This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-2516

State of Minnesota,

City of Burnsville,

Appellant,

vs.

Robert Michael Mills,

Respondent.

Filed August 5, 1997

Affirmed

Amundson, Judge

Dakota County District Court

File No. T2-96-59574

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Michael J. Mayer, Grannis, Grannis, Hauge, Eide, Anderson & Keller, P.A., 1260 Yankee Doodle Road, Eagan, MN 55121 (for Appellant)

Tristam O. Hage, The Colonnade, Suite 970, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for Respondent)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.

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

AMUNDSON, Judge

The district court dismissed DUI charges against respondent Robert Michael Mills, finding that the arresting officer's initial stop of Mills was invalid. We affirm.

FACTS

At approximately 6:00 p.m. on May 1, 1996, police officer Greg Enos observed Mills operating a motor vehicle that was stopped at a yield sign at the intersection of Black Dog Road, the Burnsville Dump road, and the entrance ramp to 35W-South. Officer Enos then observed Mills's vehicle "spin its wheels and throw up loose sand and gravel that was located on the roadway when it pulled out from the yield sign."

Because Mills's tires spun and threw up loose sand, Officer Enos followed Mills onto the freeway and subsequently stopped Mills's vehicle. As a result of the stop, Mills was charged with driving under the influence, driving with an alcohol concentration of .10 or more, and driving with an alcohol concentration of .10 or more within two hours of driving. The district court, in its order dated December 10, 1996, dismissed the charges against Mills, stating that the stop of Mills was invalid and the evidence obtained as a result of the stop is inadmissible. This appeal followed.

D E C I S I O N

The state argues that the district court erred in determining that Officer Enos's stop of Mills was invalid. The state contends that because Officer Enos observed the tires of Mills's vehicle spin and throw up sand, which is a violation of a Burnsville ordinance prohibiting exhibition driving, the stop of Mills was valid.

Police may make investigative stops of vehicles only if they have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695 (1981)). The officer need not observe an actual violation of the law, but rather the officer must show that the stop was not the product of "mere whim, caprice or idle curiosity." Id. If the officer cannot articulate a particularized and objective basis for the stop, any evidence that is seized from the stop is inadmissible. Matter of Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).

Appellate courts are limited to determining whether the district court's findings of fact regarding the stop are clearly erroneous. See Hubbs v. Leach, 355 N.W.2d 470, 473 (Minn. App. 1984), review denied (Jan. 2, 1985). This court must give due regard to the district court's judgment concerning the credibility of the witnesses. Id. There must be a "definite and firm conviction that a mistake has been made" for this court to conclude that the district court's findings are clearly erroneous. Id. (citation omitted).

Here, the district court found that Officer Enos failed to state a "particularized and objective basis" for suspecting Mills of criminal activity. Officer Enos's sole basis for his stop was the spinning of Mills's tires that incidently kicked up sand and gravel. This finding suggests that the district court accepted Mills's version of the facts regarding the significance of the spinning of Mills's tires that kicked up the sand and gravel. Because there is no basis to disturb the district court's assessment of credibility, and its findings of fact are not clearly erroneous, the district court was justified in dismissing the charges against Mills. See Minn.R.Civ.P. 52.01 (trial court's findings will not be reversed unless clearly erroneous, and due regard must be given to the trial court's opportunity to judge the credibility of the witnesses).

Affirmed.

Dated: ______________________________________

Judge Roland C. Amundson