STATE OF MINNESOTA

IN COURT OF APPEALS

A06-588

State of Minnesota,
Respondent,

vs.

Richard Allen Dobsinski,
Appellant.

Filed March 13, 2007

Affirmed

Minge, Judge

Ramsey County District Court

File No. K0-05-2429

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

John J. Choi, St. Paul City Attorney, Cheri M. Sisk, Assistant City Attorney, 500 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Christopher J. Champagne, Ramsey County Public Defender, 101 East Fifth Street, Suite 1808, St. Paul, MN 55101 (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Minge, Judge.

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

MINGE, Judge

Appellant challenges his conviction, claiming that it was based on evidence discovered as a result of an illegal seizure. Because we conclude that the police stopped and approached appellant based on a reasonable, articulable suspicion, the district court properly denied the motion to suppress the evidence, and we affirm.

FACTS

At the request of his friend, Thomas Mohr, appellant Richard Dobsinski drove Mohr to the Target store on University Avenue in St. Paul, dropped him off, and waited for him in the parking lot. Mohr went inside the store and selected two tee-shirts. He put one shirt inside his jacket, paid for the other shirt, and attempted to leave the store. Off-duty police officer James Nelson observed Mohr’s actions, detained him for shoplifting, and escorted him to the store’s security office. There, Mohr asked Officer Nelson if the detention would take long because appellant was waiting for him in the parking lot. At Officer Nelson’s request, Mohr described appellant’s vehicle as a black Cadillac that was circling the parking lot and identified the vehicle on the store’s video surveillance system, which monitored the parking lot.

Officer Nelson called the St. Paul police dispatcher and requested a traffic stop of appellant’s vehicle. Officer Gustafson responded to the call. Officers Gustafson and Nelson approached appellant’s vehicle, which was now parked near the entrance to the Target store. Officer Nelson asked appellant for his driver’s license and asked him what he was doing in the Target parking lot. While talking with appellant, Officer Nelson smelled alcohol and noticed that appellant’s eyes were bloodshot. The officers detained appellant in the back of Officer Gustafson’s squad car and administered a preliminary breath test. Appellant registered a .062 alcohol concentration. The officers checked appellant’s driver’s license and discovered that it was subject to a drug and alcohol restriction. Appellant also failed to provide valid proof of insurance.

Appellant was charged with violation of a restricted driver’s license, a gross misdemeanor under Minn. Stat. § 171.09, subd. 1(d)(1) (Supp. 2005), and no proof of insurance, a misdemeanor under Minn. Stat. § 169.791, subd. 2 (2004). At the preliminary hearing, appellant moved to suppress evidence obtained as a result of the seizure and dismiss the charges, arguing that the police officers lacked an adequate basis for the initial investigative stop. The state stipulated that appellant was seized. After a hearing, the district court denied appellant’s suppression motion.

Appellant submitted his case to the district court in accordance with State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), stipulating to the facts as outlined in the complaint, police reports, and hearing testimony. The district court found appellant guilty but stayed execution of the sentence pending this appeal.

D E C I S I O N

The only issue on appeal is whether the district court erred in denying appellant’s suppression motion. “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, 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). A district court’s determination of reasonable suspicion to support an investigatory stop is reviewed de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution protect the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. Warrantless searches are per se unreasonable, subject to limited exceptions. State v. Burbach, 706 N.W.2d 484, 488 (Minn. 2005). One such exception allows officers to conduct investigative stops (Terry stops) so long as the officers have an objective and articulable basis for suspecting criminal activity. State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999).

To determine the legality of an investigative stop, we “review the events surrounding the stop and consider the totality of the circumstances in determining whether the police had a reasonable basis justifying the stop.” Britton, 604 N.W.2d at 87. An officer may conduct a limited stop to investigate suspected criminal activity if the officer can point to “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) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)) (quotation marks omitted). We use an objective standard to evaluate whether an investigatory stop was supported by reasonable suspicion. State v. Balenger, 667 N.W.2d 133, 139 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003). To establish such suspicion, “[t]he police must only show that the stop was not the product of mere whim, caprice, or idle curiosity . . . .” Pike, 551 N.W.2d at 921 (quotation omitted).

