C5-99-1819

State of Minnesota,

Appellant,

vs.

Dennis Eugene Richardson,

Respondent.

Filed May 16, 2000

Affirmed

Randall, Judge

Dissenting, Foley, Judge^*

Kandiyohi County District Court

File No. T3993906

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

Boyd Beccue, Kandiyohi County Attorney, Daryl MacLean, Assistant County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for appellant)

John M. Stuart, State Public Defender, Mark D. Nyvold, Special Assistant State Public Defender, Suite 1030, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Foley, Judge.

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

RANDALL, Judge

This appeal is from a pretrial order suppressing evidence and dismissing a charge of driving after revocation, in violation of Minn. Stat. § 171.24, subd. 2 (1998). Because we conclude the district court did not unequivocally err in determining the stop was illegal, we affirm.

FACTS

Respondent Dennis Richardson was stopped at about 4:00 p.m. on July 9, 1999, by an Atwater police officer who had received a dispatch stating that the State Patrol had received a report from a motorist that a red Plymouth, license number 031 LXE, was “driving all over the road.”

The officer testified that after hearing the dispatch call he saw a red car, with license number 031 LXE, cross the fog line on the highway, then touch, without crossing, the center line. He pursued the car, made a traffic stop, and issued Richardson a citation for driving after revocation. The officer conceded that crossing a fog line is not a traffic violation. He also testified it would be a violation to cross a center line, but that Richardson had not done so.

The district court granted Richardson’s motion to suppress evidence, concluding that the stop was illegal, because it was based on less than articulable suspicion. The court noted that the stop was based on an anonymous tip, relayed by the State Patrol, with no indication how the anonymous informant acquired the information. The state filed this appeal from the order.

D E C I S I O N

To prevail in a pretrial appeal from an order suppressing evidence in a criminal prosecution, the state must establish clearly and unequivocally that the district court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the proceeding. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

There are two thresholds that the state has to meet. If either one is not met, the district court has to be affirmed. The first threshold is that the error, unless reversed, will have a critical impact on the outcome of the later trial. If the evidentiary ruling in question, minor or not minor, will not have a critical impact (because, for instance, the state has other solid evidence), even if the district court made an error so big you could drive a truck through it, the district court has to be affirmed. The second threshold, our threshold here, is clear and unequivocal error. “Clear and unequivocal” error means more than that an appellate court of review might have done it differently. It means more than the case was close and some district court judges might have gone one way and some the other way. A clear and unequivocal error, by definition, is an error so apparent on its face that reasonable minds under no set of circumstances could differ.

We start with the proposition that a police officer may lawfully stop a vehicle if there is reasonable, articulable suspicion of criminal activity. In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997). While a traffic stop can be based on information supplied by an informant, the informant must be able to provide at least some specific and articulable facts to support a bare allegation of criminal activity. Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985); Marben v. Department of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). The focus is on the details of the informant’s report to the dispatcher or police officer. See State v. Hjelmstad, 535 N.W.2d 663, 665 (Minn. App. 1995) (concluding sufficient basis for stop lacking where record contained no evidence about informant and what led informant to believe defendant was intoxicated).

The informant’s tip here, which was filtered through the State Patrol, provided no details, only the conclusory statement that the driver was “all over the road.” Even if this could be considered an allegation of criminal activity, such as careless driving, it was not supported by any specific facts. There is no evidence the tipster gave his or her name to provide accountability if the information proved false. Cf. City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890-91 (Minn. 1988) (concluding informant’s tip sufficiently reliable to justify stop where informant identified himself as attendant at particular gas station). There is no evidence the tipster gave any information to show the tip was reliable.

The police officer’s observation of Richardson’s driving offered minimal, if any, corroboration of the vague and unsupported anonymous tip. There is no law stating that a single crossing of a fog line constitutes careless or erratic driving. Cf. Holstein v. Commissioner of Pub. Safety, 392 N.W.2d 577, 580 (Minn. App. 1986) (holding drifting toward fog line did not provide articulable suspicion); State v. Dahlheimer, 413 N.W.2d 255, 257 (Minn. App. 1987) (holding crossing of fog line four times, along with “false turning movement,” sufficiently supported stop). Touching a center line is an even more common occurrence in everyday driving. Any driver, including trained drivers, will, if followed on a highway for a few miles, exhibit a certain amount of nominal “wheel drift” within his own lane of travel. Put another way, it is physically impossible to drive a car, even at normal highway speeds, in a perfectly straight line for mile after mile. That is why driving lanes have a few feet allowance on either side of a vehicle. Thus, merely touching a center line once provides little, if any, corroboration to an already generalized tip from an anonymous informant.

Thus, here, the district court was looking at a small group of two or three weak facts, which, taken together, did not significantly strengthen any one of them. We acknowledge that articulable suspicion is a low threshold, but it is not a nonexistent threshold. It is a threshold in a criminal case, and the state has to meet that threshold for a stop, or the stop is illegal. The stop has to be based on something more than idle curiosity, caprice, or whim. See State v. Johnson, 257 N.W.2d 308, 309 (Minn. 1977) (holding stop may not be “the product of mere whim, caprice, or idle curiosity,” but must be based on specific and articulable facts that, “taken together with rational inferences from those facts, reasonably warrant [the] intrusion” (quotations omitted)).

On this record, we could speculate that another district judge might have weighted the facts a little differently and found the stop proper, but that hypothetical case is not our case. On these facts, reviewing the district court’s judgment only for “clear and unequivocal” error, we cannot conclude that the district court made a clear error. Thus, we affirm the district court.

Affirmed.

FOLEY, Judge (dissenting)

I dissent and would reverse the district court’s suppression order because I believe the court clearly erred in applying the law to the undisputed facts in this case. See State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988) (where facts are undisputed, reviewing court conducts independent review to determine whether evidence must be suppressed).

The majority opinion concedes that a traffic stop may be based on an informant’s tip. See Marben v. Department of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). The tip in this case, that appellant’s car was “all over the road,” was amply corroborated by the officer’s own observation that the car crossed the fog line and touched the centerline. The district court’s clear error was in ignoring this corroboration.

A court must look at the “totality of the circumstances,” including evidence corroborating a tip, in determining whether a seizure is justified. Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 554 (Minn. 1985). The district court dismissed the officer’s corroborating observation because it did not “in and of itself” provide a “sufficient basis for the stop.”

Crossing the fog line need not be an offense in itself in order to provide corroboration for a tip. See State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (corroboration of even innocent details of tip may support finding of probable cause); cf. State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (actual traffic violation not needed for stop). Nevertheless, there is authority at least suggesting that it is a traffic offense. This court has held that observing a car drifting toward, but not over, the fog line did provide articulable suspicion, implying that crossing the fog line would have justified the stop. Holstein v. Commissioner of Pub. Safety, 392 N.W.2d 577, 580 (Minn. App. 1986); cf. Minn. Stat. § 169.18, subd. 7(a) (1998) (vehicle “as nearly as practicable” must be driven completely within its lane). Driving over the fog line may endanger pedestrians lawfully walking on the shoulder. See Storvick, 427 N.W.2d at 56 (defendant charged with criminal vehicular operation after hitting pedestrian walking on fog line). The district court clearly erred in ignoring this highly corroborative driving conduct and suppressing the evidence.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.