe the deputy as he made the wide turn directly in front of the deputy. See Petrick, 527 N.W.2d at 89 (upholding stop where northbound vehicle passed police vehicle on the side of southbound lane before it quickly turned into a driveway).

Respondent notes that the deputy could not identify who was driving when the vehicle made the initial wide turn and crossed the center line and that the vehicle's occupants exited the vehicle after parking in the driveway. Although respondent may not have been driving when the vehicle first aroused the deputy's suspicion, respondent was driving when the deputy stopped the vehicle and observed indicia of intoxication on respondent. These facts might be important to the question of whether the officer had probable cause to arrest respondent for violating the traffic code by crossing the center line, but the standard for an investigatory stop under these circumstances is an reasonable, articulable suspicion.

Under Johnson and Petrick, the deputy made a reasonable inference that the driver of the vehicle was attempting to elude him due to some wrongdoing. As a result, the deputy articulated "a particular and objective basis" for suspecting the respondent of criminal activity. Therefore, we reverse the trial court's order granting the motions to suppress and to dismiss the charges and remand the case for further proceedings consistent with this decision.

Reversed and remanded.