CX-99-1735

State of Minnesota,

Appellant,

vs.

Daryl Lee Buckentine,

Respondent.

Filed May 9, 2000

Reversed

Willis, Judge

Carver County District Court

File No. K299797

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Michael A. Fahey, Carver County Attorney, 600 East Fourth Street, Chaska, MN 55318 (for appellant)

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for respondent)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

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

WILLIS, Judge

The state appeals a pretrial order dismissing charges of driving after cancellation, gross misdemeanor test refusal, driving while intoxicated, and possession of an open bottle of intoxicating liquor in a motor vehicle. The district court concluded that the police officer’s two-month-old information that respondent’s driver’s license had been cancelled was an insufficient basis for the stop. We reverse.

FACTS

On May 8, 1999, Carver County Sheriff’s Deputy Patrick Murphy was on patrol in Victoria. Deputy Murphy was driving southbound on Quamoclit when he saw respondent Daryl Lee Buckentine driving northbound. Deputy Murphy immediately recognized Buckentine because he had known him since childhood. Deputy Murphy testified that although he observed no violations by Buckentine, he knew that Buckentine was driving with a cancelled driver’s license because of prior “dealings with him” and because Deputy Murphy had run a driver’s license check on Buckentine sometime in the two months prior to May 8, 1999.

As Buckentine pulled into a parking lot across the street from Schmitty’s Bar, Deputy Murphy made a U-turn and parked his squad car approximately 15 feet behind Buckentine’s car. Deputy Murphy summoned Buckentine to his squad car to answer questions about the status of his license. Deputy Murphy testified that Buckentine “staggered or swayed a little bit” as Buckentine walked toward him. Deputy Murphy also testified that Buckentine smelled of alcohol and had bloodshot, watery eyes.

Deputy Murphy asked Buckentine if he had a valid driver’s license, and Buckentine responded that his license had been valid for the past six months. As Deputy Murphy turned toward his squad car to determine the status of Buckentine’s license, Buckentine became agitated and started walking away, telling Deputy Murphy that he had no reason to stop him. Deputy Murphy testified that, to prevent Buckentine from fleeing and for his and Buckentine’s safety, he handcuffed Buckentine and placed him in the back seat of his squad car. Deputy Murphy then confirmed that Buckentine’s driver’s license was cancelled as inimical to public safety and placed him under arrest.

Before leaving for the jail, Deputy Murphy asked Buckentine to submit to a preliminary breath test. Buckentine refused but admitted to consuming one beer. At the jail, Deputy Murphy again asked Buckentine to submit to a preliminary breath test, and Buckentine again refused. Deputy Murphy told Buckentine that he was also being arrested for driving while intoxicated.

Buckentine was charged with driving after cancellation as inimical to public safety, in violation of Minn. Stat. § 171.24, subd. 5 (1998); gross misdemeanor refusal to test, in violation of Minn. Stat. § 169.121, subd. 1a, 3(c)(2) (1998); driving while intoxicated, in violation of Minn. Stat. § 169.121, subd. 1(a), 3(c)(2), and 3d(b) (1998); and possession of an open bottle containing intoxicating liquor in a motor vehicle, in violation of Minn. Stat. § 169.122, subd. 1 (1998).

In May 1999, Buckentine moved the court to dismiss the complaint on the ground that Deputy Murphy did not have a reasonable, articulable suspicion of a motor vehicle violation or of criminal activity to support the stop. After a pretrial hearing, the district court found that the investigatory stop and seizure of Buckentine was unlawful and dismissed all four counts of the complaint with prejudice, rescinding Buckentine’s license revocation. The state appeals.^[1]

D E C I S I O N

I. Validity of the Investigatory Stop and Seizure

In a pretrial appeal, this court will reverse the suppression of evidence by the district court “only if the state demonstrates clearly and unequivocally, first, that the trial court erred in its judgment, and, second, that unless reversed, the error will have a critical impact on the outcome of the trial.” State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987) (citation omitted). Critical impact is shown in cases where the state’s case is destroyed without the suppressed evidence or where the absence of the “suppressed evidence significantly reduces the likelihood of a successful prosecution.” Id. at 551. Here, the suppression resulted in a dismissal and, therefore, had a critical impact on the state’s case.

A. Reasonable Articulable Suspicion

Both the United States and Minnesota Constitutions protect citizens from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A police officer may make an investigatory stop of a motor vehicle if the officer has “‘specific and articulable facts’ establishing ‘reasonable suspicion’ of a motor vehicle violation or criminal activity.” State v. Duesterhoeft, 311 N.W.2d 866, 867 (Minn. 1981) (citation omitted). An investigatory stop does not require probable cause and an actual violation need not be observed. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968); State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). In Pike, the Minnesota Supreme Court stated that

[t]he police 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.’

551 N.W.2d at 921-22 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880).

A district court’s determination of reasonable suspicion as it relates to a Terry stop is subject to de novo review. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). Here, the district court relied on the Minnesota Supreme Court’s decision in Duesterhoeft to conclude that the stop was unlawful. In Duesterhoeft, a police officer stopped the defendant’s vehicle based on month-old information that the defendant’s driver’s license was suspended. 311 N.W.2d at 866-67. The officer was unable to recheck the status of the defendant’s license because his computer was not working. Id. at 867. Based on the officer’s month-old information and on his suspicion that Duesterhoeft was the person driving the truck, he stopped the defendant’s vehicle. Id. The supreme court concluded that

[t]he stop was not the product of whim or caprice or desire on the part of the officer to harass defendant. Rather, the officer believed that defendant’s license was still under revocation and he reasonably suspected that defendant was the person driving the truck. The officer clearly did not have probable cause but we believe he did have reasonable suspicion based on the earlier license check. It would have been better if the officer had been able to recheck before making the stop, but the computer was apparently broken. Under the circumstances and bearing in mind that we are not dealing with an arrest or a search, only a stop, we conclude that the officer’s actions did not violate the Fourth Amendment.

