A05-109

State of Minnesota,

Respondent,

vs.

Alejandro Lopez Rendon,

Appellant.

Filed February 7, 2006

Affirmed

Hudson, Judge

Clay County District Court

File No. KX-04-534

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

Lisa N. Borgen, Clay County Attorney, Jenny M. Samarzja, Assistant County Attorney, 807 North Eleventh Street, P.O. Box 280, Moorhead, Minnesota 56561-0280 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

On appeal from his conviction of driving after cancellation, appellant argues that the officer who responded to a domestic-dispute call did not have a reasonable, articulable suspicion to stop appellant’s van because it did not sufficiently match the vehicle description given. Appellant also argues that, even if the stop was valid, the officer impermissibly expanded its scope by asking appellant for identification. Because the officer had a sufficient reasonable, articulable suspicion to stop appellant’s van and investigate the domestic dispute, we affirm.

FACTS

On February 8, 2004, Dilworth police officer Michael Rapp received a dispatch report detailing a domestic dispute in progress. According to the dispatch, the male suspect, whose last name was Rendon, left the scene in a blue Ford minivan. Officer Rapp did not receive the model of the minivan at that time. Shortly thereafter, Officer Rapp saw what he believed to be a blue minivan traveling from the general direction of the address given for the domestic dispute. Photographs demonstrate that the van was actually green with bluish undertones.

Officer Rapp ran a license plate registration check of the van and discovered that the van was registered to an Alice Rendon. The van had tinted rear windows, which prevented the officer from viewing the vehicle’s occupants. Officer Rapp stopped the van in a Wal-Mart parking lot. Appellant Alejandro Rendon was driving the vehicle. His wife, Alice Rendon, was a passenger.

Officer Rapp identified the driver as appellant by his state identification card. Appellant indicated that he did not have a valid driver’s license. Officer Rapp asked appellant if he had been involved in the domestic dispute; appellant denied any knowledge of or involvement in the incident. Officer Rapp then ran appellant’s identification information through the state computer and arrested appellant for driving after cancellation. Officer Rapp later learned that appellant was not involved in the domestic dispute.

The state charged appellant with one count of gross misdemeanor driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5(1) (2002). Appellant challenged admission of the evidence recovered from the traffic stop, arguing that the officer lacked the required reasonable and articulable suspicion to stop the vehicle. Following a hearing, the district court denied appellant’s motion to suppress. Appellant waived his right to a jury trial and submitted the case to the district court on stipulated facts. The district court found appellant guilty and entered judgment. This appeal follows.

D E C I S I O N

Appellant challenges the district court’s decision to admit evidence recovered pursuant to the investigatory stop of appellant’s van. When reviewing pretrial orders on motions to suppress evidence, this court “independently review[s] the facts and determine[s], 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). Where, as here, the facts are not in dispute, this court must “analyze the testimony of the officer[] and determine whether, as a matter of law, his observations provided an adequate basis for the stop.” State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003) (quoting Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985)).

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993). And searches and seizures “conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions.” Id. (quotation omitted).

A police officer may stop and temporarily seize a person in order to investigate if the officer reasonably suspects that person of criminal activity. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). “Reasonable, articulable suspicion requires a showing that the stop was ‘not the product of mere whim, caprice, or idle curiosity.’” Waddell, 655 N.W.2d at 809 (quoting State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996)). Therefore, to meet this standard, “the officer’s suspicion must be based on specific, articulable facts.” Cripps, 533 N.W.2d at 391.

Appellant argues that the district court erred in concluding that the stop of the van was constitutional because (a) the van’s color was not sufficiently similar to the van identified on the dispatch and (b) the vehicle’s registered owner, although a “Rendon,” was a woman and, therefore, not a male suspect leaving the scene of a domestic dispute. We disagree.

