This opinion will be unpublished and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

A04-1534

 

 

State of Minnesota,

Respondent,

 

vs.

 

John Edwards Roles,

Appellant.

 

 

Filed June 28, 2005

Affirmed
Forsberg, Judge*

 

Yellow Medicine County District Court

File No. K4-03-464

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Thomas G. Kramer, Yellow Medicine County Attorney, Amanda C. Sieling, Assistant County Attorney, 132 Eighth Avenue, Box 128, Granite Falls, MN 56241 (for respondent)

 

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

Appellant challenges his conviction of tampering with a motor vehicle and driving after cancellation, arguing that the evidence should have been suppressed because the stop was illegal.  Because the deputy who stopped appellant had a reasonable, articulable suspicion of criminal activity, we affirm. 

FACTS

            An informant called 911 from her rural-area home at 4:17 a.m. on October 25, 2003,  to report hearing shotgun fire and seeing spotlights just west of  the intersection of 470th Street (north-south) and 185th Avenue (east-west).  The dispatcher called a deputy, who drove from his home to the area and arrived at about 4:30 a.m.  No car was at or near the intersection. The informant called back at 4:38 a.m. to report that a vehicle that looked like an SUV with a spotlight on it had driven south from just west of the intersection on a field road, then turned east.  The deputy, in search of the vehicle, drove west on 185th. 

            The deputy saw lights coming toward him from a vehicle driving east.  When that vehicle passed, the deputy saw that it was a pickup truck with a topper and without a spotlight.  The deputy pulled the pickup over at 4:40 a.m.  When he asked for the driver’s identification, he noticed a gun case on the passenger seat and detected alcohol in the pickup.  The driver was appellant John Roles; a check of his record showed that his license was cancelled.  When the matter was reported, the owner of the pickup said appellant did not have permission to drive the pickup. 

            Appellant was charged with unauthorized use of a vehicle (later amended to tampering with a vehicle) and with driving after cancellation.  He moved to suppress the evidence on the ground that the stop was illegal; his motion was denied after an omnibus hearing.  Appellant waived his right to a jury trial.  The matter was submitted as a Lothenbach proceeding and decided on the findings from the omnibus hearing and the recording of the 911 call.  Appellant was found guilty and sentenced to a year in jail, with 335 days stayed, and a fine of $3,000, with $2,500 stayed.

            Appellant challenges his conviction on the ground that the stop was illegal, arguing that the deputy did not have a reasonable, articulable suspicion of criminal activity.

D E C I S I O N

            “In reviewing a district court’s determinations of the legality of a limited investigatory stop, we review questions of reasonable suspicion de novo.  In doing so, we review findings of fact for clear error, giving due weight to the inferences drawn from those facts by the district court.”  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (quotation and citation omitted). 

            Police officers may make limited investigative stops if they can “articulate objective and specific facts that led them, during the course of their investigation, to reasonably suspect the particular person stopped was engaging in criminal activity.”  Schuster v. Comm'r of Pub. Safety, 622 N.W.2d 844, 846 (Minn. App. 2001) (citation omitted).  The police must 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.”  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quotation omitted). 

            The first source of the deputy’s suspicion was the informant’s 911 call.  An informant who is a private citizen making a report is presumed to be reliable.  Marben v. State, Dept. of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).  The informant here was a private citizen making her first report, and the officer was entitled to rely on that report.

            Other factors to consider in assessing the legality of a stop near a crime scene include:

(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender's flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

           

 Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (citation omitted); see also Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988) (noting that same factors “among others” may be considered).  While the fifth and sixth factors have no application here, a consideration of the first four factors supports the legality of the stop:

            1.         The informant described the vehicle as an SUV; appellant actually drove a pickup with a topper.  The deputy testified that, at 4:40 a.m., at “a half a mile away or a quarter of a mile away it’s going to look the same.” 

            2.         Appellant was stopped within 25 minutes of the informant’s first call and within a quarter of a mile of the reported criminal activity.

            3.         Appellant was the only person about in the area; there was no other traffic.  When the number of persons in an area is very small, an investigatory stop may be made without any description.  See, e.g., Applegate, 402 N.W.2d at 108-09 (when there was little traffic in area, officer properly stopped, without description, pickup truck that was observed coming from area of criminal activity within minutes after report).

            4.         Appellant was seen leaving 185th Avenue, an east-west gravel road, to drive south, possibly on a field road, and then to turn east, at which point the informant lost sight of him.  Appellant was next seen back on 185th, approaching from the west.  The deputy testified that appellant could have turned his headlights off at some point while on the field road and moved without being seen.  Police may consider all the circumstances and may draw inferences that would elude persons untrained in law enforcement.  State v. Dalos, 635 N.W.2d 94, 96 (Minn. App. 2001).  The deputy’s inferences that the only vehicle visible for a mile in any direction was the same vehicle the informant had seen and that appellant could have turned and driven a short distance west with his headlights off as an evasive maneuver were reasonable.

            Moreover, an attempt to evade police provides a basis for a legal stop.  See, e.g., State v. Petrick, 527 N.W.2d 87, 89 (Minn. 1995) (stop upheld where officer “had a reasonable basis to infer [the suspect] was deliberately attempting to evade him”); State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (stop upheld where defendant’s behavior “reasonably caused the officer to suspect that defendant was deliberately trying to evade him”).  Appellant attempts to distinguish Petrick and Johnson, arguing that he made “no repeated efforts to avoid police contact; [he] did not try to evade the officer at all.”  Even if this is true, those cases do not hold that an attempt to evade is required for a legal stop. 

            We conclude that the deputy who stopped appellant had a reasonable, articulable suspicion for doing so and that the stop was therefore legal.

            Affirmed.