Id. at 868.

The district court distinguished this case from Duesterhoeft and concluded that, because Deputy Murphy could have run an additional license check before stopping Buckentine but chose not to, the stop was unconstitutional. In its memorandum, the district court stated that because Deputy Murphy did not employ the “least intrusive means” to investigate his suspicion, the stop did not “satisfy the constitutional conditions of an investigatory seizure.” The district court cited Florida v. Royer for the proposition that “the investigative methods employed [during a Terry stop] should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26 (1983). But the Royer plurality opinion has been called into question by later Supreme Court opinions. The majority opinion in United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568 (1985), states that

[a] creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, itself, render the search unreasonable.” * * * The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.

Sharpe, 470 U.S. at 686-87, 105 S. Ct. at 1575-76 (citations omitted). As a noted commentator has written, the least-intrusive-means principle “is nowhere quoted by the Sharpe majority, which perhaps casts some doubt upon its continued vitality.” Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.2(f) at 73 (3rd ed. 1996). The Supreme Court’s later decision in United States v. Sokolow makes clear that the least-intrusive-means language in Royer “was directed at the length of the investigative stop, not at whether the police had a less intrusive means to verify their suspicions before stopping Royer.” United States v. Sokolow, 490 U.S. 1, 11, 109 S. Ct. 1581, 1587 (1989).

Moreover, Minnesota case law suggests that an officer need not run a license check before stopping a person on suspicion of driving after suspension or revocation where the officer has a good-faith belief that the driver’s license is invalid. In City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365 (1975), two police officers stopped Dennis Vaughn, mistakenly believing him to be his brother, Frederick Vaughn, who they knew, “on the basis of information a month or more old, to be under a driver’s license suspension.” Id. at 339, 237 N.W.2d at 367. One of the officers testified that he had personally run a license check on Frederick Vaughn approximately one month before this incident. Id. at 342, 237 N.W.2d at 368. The other officer testified that he had personal knowledge of Frederick Vaughn’s suspension but the knowledge dated back three to five months. Id. The Minnesota Supreme Court noted that a driver’s license may be suspended or revoked for a period of 30 days to more than 6 months. Id. The court held that “[g]iven those periods of suspension or revocation, and absent any knowledge on the part of [the officers] that Vaughn’s license had been reinstated, the stop here is not unreasonable under the standard set forth in Terry v. Ohio.” Vaughn, 306 Minn. at 342, 237 N.W.2d at 368-69. The court added that “[d]etermining the identity of a person observed for only a few moments * * * and determining whether his license was currently suspended, certainly seems to be a legitimate purpose of investigative stops.” Id. at 343, 237 N.W.2d at 369. Notably, the court did not discuss the fact that the officers did not verify their suspicion by performing an additional license check before stopping Vaughn.

Under Vaughn and Duesterhoeft, an officer’s good-faith belief that a person’s license is invalid, based on the officer’s prior knowledge, gives rise to a reasonable, articulable suspicion justifying a stop. Here, Deputy Murphy had a reasonable, articulable suspicion that Buckentine was driving with an invalid license, based on information a month or more old, and Deputy Murphy was not required to reverify the status of Buckentine’s license, although it would have been preferable for him to have done so.

B. Scope of the Terry Investigative Detention

Buckentine also argues that the stop was unconstitutional because it exceeded the scope and duration of a lawful Terry stop. The scope of a Terry investigative detention is limited to that time necessary for police officers to confirm or allay their suspicions, after which the suspect must be released unless there is probable cause to arrest. State v. McKissic, 415 N.W.2d 341, 345 (Minn. App. 1987). Although Terry allows temporary restraint based on reasonable suspicion, an individual cannot be arrested in the absence of probable cause. Id.

The fact that the investigatory stop here resulted in Buckentine being handcuffed and placed in the back seat of the squad car before Deputy Murphy ran a license check does not constitute an unlawful arrest. An officer is entitled to “freeze the situation” during an investigatory stop. State v. Moffatt, 450 N.W.2d 116, 119 (Minn. 1990) (quoting Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 109 (Minn. 1987)); State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986) (stating that requiring a suspect to sit in a police car for a short time does not take the situation beyond the realm of an ordinary traffic stop). Here, Buckentine became upset and started to walk away during the investigatory stop. Deputy Murphy restrained Buckentine, not to arrest him, but to verify the status of his license. Under the circumstances, the restraint was reasonable.

Even if handcuffing Buckentine and requiring him to sit in the back of the squad car before verifying the status of his driver’s license constituted an unlawful arrest, no suppressible evidence flowed from this additional detention. The evidence of intoxication and the evidence of driving after cancellation were discovered as a result of the stop, not from the additional restraint.

Respondent’s brief includes a request for attorney fees. But because Minn. R. Civ. App. P. 139.06 requires that a request for attorney fees be made by separate motion, we deny respondent’s request at this time.

Reversed.

^[1] The state has not appealed from the order rescinding Buckentine’s license revocation.