This opinion will be unpublished and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

A04-1248

 

 

State of Minnesota,

Respondent,

 

vs.

 

Frederick Mobley,

Appellant.

 

 

Filed July 12, 2005

Affirmed

Halbrooks, Judge

 

 

Ramsey County District Court

File No.  K6-04-223

 

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

 

Manuel Cervantes, St. Paul City Attorney, John H. Stechmann, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)

 

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

 

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

HALBROOKS, Judge

            This appeal is from a conviction of gross-misdemeanor driving while impaired (DWI) in violation of Minn. Stat. § 169A.20, subd. 1(5).  Appellant challenges the district court’s pretrial order denying his motion to suppress evidence.  Because we conclude that the investigative stop was supported by a reasonable, articulable suspicion, we affirm.

FACTS

 

Appellant Frederick Mobley was stopped by a St. Paul police officer in the early morning hours after the officer’s attention had initially been drawn to the activities of a female pedestrian at the intersection of Dale Street and Maryland Avenue.  As the officer watched, Mobley drove up and stopped briefly by the woman.  Although there was no observed contact between the two, the woman screamed and waved her arms as Mobley pulled away.  The officer stopped Mobley’s vehicle after Mobley made eye contact with the officer and then accelerated.  When she approached the car, the officer noticed that Mobley, who did not have a valid driver’s license, showed signs of intoxication.  She also saw an open can of beer on the console in the front seat.  Mobley agreed to submit to chemical testing, and the Intoxilyzer test showed an alcohol concentration of .13.

Mobley moved to suppress the evidence of intoxication, arguing that the officer lacked a reasonable, articulable suspicion to justify the stop.  Based on the officer’s testimony at the omnibus hearing, the district court ruled that, given the totality of the circumstances, the officer had articulable suspicion to stop Mobley’s vehicle.  The district court found that, although it was the female pedestrian’s suspicious conduct that initially drew the officer’s attention, Mobley had done “two suspicious things”:  (1) he drove very slowly around the corner and then stopped; and (2) he made eye contact with the officer and then accelerated as he drove away. 

Mobley entered into a Lothenbach stipulation, waiving a jury trial and agreeing that the trial court could decide his guilt or innocence based on a stipulated record, including the police report.  See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980).  The trial court found Mobley guilty of gross-misdemeanor DWI (having an alcohol concentration of .10 or more within two hours of driving), and sentenced him.  This appeal follows.

D E C I S I O N

            Mobley argues that the officer did not have articulable suspicion to justify the investigative stop.  He contends that his driving conduct was not suspicious and points out that the officer’s initial suspicions were directed at the female pedestrian rather than at him.  He also contends that he did not engage in any evasive conduct that indicated an attempt to avoid an encounter with the police.

            The constitutionality of an investigative stop is a question of law subject to de novo review.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  Appellate courts accept the district court’s findings of fact unless the findings are clearly erroneous, giving due weight to the inferences drawn from those facts by the district court.  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).

            The district court found, based on the officer’s testimony, that Mobley, after driving slowly around the corner, stopped at the curb near where the female pedestrian was standing.  Mobley has not shown that this finding was clearly erroneous.  And he does not attempt to show that stopping by a female pedestrian who has herself been acting suspiciously at 1:50 a.m. would not create a reasonable suspicion that he was “cruising” for prostitution activity.  Cf. City of St. Paul v. Uber, 450 N.W.2d 623, 627 (Minn. App. 1990) (implying that articulable suspicion could exist if the driver was “observed stopping or slowing down in the vicinity of any known prostitutes”), review denied (Minn. Mar. 22, 1990).

            While the female pedestrian here was not known to be a prostitute, the officer was suspicious and was watching her.  Mobley’s slower-than-normal driving by itself may not have created a reasonable suspicion.  But cf. State v. Haataja, 611 N.W.2d 353, 355 (Minn. App. 2000) (holding that slow driving that was impeding traffic and appeared unnecessary provided articulable suspicion that the driver was “somehow impaired”), review denied (Minn. July 25, 2000).  But this court must look at the “totality of the circumstances” in determining whether police had articulable suspicion to conduct a stop.  State v. Claussen, 353 N.W.2d 688, 690 (Minn. App. 1984).  Here, the officer did not stop Mobley’s vehicle until after she made eye contact with him and she observed what she believed to be an attempt to evade her.

            A driver’s “evasive action” in response to the presence of police may provide a reasonable, articulable suspicion supporting a stop.  See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (holding that a driver’s conduct in pulling off the highway after making eye contact with the officer, pulling into a driveway, and then re-emerging onto the highway, provided a reasonable, articulable suspicion); see also State v. Petrick, 527 N.W.2d 87, 88-89 (Minn. 1995) (holding that a driver’s turning off into the first available driveway after seeing the squad car, then immediately turning his headlights off, was evasive action warranting a stop).

            Mobley argues that Johnson and Petrick require repeated efforts to avoid police or extremely evasive conduct, which he did not engage in.  But although the evasive driving conduct in those caseswas more significant than Mobley’s mere acceleration from the curb, Mobley’s “evasive action” was not the sole justification for the stop, as it was in Petrick and Johnson.

            Mobley’s argument also suggests that the officer had to choose between the two suspicions that she entertained—(1) prostitution or drug activity, or (2) a domestic incident—before conducting an investigative stop.  But it is well established that police need not observe any criminal activity before making an investigative stop.  See Haataja, 611 N.W.2d at 354.  Nor is probable cause necessary for an investigative stop.  State v. Cavegn, 294 N.W.2d 717, 721 (Minn. 1980).  To require that a police officer eliminate one of two suspicions of criminal activity before making a stop would virtually require probable cause as a prerequisite to a stop.  It would encourage a piecemeal analysis of the facts surrounding a stop that would be inconsistent with the “totality of the circumstances” standard.  And without some means of investigation, particularly the investigative stop itself, police would frequently be unable to determine which of multiple suspicions of criminal activity should be eliminated.  Therefore, we reject the argument that the officer was required to choose between the two suspicions of criminal activity before conducting a stop.

            Mobley also argues that because he drove away from the suspicious female pedestrian, he cleared himself of any suspicion of wrongdoing or at least shifted the focus of suspicion to the woman.  But Mobley’s act of driving away did not dispel the suspicion of a domestic incident.  Rather, considering that the woman reacted by yelling, screaming, and waving her arms, it only confirmed that suspicion.  Even as to the suspicion of prostitution, Mobley’s driving away did not necessarily dispel the officer’s suspicion that he was “cruising” for prostitutes.  But, in any event, Mobley’s “evasive conduct” in accelerating as soon as he saw the police officer provided ample confirmation in general of the officer’s suspicions.

We conclude that the totality of the circumstances provided the officer with a reasonable, articulable suspicion justifying the investigative stop.  The officer observed Mobley slow his car and stop near a woman who had already attracted the officer’s suspicions, saw the woman scream and wave her arms when Mobley pulled away, and then saw Mobley accelerate after he made eye contact with the officer.  An experienced police officer could form an articulable suspicion of criminal activity based on this combination of facts.  See Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (holding that officer in forming reasonable suspicion may make inferences and deductions that might elude an untrained person).  Because the stop was supported by a reasonable, articulable suspicion, we affirm Mobley’s conviction.

            Affirmed.