Here, Officer Nelson formed his suspicion that appellant was involved in Mohr’s shoplifting scheme on the basis of specific and articulated facts: Mohr attempted to leave the store with two shirts shortly after appellant dropped Mohr off at Target. Mohr told Officer Nelson that appellant was waiting for him in the parking lot. Mohr described the type of vehicle appellant was driving. Mohr and the officers identified such a vehicle on the security monitors as the vehicle was circling the Target parking lot. Officer Nelson observed a vehicle fitting Mohr’s description stopped close to the door of the store. According to Officer Nelson’s testimony, these particular facts were consistent, in his experience and training, with his suspicion that appellant was involved in the shoplifting scheme.

Not only was Officer Nelson’s suspicion formed on the basis of specific and articulable facts, the investigatory stop was also reasonable. The investigative stop was limited in nature. Nelson simply approached appellant’s vehicle, asked appellant what he was doing at Target, and asked him for his driver’s license. And while it is true that the facts here are also consistent with lawful behavior, it is well established that “wholly lawful conduct might justify the suspicion that criminal activity is afoot.” Britton, 604 N.W.2d at 89. Here, the officers did not seek to stop just any vehicle in the parking lot. Instead, the officers stopped the particular black Cadillac that Mohr identified as having driven him to Target, the same vehicle that Officer Nelson observed circling the parking lot, and the vehicle now parked near the front entrance to the store. Appellant argues that there were at least two black Cadillacs in the parking lot. Although confusion between the two vehicles was a risk factor, the fact that there were only two similar vehicles does not so diminish the officers’ basis for acting as to eliminate the existence of reasonable, articulable suspicion. Here, the officers’ suspicion that appellant was assisting Mohr was reasonably based on the totality of the circumstances, and the officers’ investigative stop was not based upon a whim, caprice, or idle curiosity.

Appellant argues that investigatory stops are generally limited to suspected ongoing criminal activity and that because Mohr’s misdemeanor shoplifting attempt had been foiled, and because Mohr had been arrested before the officers stopped appellant’s vehicle, the stop was unlawful. The essence of appellant’s argument is that by definition Terry stops conducted to investigate misdemeanors that have been completed are unreasonable. Appellant cites Blaisdell v. Comm’r of Pub. Safety, 375 N.W.2d 880 (Minn. App. 1985), aff’d on other grounds, 381 N.W.2d 849 (Minn. 1986), and a recent unpublished court of appeals decision for support.

In Blaisdell, law enforcement agents conducted a Terry stop to investigate a misdemeanor theft that was completed two months prior to the stop. Id. at 881. We held that “vehicle stops to investigate completed misdemeanors violate the fourth amendment of the United States Constitution.” Id. at 884. But, we noted that we did “not decide the difficult question of when an offense becomes a ‘completed’ crime, since the gas theft in question occur[ed] two months before the stop was certainly ‘completed.’” Id. at 882 n.2. We added, “courts should be hesitant to declare criminal conduct which occurred in the very recent past (such as the same day of the stop) to be ‘completed.’” Id.

Like the Blaisdell court, we do not define when a misdemeanor offense becomes completed so as to bar subsequent investigative stops. Here, the time between Mohr’s shoplifting offense and the investigative stop of appellant was short, just a matter of minutes. This distinguishes this case from Blaisdell. Appellant’s position, that Mohr’s shoplifting offense was “completed” at the moment he was detained by Officer Nelson and that the officers were barred as a matter of law from conducting a Terry stop to further investigate the offense, is inconsistent with Blaisdell’s instruction that courts be hesitant to declare criminal conduct in the very recent past to be completed. Essentially, appellant claims that once completed, the crime is stale, that the lack of imminence or urgency diminishes the need for action, and that it was improper to make a stop unless other circumstances provided an independent basis for the stop. Because Mohr had just been apprehended and his shoplifting offense had just been prevented, the investigatory stop of appellant was reasonable. The events were contemporaneous and related. Appellant’s stop took place within the time frame of Mohr’s offense. In this setting, a Terry stop is appropriate. If adopted, appellant’s position would unnecessarily chill a legitimate and related criminal investigation that is occurring in the context of the very offense that law enforcement has interrupted.

Because we conclude that Officer Nelson’s limited investigative stop was based on reasonable articulable suspicion and was contemporaneous with the principal shoplifting offense, we affirm.

Affirmed.

Dated: