This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-971

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jason William Christensen,

Appellant.

 

 

Filed May 3, 2005

Affirmed

Halbrooks, Judge

 

 

McLeod County District Court

File No. K2-03-878

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

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

 

Barry V. Voss, 527 Marquette Avenue, Suite 1050, Minneapolis, MN 55402 (for appellant)

 

 

 

            Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his third-degree DWI conviction, arguing that the police did not have a reasonable, articulable suspicion to make an investigative traffic stop based on a caller’s tip.  We affirm. 

FACTS

            Early in the morning of June 26, 2003, Sergeant Alan Leipold of the McLeod County Sheriff’s Department received a dispatch call, reporting that “someone [had been] driving through a yard at the address of 16639 Oday Avenue,” southeast of Hutchinson.  The dispatch was based on a tip received from Melissa Luthens, the property owner.[1]  Sgt. Leipold testified that the dispatch relayed the following information: “possible [drunk] driver, white Lexus, possible pickup truck, white in color, possibly in route to Hutchinson, no license plates, there are skid marks in the yard, left the [Oday Avenue] residence.”[2]  Sgt. Leipold’s investigation report corroborates this testimony, which states that he “received a call from [the dispatch] that a white Lexus or a pick-up had driven through the yard of 16639 Oday Avenue.”   

            Immediately responding to the call, Sgt. Leipold proceeded south on Highway 22 and approached the intersection of Airport Road and 170th Street—a distance of less than two miles—when he “noticed a vehicle sitting east on 170th with its lights on.”  He observed:

As I proceeded past I noticed the lights of the vehicle.  I then turned around and proceeded back north on Highway 22.  As I turned right or east on 170th, the vehicle’s headlights were turned off.  As I went through the curves and approached the vehicle, within 100 yards I noticed it was a white Lexus.  At that time I activated my emergency grill lights.

 

After activating the emergency lights, Sgt. Leipold approached the vehicle and made contact with the driver, appellant Jason William Christensen.  While conversing with appellant, Sgt. Leipold “could smell the odor of an alcoholic beverage on [appellant’s] breath.”  When asked why he was parked on the side of the road, appellant explained that he and his friend “were talking.” 

Sgt. Leipold testified that his suspicions were raised by a number of factors, including (1) the early morning hour, and the facts that (2) the vehicle was parked, (3) the vehicle’s lights went off when the police car approached, (4) the vehicle matched the description relayed by the dispatcher—that of a white Lexus or pickup truck, and (5) there was little traffic in the vicinity that night.  The officer explained that “[i]t’s very unusual” for a vehicle to be parked at 1:15 in the morning on 170th Street and that “[m]ost vehicles are either moving or parked.”  Sgt. Leipold also testified that he normally does not encounter many Lexuses in his regular patrol area.  On cross-examination, when asked if he noticed any mud or dirt on the Lexus to indicate that it had been driven through a yard, Sgt. Leipold stated that “[i]t seemed to be fairly clean” and that he did not notice any damage to the body of the vehicle.[3]

            In a pretrial motion before the district court, appellant argued that Sgt. Leipold did not have a reasonable, articulable suspicion to stop his vehicle and that all evidence gathered from the stop should be suppressed.  But the court denied appellant’s motion to suppress, finding that the tip received by the police “possesse[d] sufficient indicia of reliability and that the officer had particularized and objective reasons for suspecting [appellant] of criminal activity.”  Waiving his right to a jury trial, appellant was found guilty of third-degree driving while intoxicated in violation of Minn. Stat. §§ 169A.20, subd. 1(5); .26 (2002).  This appeal follows. 

D E C I S I O N

             “[W]hen reviewing a pre-trial order suppressing evidence [or denying suppression] where the facts are not in dispute and the [district] court’s decision is a question of law, the reviewing court may independently review the facts and determine as a matter of law, whether the evidence need be suppressed.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  When the facts are undisputed, an appellate court analyzes the officer’s testimony and “determine[s] whether, as a matter of law, his observations provided an adequate basis for the stop.”  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732-33 (Minn. 1985). 

            We begin by noting that in this case Sgt. Leopold did not stop appellant’s vehicle.  Rather, appellant’s vehicle was already stopped when Sgt. Leopold approached it to investigate.  As we have previously stated, “[i]n the proper performance of his duties, an officer has not only the right but a duty to make a reasonable investigation of vehicles parked along roadways to offer such assistance as might be needed and to inquire into the physical condition of persons in vehicles.”  Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984); see also State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (noting that “courts generally have held that it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car”).

            We also note that Sgt. Leopold’s activation of the squad car’s grill lights prior to getting out and approaching the vehicle did not turn the encounter into a seizure.  State v. Hanson, 504 N.W.2d 219, 219-20 (Minn. 1993).  As the supreme court stated in Hanson:

It may be that 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.  In this case, however, under all the facts, the officer’s conduct would not have communicated to a reasonable person in these physical circumstances that the officer was attempting to seize the person.  A reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help if needed.  A reasonable person in such a situation would not be surprised at the use of the flashing lights.  It was dark out and the cars were on the shoulder of the highway far from any town.  A reasonable person would know that while flashing lights may be used as a show of authority, they also serve other purposes, including warning oncoming motorists in such a situation to be careful.

 

Id. at 220.  The same holds true here.  Thus, Sgt. Leopold’s investigation of appellant’s already-stopped vehicle was reasonable.  But even if he had stopped appellant’s car, Sgt. Leopold had an adequate basis to do so.

            The legality of an investigative stop depends on the stop being based on a reasonable suspicion of criminal activity supported by facts and rational inferences.  Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80 (1968).  Brief investigative stops only require a showing of reasonable suspicion.  Id.at 21-22, 88 S. Ct. at 1880.  Investigatory stops are lawful if the state can prove that the officer had a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quotation omitted).  The stop must be supported by specific and articulable facts from which it can be shown that the officer made rational inferences.  Id.at 921-22. 

            The factual basis for stopping a vehicle need not arise from an officer’s personal observation, but may be supplied by information acquired from a third party.  Marben v. Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).  Traffic stops based on informant tips focus on two factors: (1) the identifying information given by the informant, and (2) the facts that support the informant’s assertion that a driver is engaging in criminal activity.  Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000).  But these factors are not determinative and whether an officer had a reasonable suspicion of criminal activity at the time of the stop is based on the totality of the circumstances.  Id. 

            After highlighting several of Sgt. Leipold’s suspicions, the district court concluded that the call received by police dispatch possessed “sufficient indicia of reliability and that the officer had particularized and objective reasons for suspecting [appellant] of criminal activity.”  The court found that Sgt. Leipold had a reasonable suspicion to believe that appellant was involved in criminal activity when the vehicle (1) matched the description given by the caller, (2) was parked on the side of the road at such an early hour, (3) was less than two miles from the reported property damage, and (4) turned its headlights off when Sgt. Leipold approached it. 

            Considering the totality of circumstances, Sgt. Leipold had a reasonable basis for stopping appellant’s vehicle.  In this type of citizen-informant case, courts begin with the presumption that citizen informants are reliable.  Marben, 294 N.W.2d at 699.  That presumption is clearly supported by this record.  The caller, Melissa Luthens, identified herself to the dispatcher and provided information that appellant’s vehicle—as a white Lexus or pickup truck, possibly en route to Hutchinson—had driven through her yard.  See City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890 (Minn. 1988) (tip reliable when informant identified himself and circumstances allowed inference that he had personally observed driver).  But an informant’s information must also include some specific and articulable facts that support an allegation of criminal activity beyond a bare assertion or mere opinion.  Rose v. Comm’r of Pub. Safety, 637 N.W.2d 326, 329 (Minn. App. 2001), review denied (Minn. Mar. 19, 2002).  While Luthens did not testify at the pretrial hearing, and according to the criminal complaint referred only to “a possible drunk driver,” she also reported “damage to [her] property by a white vehicle driving through [her] yard . . . .”  The property damage provides the minimal specific and articulable facts necessary to support an allegation of criminal activity.  Contra id. at 329‑30 (holding that officer did not have an articulable basis when record did not support inference that informant personally observed defendant). 

A recent decision of this court provides further support for this conclusion.  In Yoraway v. Comm’r of Pub. Safety, 669 N.W.2d 622 (Minn. App. 2003), a private citizen identified himself to the local dispatcher and reported a motorist driving recklessly.  Id.at 624.  A police officer responded to the dispatch and made an investigative stop of the vehicle although he “did not personally see [the defendant] violate any laws before the stop.”  Id.at 625.  We emphasized that the ultimate reliability of an informant’s tip depends “not only on the identification of the informant but also on the nature of the information he or she gives.”  In Yoraway,

the citizen described not only the specific suspicious driving but also the make, model, and color of the car; the approximate age and gender of the driver and the gender of the passenger; the location of the car when the traffic infractions occurred; and the direction in which and specific streets on which the car was traveling.

 

Id.at 626-27.  While the description here was not as precise, it still provided “a modicum of specificity as to why the informant believe[d] the driver [was] driving illegally.”  Id.at 627.  By driving through the informant’s yard, appellant engaged in reckless driving and “indicate[d] either a willful or a wanton disregard for the safety of persons or property.”  Minn. Stat. § 169.13, subd. 1 (2004).  As we explained in Yoraway, “[t]he law does not require an informant . . . to reach and articulate an ultimate conclusion as to the reason for the illegal driving before a stop may be made.  The law requires only that there be objective, factually specific conduct that reasonably raises a suspicion of illegality.”  669 N.W.2d at 627.  That threshold has been met here. 

Sgt. Leipold’s own observations and the totality of the circumstances also provide an adequate basis for the stop.  First, Sgt. Leipold “noticed a vehicle sitting east on 170th with its lights on,” less than two miles from the Luthens’ property.  Second, the vehicle sitting on the side of the road matched the description offered by the caller as a white Lexus, a vehicle not commonly found in the area.  Third, Sgt. Leipold found it suspicious that the vehicle first had its lights illuminated on the side of the road but then were turned off when he approached.  Finally, Sgt. Leipold explained that very few cars were on the road at that early morning hour.  We recognize that police officers are permitted to make inferences based on their special training and experience.  State v. Harris, 590 N.W.2d 90, 99 (Minn. 1999).  Taken together, Sgt. Leipold’s observations illustrate 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[ed] [an] intrusion.’”  Pike, 551 N.W.2d at 921-22 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880)). 

            Affirmed.