may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dale Kenneth Gangl,
Filed November 17, 1998
Affirmed in part, reversed in part, and remanded
Stearns County District Court
File No. T59i77233
Jan F. Petersen, St. Cloud City Attorney, Sandra M. Schrader, Assistant City Attorney, 400 Second Street South, St. Cloud, MN 56301 (for respondent)
Michael L. Samuelson, 925 South First Street, Post Office Box 1735, St. Cloud, MN 56302-1735 (for appellant)
Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.
Appellant Dale Kenneth Gangl challenges his conviction for driving under the influence arguing that his Fourth Amendments rights were violated, his Sixth Amendment rights were violated, the state failed to comply "sufficiently" with the recording requirement of State v. Scales, 518 N.W.2d 587 (Minn. 1994), and the trial court erred in convicting him of multiple offenses arising out of a single behavioral incident. We affirm in part, reverse in part, and remand.
On June 15, 1997, Officer Wendell Daluge responded to a citizen's complaint received by dispatch concerning an intoxicated driver. According to the citizen informant, an intoxicated Gangl left Shooter's bar, got into his vehicle, and drove away. The citizen followed Gangl and called the police on her cellular phone. The citizen reported that she was headed towards 33rd and Second Street following a blue Cadillac. She gave dispatch the license plate number on the Cadillac and a brief description of her vehicle. She also reported that she observed the Cadillac swerve across the centerline and nearly hit a street sign.
As soon as Daluge received the dispatch he proceeded South on 33rd. He observed the blue Cadillac being followed by the citizen's vehicle, which he recognized from the citizen's descriptions. While following the two vehicles, Daluge was informed by dispatch that it was still in contact with the citizen who could see Daluge in her rear-view mirror. When all three vehicles came to a stop at a red light, Daluge was able to confirm that the license plate number on the Cadillac was the same number reported by the citizen. The citizen's identity was never obtained.
At this point Daluge activated his lights and stopped Gangl's vehicle. After determining that Gangl was intoxicated, Daluge placed him in the back of the squad car and read him the Implied Consent Advisory. Gangl was then transported to the Law Enforcement Center where he was read his Miranda rights. Daluge placed a tape recorder on the center of the table and proceeded to interrogate Gangl.
Gangl was charged with three counts of misdemeanor driving while under the influence in violation of Minn. Stat. § 169.121, subd. (1)(a), (d), and (e) (1996). At the omnibus hearing, Gangl moved to dismiss the complaint on the grounds that the evidence violated his Fourth Amendment rights, his Sixth Amendment rights, and the Scales recording requirement. Gangl's motions were denied. Gangl then agreed to submit his case to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Gangl was convicted on all three counts and sentenced to 90 days in jail and a $700 fine. Gangl appeals.
1. When reviewing pretrial orders concerning suppression issues where the facts are not in dispute, this court may independently review the facts and determine, as a matter of law, whether the police action was justified. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
Officers may not search or seize an individual without an arrest warrant, search warrant, or probable cause. Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988). The federal courts have, however, made exceptions to this rule. One such exception allows officers, under certain circumstances, to stop or seize an individual "for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Id. (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968)).
There is no dispute that Gangl was seized for Fourth Amendment purposes. Daluge activated his lights and pulled over Gangl's car. See State v. Hanson, 504 N.W.2d 219, 220 (Minn.1993) (arguing "in many fact situations the officer's use of the flashing lights likely would signal to a reasonable person that the officer is attempting to seize the person for investigative purposes"); State v. Day, 461 N.W.2d 404, 406 (Minn. App. 1990) (holding seizure occurs when officer stops automobile), review denied (Minn. Dec. 20, 1990).
The focus of this appeal is whether Daluge had reasonable articulable suspicion to suspect Gangl of criminal activity based on an anonymous informant's tip. When stopping an automobile, the factual basis can arise from information supplied by another person and does not necessarily need to come from the officer's personal observations. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). A caller, however, must be able to provide at least some specific and articulable facts to support the bare allegation of criminal activity or else the stop will be held unlawful. Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985) (holding state lacked reasonable articulable suspicion to stop Olson when there was not even "minimal specific and articulable facts from the anonymous caller" to support assertion of "possibly" drunk driver). Factors that also enhance the reliability of the caller's information are face-to-face encounters between a tipster and an officer, the tipster's proximity to the suspect's car, and the officer's ability to verify that the tipster is in the area. State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986); Marben, 294 N.W.2d at 699.
