This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-435

 

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Alan Galatowitsch,

Appellant.

 

 

Filed August 13, 2002

Affirmed

Anderson, Judge

 

McLeod County District Court

File No. K0-01-812

 

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

 

Michael K. Junge, McLeod County Attorney, 830 11th Street East, Suite 112, Glencoe, MN  55336 (for respondent)

 

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

 

            Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            Appellant Michael Galatowitsch was arrested and charged with first-degree driving while impaired.  He moved to suppress the results of a preliminary breath test and a chemical test, claiming that the tests were obtained in violation of his constitutional right to be free from unreasonable searches and seizures.  Because we conclude the district court did not err by denying appellant’s motion to suppress, we affirm. 

FACTS

            In the early morning hours of May 25, 2001, a McLeod County sheriff’s deputy was traveling on Highway 212 when he observed two vehicles moving towards him at a high rate of speed.  His radar unit reported readings of over 70 miles per hour for each vehicle, although the speed limit was 65 miles per hour.  The deputy sheriff reversed direction and began to follow the vehicles; he observed them “playing cat and mouse,” or chasing and passing each other frequently. 

            The deputy sheriff initially identified one vehicle as a small white car and the second vehicle as a green Pontiac Grand Am.  He stopped the green Grand Am near the intersection of Highway 212 and Morningside, and, as he was doing so, observed the small white vehicle pull into a nearby Mobil station.  The deputy sheriff radioed the Glencoe police and requested that an officer stop the small white vehicle; the deputy sheriff also told a Glencoe officer that he had observed the small white vehicle leave the Mobil station and head west on Highway 212 towards Chandler Avenue.  The driver of the Grand Am told the deputy sheriff that her husband was driving the small white car. 

            A Glencoe police officer observed the small white vehicle proceeding west on Highway 212 and followed it.  After closing on the vehicle and determining the vehicle met the deputy sheriff’s description, the officer stopped the vehicle within two miles of where the deputy sheriff had stopped the green Grand Am.  There were no other vehicles in the same lane of traffic as the small white vehicle.  The Glencoe officer testified that he observed no improper driving, but stopped the car based purely upon the deputy sheriff’s call.

            A routine check of appellant’s driving privileges revealed that appellant held a “B card” license, which meant that appellant could not consume alcohol at any time.  The Glencoe officer also determined that appellant was the husband of the driver of the green Grand Am because of information supplied by the deputy sheriff. 

The Glencoe officer returned to the white car and asked appellant to leave the vehicle.  The officer testified that he “wanted to detain [appellant] long enough to have contact with [the deputy sheriff] because [he] hadn’t observed the earlier activity, the driving activity.” 

            After appellant was outside the vehicle, the officer detected an odor of alcohol.  He then observed appellant stagger and fall against the trunk of his car.  At that point, the officer, with the assistance of another Glencoe police officer, performed a preliminary breath test (PBT) on appellant.  The PBT indicated an alcohol concentration of .14.  The officer then arrested appellant, towed his vehicle, took him to the law-enforcement center, and read appellant the implied-consent advisory.  Appellant agreed to a chemical test; the result of that testing was a reported alcohol concentration of .15. 

            Appellant was charged with first-degree driving while impaired under Minn. Stat. §§ 169A.20, subd. 1(5), 169A.25 (2000); appellant sought to suppress the results of the PBT and the subsequent chemical test.  The district court denied appellant’s motion, and appellant entered a Lothenbach stipulation.  The district court convicted appellant of the driving-while-impaired charge and stayed appellant’s sentence.  This appeal followed. 

D E C I S I O N

When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence.

 

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).  In reviewing a district court’s determination of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). 

At oral argument, appellant conceded the reasonableness of the stop.  Appellant claims that once the officer completed a routine driver’s-license check, there was no other reason to detain appellant, and any further seizure of appellant after the officer’s driver’s-license check was unreasonable.  Therefore, appellant argues there was no basis for the extended scope of the investigatory stop, but he has conceded that the duration of the stop did not exceed the period permitted by the state and federal constitutions. 

            “A brief investigatory stop requires only reasonable suspicion of criminal activity, rather than probable cause.”  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968)).  We have held that a continued investigatory stop of a vehicle is lawful where the officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”  State v. Haataja, 611 N.W.2d 353, 354 (Minn. App. 2000) (quotation omitted), review denied (Minn. July 25, 2000).  “The factual basis required to support a stop is minimal, and an actual violation is not necessary.”  Id. (quotation omitted). 

            Here, appellant concedes that the Glencoe officer’s stop was justified because it was based on the deputy sheriff’s observations of two cars playing “cat and mouse.”  The factual basis for a stop may arise from information supplied by another person or peace officer and does not necessarily need to be based on an officer’s personal observations.  State v. Warren, 404 N.W.2d 895, 896 (Minn. App. 1987).  Because the deputy sheriff witnessed appellant’s vehicle allegedly speeding and allegedly committing other traffic violations, and because the Glencoe officer was relying on that information, the officer’s stop was based on articulable, reasonable suspicion. 

            Appellant argues that the stop was unconstitutional because of its extended scope.  “Neither the cases of the United States Supreme Court nor of this [state] have imposed a rigid time limitation on the duration of [investigative] stops.”  State v. Bell, 557 N.W.2d 603, 606 (Minn. App. 1996) (quotation omitted) (alterations in original), review denied (Minn. Mar. 18, 1997).  “The scope of a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the investigation permissible.”  State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (quotation omitted).  An officer may continue the detention “as long as the reasonable suspicion for the detention remains * * * provided they act diligently and reasonably.”  Id.  (quotation omitted) (ellipsis in original). 

The scope of an investigative detention is limited to the 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).  The primary concern is “whether the police diligently pursued a means of investigation likely to confirm or dispel their suspicions quickly.”  Id. at 344 (citation omitted). 

            Once the Glencoe officer stopped appellant’s vehicle, the record indicates that he acted diligently and reasonably.  He checked appellant’s driver’s license and then asked appellant to leave his vehicle to wait for the deputy sheriff to arrive because the deputy sheriff witnessed the “cat and mouse” game between the cars.  There is no doubt that the Glencoe officer did not violate appellant’s constitutional rights when he asked appellant to leave the vehicle.  See State v. Gilchrist, 299 N.W.2d 913, 916 (Minn. 1980) (once officer stops vehicle, officer may, for his safety, order vehicle’s occupants to leave vehicle).  Furthermore, the officer was concerned about the real danger posed by the “cat and mouse” game, and, given that behavior, the officer had sufficient grounds to be concerned about appellant’s possible further danger to public or officer safety. 

            Although appellant argues otherwise, the record demonstrates that the officer was not merely trying to find a reason to arrest appellant.  Although the officer had seen appellant’s “B card” restriction, he testified that he did not have any reason to believe appellant was drinking until he smelled the odor of alcohol after appellant left his vehicle.  The officer only sought to detain appellant long enough to permit the deputy sheriff to finish his stop of the Grand Am.  This detention was reasonably necessary considering the basis for the stop.  State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (“The general rule is that the detention of the person stopped may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop.” (citation omitted)).

            The scope of the stop did not exceed constitutional limits.  The officer’s observations were within the confines of the lawful duration of the stop, and therefore the officer was justified in administering a PBT once he detected the odor of alcohol and appellant’s balance difficulties.  We conclude that the district court did not err by holding that the basis for the officer’s stop was justified and that the duration of the stop was within constitutional limits. 

            Affirmed.