This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-1835

 

 

State of Minnesota,

Appellant,

 

vs.

 

Todd Robert Joki,

Respondent.

 

 

Filed May 23, 2000

Remanded

Huspeni, Judge^*

 

 

Hennepin County District Court

File No. 98129879

 

 

 

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

 

Steven M. Tallen, Tallen & Baertschi, 4640 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for appellant)

 

Richard Meshbesher, Matthew Edwin Engelking, Meshbesher Law Office, 10285 Yellow Circle Drive, Minnetonka, MN 55343 (for respondent)

 

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

 

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            In this appeal from an order suppressing evidence of intoxication and dismissing charges of operating under the influence, the state argues the trial court erroneously applied the “probable cause” standard, rather than the “reasonable suspicion” standard, in ruling that the stop of the vehicle was illegal.  Because we are unable to determine which standard the trial court applied, we remand.

 

FACTS

            At approximately 1:46 a.m. on December 23, 1998, a police officer patrolling the City of Loretto observed a truck parked in a lot across the street from several bars.  The bars had closed at 1:00 a.m.  The lot was unfenced and on railroad property.  The officer saw that the truck was parked near a large piece of railroad equipment—a front-end loader.  He saw that the truck was running, its lights were on, and it was occupied.  The officer was also aware that there had been vandalism problems in that area in the past, and he turned his car around to investigate.  As he turned, the officer noticed the truck’s headlights turn off and then on again. 

            The officer pulled into the lot behind the truck, turned on his spotlight and his front and rear flashing lights.  He did not activate the overhead emergency lights.  The officer did not recall other cars being parked in the area, although respondent Todd Robert Joki maintained there were at least four other vehicles parked nearby. 

            As the officer pulled up, a person exited the passenger side of the truck and walked toward the squad car, with his hands high in the air, saying, “We’re just talking.  We’re just talking.”  This person seemed intoxicated and told the officer that he and his friend had almost been in a fight at one of the nearby bars.  The driver, Joki, was still in the truck.  He leaned over to the passenger side and told the officer he had identification.  (The parties stipulated for the purposes of the Rasmussen hearing that after the initial contact between the officer and Joki, there was probable cause to arrest respondent Joki.)

Joki was charged with operating a motor vehicle while under the influence of alcohol.   After the Rasmussen hearing, the court found that the officer had “seized” Joki by pulling up behind him and activating his spotlight and flashing lights.^[1]  Subsequently, the parties briefed the question of whether the seizure was constitutionally justified.

In its order, the court stated that the matter was before the court

for purpose of a Rasmussen hearing to determine whether there was probable cause to effectuate a seizure of [Joki’s] vehicle and his subsequent stop and arrest. 

 

* * *  [T]he court concludes the stop in question was made without sufficient articulable grounds to support the constitutionally-defined “seizure” of his vehicle.  The court, therefore, finds no probable cause for the effectuated stop[.]

 

In an accompanying memorandum, the court stated:

[T]he question now before the court is whether that seizure was warranted by probable cause given the facts articulated by the arresting officer. 

 

The court concludes, based on the evidence presented to it, that the stop of [Joki] was not supported by sufficient articulable reasons so as to support a finding of probable cause in this case.  * * * 

 

Although the court has no reason to discount Officer Priem’s reasons to “investigate” a situation he was curious about (the flickering headlights), it finds those articulated reasons for a stop to have been less than constitutionally required for an appropriate “seizure” or “stop.”

 

In so holding, the court wishes to note that it has nothing but respect for Officer Priem’s instincts and actions.  Nonetheless, it finds that given the record before the court it cannot find other than that the State has failed to establish Constitutionally-guaranteed standards for the stop effectuated.

 

The state argues that the trial court applied the wrong standard of review and requests reversal of the order dismissing the charges.  Joki argues that the trial court did apply the proper standard, but if it did not, Joki argues the case should be remanded for application of the proper standard.

 

D E C I S I O N

            In a pretrial appeal, we will reverse the district court’s suppression of evidence only if the state demonstrates clearly and unequivocally that (1) the trial court erred in its judgment and (2) the error will have a critical impact on the outcome of the trial.  State v. Joon Kyu Kim, 398 N.W.2d 544, 547, 551 (Minn. 1987) (stating critical impact is shown where the state’s case is destroyed without suppressed evidence or where absence of evidence significantly reduces likelihood of successful prosecution).  In this case, critical impact is clear because the suppression resulted in a dismissal of the case.  Thus, the sole question before us is whether the state has shown clearly and unequivocally that the trial court erred in its judgment.