The totality of the circumstances supports the investigatory stop. Here, the officer saw a van that was similar, but not identical, in color to the suspect’s vehicle coming from the general direction of the dispute. Although the record does not reflect the exact amount of time between the report of the domestic dispute and the investigatory stop, the officer’s testimony suggests that there was not a significant time gap between the dispatch and the stop. Finally, while Officer Rapp could not identify the suspect visually because of the tinted windows, the officer knew that the vehicle was registered to an individual with the same last name as the suspect. An officer’s decision to conduct an investigatory stop is given considerable discretion, and “the decision to stop a vehicle very similar in body style but slightly lighter in color cannot be considered mere caprice or whim.” Waddell, 655 N.W.2d at 810; see also United States v. Collins, 532 F.2d 79, 83 (8th Cir. 1976) (upholding an investigatory stop of a vehicle that was not a perfect color match when the officer observed the vehicle three miles away from the scene within ten minutes of the time the bank was robbed).

As appellant correctly notes, Minnesota precedent provides that it is reasonable for an officer to assume that the driver of a vehicle is the vehicle’s registered owner. See Pike, 551 N.W.2d at 922. But the circumstances confronting Officer Rapp supported the assumption that the suspect may be driving a family member’s car or the assumption that the suspect was in the vehicle but not driving. Therefore, the evidence supports the district court’s determination that Officer Rapp had sufficient reasonable suspicion of criminal activity to stop the van.

Appellant next argues that Officer Rapp exceeded the permissible scope of the investigatory stop by asking for appellant’s identification after he discovered that the van contained a husband and wife who denied any involvement with a domestic dispute.

Article I, Section 10 of the Minnesota Constitution imposes a reasonableness limitation on both the duration and the scope of a Terry detention. State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002). Accordingly, once this court determines that the stop was justified at its inception, the next question is whether the officer’s actions during the stop were “reasonably related to and justified by the circumstances that gave rise to the stop.” State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004). An intrusion that is not closely related to the initial justification for the seizure is invalid unless it is supported by independent probable cause or is otherwise reasonable. Id.

As a preliminary issue, respondent argues that appellant waived this issue by not raising it before the district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that issues not raised before the district court are deemed waived on appeal to this court). Although the district court did not make any findings or conclusions regarding this argument, the record reflects that appellant did raise this argument at the omnibus hearing. Accordingly, appellant has not waived consideration of the argument on appeal.

Citing State v. Hickman, 491 N.W.2d 673 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992), appellant contends that Officer Rapp unreasonably expanded the scope of the stop to ask for appellant’s license when (a) the initial suspicions supporting the stop were dispelled and (b) no circumstances supported a reasonable suspicion that appellant was an unlicensed driver. In Hickman, this court held that the further detention of a driver to request identification following a traffic stop for an expired registration unconstitutionally exceeded the scope of the stop because once the officer observed a valid temporary permit on the vehicle’s window, the officer no longer had a reasonable suspicion that the vehicle was unregistered. Id. at 675.

The request for appellant’s identification was within the permissible scope of the investigatory stop, however, because the request related to the original purpose of the stop: determining whether appellant was the suspect. In order to avoid unnecessary confusion in effectuating an investigatory stop, the United States Supreme Court and our supreme court have consistently held that an officer may direct a lawfully stopped person to provide identification. See, e.g., State v. White, 489 N.W.2d 792, 793–94 (Minn. 1992) (citing United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680 (1985)). Appellant’s argument assumes that appellant’s denial of involvement in the domestic dispute, on its own, was sufficient to dispel any reasonable suspicion and, therefore, Officer Rapp was required to discontinue his investigation. But appellant’s argument contradicts years of Minnesota precedent affording officers considerable discretion in weighing credibility during investigatory stops. See, e.g., State v. Britton, 604 N.W.2d 84, 88 (Minn. 2000) (“We are deferential to police officer training and experience and recognize that a trained officer can properly act on suspicion that would elude an untrained eye.”).

Accordingly, the district court did not err in admitting evidence recovered pursuant to the investigatory stop. Because we conclude that appellant did not waive his permissible-scope argument, we decline to address appellant’s claim of ineffective assistance of counsel.

Affirmed.