A05-999

State of Minnesota,

Respondent,

vs.

Kathryn Strouss,

Appellant.

Filed May 9, 2006

Reversed

Hudson, Judge

Cass County District Court

File No. K2-03-1317

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

Earl E. Maus, Cass County Attorney, Courthouse, P.O. Box 3000, Walker, Minnesota 56484 (for respondent)

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

Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

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

HUDSON, Judge

In this appeal from a conviction of fifth-degree controlled-substance offense, appellant argues that the deputy who stopped the car in which she was a passenger did not have reasonable, articulable suspicion to stop the vehicle. Because the totality of the circumstances did not demonstrate a reasonable basis for making the stop, we reverse.

FACTS

On November 21, 2003, at approximately 2:00 a.m., Deputy Anthony Cyr of the Cass County Sheriff’s Department was on routine patrol northbound on County Road 1 from Pillager when he observed a vehicle traveling southbound turn west onto an abandoned highway. The road surface of the abandoned highway was severely degraded with multiple potholes. The road provided primary access to one trailer home and ran behind two businesses and one other residence.

Deputy Cyr was aware that one of the businesses had been burglarized “a little over a year” earlier. That burglary remained unsolved. Deputy Cyr, a resident of the area, believed that the trailer home was unoccupied at the time. Deputy Cyr testified that he wondered why a vehicle would be going down this road and, for that reason, he followed it.

Deputy Cyr observed two people in the vehicle. After turning into the drive of the trailer home, the vehicle then turned left onto an approach to a corn field rather than turning right toward the trailer. Believing the occupants of the vehicle did not have any reason to be there, Deputy Cyr activated his patrol car’s red lights and stopped the vehicle.

Appellant was the passenger in the vehicle. Only after identifying appellant, and hearing appellant state that she was living with a male in the trailer home, did Deputy Cyr notice that another vehicle was parked at the trailer home. As a result of the stop, appellant was arrested and charged with controlled-substance crime in the fifth degree for possession of methamphetamine in violation of Minn. Stat. § 152.025, subd. 2(1) (2002).

In an omnibus motion to suppress the evidence, appellant argued that the deputy unlawfully stopped the vehicle. The district court denied the motion to suppress, and appellant submitted her case to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty as charged. The court imposed a stayed sentence, placed appellant on probation for five years, and fined her $500. 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 the car. Appellant argues that the stop was not constitutionally justified because Deputy Cyr stopped the vehicle based solely on his own “subjective suspicion and curiosity.”

When reviewing pre-trial 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). When, as here, the facts are not in dispute, this court must “analyze the testimony of the [deputy] 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. of Comm’r Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985)).

The federal and state constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10; 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.” Dickerson, 508 U.S. at 372, 113 S. Ct. at 2135 (quotation omitted). One such exception allows a peace officer to make an investigatory stop, temporarily seizing a person, when 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 exception, the officer’s suspicion of criminal activity “must be based on specific, articulable facts.” Cripps, 533 N.W.2d at 391. The propriety of an investigatory stop must be determined by considering the totality of the circumstances surrounding the stop. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

Here, the totality of the circumstances does not support the investigatory stop. Appellant was stopped on a rural road that ran behind two businesses. While Deputy Cyr had knowledge of a prior burglary at one of the businesses, that burglary occurred more than a year prior to this incident. Had the burglary not been both an isolated incident and stale, our decision in Olmscheid v. Comm’r of Pub. Safety, may have supported this stop. See Olmscheid v. Comm’r of Pub. Safety, 412 N.W.2d 41, 42–43 (Minn. App. 1987), review denied (Minn. Nov. 6, 1987) (concluding that there was an “objective and particularized basis” for the stop of a car that was on a “dead-end road at approximately 1:30 a.m. coming from an area behind a car dealership which had recently experienced property theft”). But an isolated burglary of a business that occurred more than a year earlier does not provide an officer with reasonable suspicion of criminal activity to support an investigatory stop. We also note that there had been no traffic violation justifying an investigatory stop.

We are left with the deputy’s observation of a vehicle traveling on a rural road in the early hours of the morning. While the deputy was free to follow the vehicle, absent a reasonable suspicion of criminal activity that is based on specific, articulable facts, he had no basis to stop the vehicle. Deputy Cyr’s testimony demonstrates that he stopped the car based primarily on his curiosity rather than a reasonable suspicion of criminal activity. Deputy Cyr testified that when he made the stop he thought this activity “could be a million things. It could be an abduction. It could be a burglary attempt. . . . I was unsure why they were there. It was suspicious at best.” The officer’s statement that “this could be a million things” also suggests that appellant and the driver might well have been a couple on their way home. Moreover, a vehicle traveling on a seldom-used road in the early morning hours is not objectively suspicious behavior in rural Minnesota. In sum, Deputy Cyr’s testimony does not support the district court’s finding that he had a reasonable, articulable suspicion that the occupants of the vehicle were involved in criminal activity.

Because Deputy Cyr’s testimony does not demonstrate that this stop was based on reasonable suspicion, the stop violated appellant’s constitutional protection against unreasonable searches and seizures. The district court erred in not suppressing the evidence.

Reversed.