In this case, the dispatcher spoke with the citizen and then relayed the information to Daluge. In this type of situation, the lawfulness of the stop depends on whether the dispatcher "was in possession of specific and articulable facts supporting a reasonable suspicion that there was a drunk driver on the road." Olson, 371 N.W.2d at 555. The focus is on the dispatcher's conversation with the citizen, rather than the officer's corroboration of the information. State v. Hjelmstad, 535 N.W.2d 663, 665 (Minn. App. 1995).
Because the tip came from a citizen, reliability is presumed. State v. Warren, 404 N.W.2d 895, 896 (Minn. App. 1987). Unlike Olson, here the citizen did not report a "possibly" drunk driver, she reported that Gangl was intoxicated. She reported the make, model, and direction of Gangl's vehicle. Her assertion that Gangl was intoxicated was not based on a whim because she observed Gangl in Shooters Bar before he got into his vehicle and she observed Gangl's vehicle weave from side to side almost hitting a street sign. The citizen's credibility is bolstered because she confirmed that she saw Daluge behind her, and Daluge confirmed that he saw the citizen's vehicle. Sufficient facts were articulated to establish a lawful basis for the stop.
2. Gangl argues that the statements made by the citizen informant, as relayed by Daluge at the evidentiary hearing, should be suppressed because the statements are hearsay and allowing the statements violates his Sixth Amendment right to confrontation. According to the trial court, the witness against Gangl was Daluge and because Daluge was subject to cross-examination and available to testify as to his basis for the stop, Gangl's rights were vindicated.
We review questions concerning the admissibility of evidence under an abuse of discretion standard. State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985). Generally, hearsay is inadmissible unless it falls within one of the exceptions. Minn. R. Evid. 802. Hearsay is defined as
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Minn. R. Evid. 801(c) (emphasis added). The testimony of Daluge at the evidentiary hearing was offered to establish that his information and observations provided a legally sufficient basis to stop Gangl, not for the truth of the matter asserted. Furthermore, Gangl was afforded the opportunity to question and cross-examine Daluge and his reasons for the stop. Gangl's Sixth Amendment right to confrontation was not violated. The trial court did not abuse its discretion.
3. Gangl also argues that his statements should have been suppressed because Daluge violated the recording requirement of State v. Scales, 518 N.W.2d 587 (Minn. 1994). Whether a substantial Scales violation has occurred is a question that this court reviews de novo. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).
Scales requires that all custodial interrogations be recorded. 518 N.W.2d at 592. Statements will be suppressed, however, only if the Scales violation is deemed substantial. Critt, 554 N.W.2d at 95-96. In Critt, this court found that a "gap" in the recording of defendant's statement did not violate the Scales requirement because it did not significantly deprive the trial court of an accurate record and the "gap" in the tape was not done intentionally. Id.; see also, State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995) (holding defendant's confession admissible even though officers failed to record entire conversation).
In this case, parts of Gangl's statement are unintelligible. Nevertheless, a transcript of the audible portions of the tape was submitted to the trial court. More importantly, Gangl does not dispute what is contained in the transcript. Gangl simply argues that portions of the tape are inaudible. The problems with the recording in no way contradict the trial court's findings. Gangl does not argue that the unintelligible parts of the recording were in any way relevant. Furthermore, no evidence suggests that this was done intentionally. Based on these facts, no Scales violation occurred.
4. Gangl argues that the trial court erred in convicting him of violating Minn. Stat. § 169.121, subd. 1(a), (d), and (e) (1996) and sentencing him to 90 days in jail. Even though Gangl did not object to his conviction and sentence at the time of sentencing, this does not mean the issue is waived. Ture v. State, 353 N.W.2d 518, 523 (Minn. 1984). We re-evaluate a sentence if the trial court has abused its discretion and the sentence violates the law of this state. State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980).
Minn. Stat. § 609.04, subd. 1 (1996), provides that a defendant "may be convicted of either the crime charged or an included offense, but not both." The statute bars multiple convictions under different sections of a criminal statute for acts committed during a single behavioral incident. State v. Folley, 438 N.W.2d 372, 373 (Minn. 1989) (interpreting Minn. Stat. § 609.04 as prohibiting defendant's conviction of different sections of a statute or different subsections on the basis that defendant's acts were part of single behavioral incident).
In this case the trial court convicted Gangl of violating Minn. Stat. § 169.121, subd. 1(a), (d), and (e) (1996). All three violations arose out of the same behavioral incident. Because subdivisions (1)(a), (d), and (e) are all different subsections of the same statute and because the separate charges arose out of a single behavioral incident, two of the convictions must be vacated. Accordingly, we remand to the trial court for vacation of two of the convictions as the court may determine and resentencing, if necessary.
Affirmed in part, reversed in part, and remanded.