            It is well-settled that 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 detectable.  Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80 (1968).

            In determining the validity of an investigatory stop, we examine the totality of the circumstances, giving due regard to an officer’s training and experience in law enforcement.  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)).  An officer may make an investigatory stop of a vehicle if the officer can articulate a particular and objective basis for believing the stopped individual was engaged in criminal activity.  State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (citing Cortez, 449 U.S. at 417-18, 101 S. Ct. 694-95).  The supreme court further explained this standard in State v. Pike.

The 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 919, 921-22 (Minn. 1996) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880).

            The following facts in this case appear to be undisputed:^[2]  The officer (1) saw the vehicle parked, occupied, and running at 1:46 a.m. in an area he knew had experienced vandalism problems; (2) saw the vehicle’s lights flash off and on as he drove by; and (3) saw, as he pulled in and turned on his spotlight and flashing lights, the passenger exit the vehicle and walk toward the squad car with his hands raised. 

            It is impossible to tell whether the trial court applied the proper standard of review.  There are indications in the record supporting either an inference that the probable cause standard was erroneously applied, or that the articulable suspicion standard was correctly applied.  First, the trial court identified the purpose of the Rasmussen hearing to be determination of whether there was probable cause to seize Joki’s vehicle.  Second, the trial court concluded that the stop was made without “sufficient articulable grounds” to support the seizure, and there was “no probable cause for the effectuated stop.”  Third, in its attached memorandum, the trial court cited a case applying the “reasonable suspicion” standard (State v. Sanger, 420 N.W.2d 241 (Minn. App. 1988)), but defined the issue before it as whether the seizure “was warranted by probable cause given the facts articulated by the arresting officer.”  Fourth, the trial court concluded that the stop “was not supported by sufficient articulable reasons so as to support a finding of probable cause in this case.”  Finally, the trial court cited Joki’s brief in support of the suppression motion (which applied the proper “reasonable suspicion” standard) and added that the officer’s “articulated reasons” for the stop—mainly his curiosity about the flickering headlights—were insufficient. 

The state urges that an outright reversal of the trial court is appropriate, because even assuming the trial court applied the proper standard, there was present, as a matter of law, reasonable articulable suspicion supporting the stop.  See Thomeczek v. Commissioner of Pub. Safety, 364 N.W.2d 471, 472 (Minn. 1985) (upholding stop of vehicle parked with lights on and motor running near construction area).

While the invitation of the state is not wholly unreasonable, we decline to accept it.  Arguably, a reviewing court may appropriately reach a conclusion of law, if undisputed facts in the record support that conclusion, that an officer had reasonable, articulable suspicion to validate a stop.  See Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732-33 (Minn. 1985) (concluding, based on uncontradicted testimony of arresting officer, which was credited by the trial court, that stop was justified as a matter of law).  We believe, however, that in this case, the proper action is to remand to the trial court to apply the correct standard clearly to the facts as the trial court finds them to be.^[3]

Minnesota caselaw supports a remand in this case.  In Holstein v. Commissioner of Pub. Safety, 392 N.W.2d 577 (Minn. App. 1986), the trial court erroneously imposed a probable cause standard on the stop of a vehicle.  Id. at 579.  On appeal, the commissioner argued, as does the state here, that this court should find as a matter of law that the stop was justified because of the officer’s reasonable and articulable suspicion.  Id. at 580.  In rejecting the commissioner’s position, the Holstein court observed that “[i]t is normally for the trial court, not the appellate court, to make the finding of whether there was articulable suspicion.”  Id.; see also State v. Pollard, 370 N.W.2d 426, 427 (Minn. App. 1985) (remanding for further findings where record did not show which test was applied); State v. Wellman, 355 N.W.2d 331, 333 (Minn. App. 1984) (remanding for additional findings where trial court had made no fact findings and had applied “probable cause” standard).

We remand to enable the trial court to determine whether the stop of respondent’s vehicle was based upon reasonable and articulable suspicion, and to indicate the facts upon which that determination is made.

Remanded.