Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Paula Jean Kruchowski, Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for respondent)

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Launair Gerard Britton challenges his conviction for violating Minn. Stat. § 169.121, subd. 3(a) (1996) (driving with alcohol concentration over .20, child endangerment). Britton argues that evidence of the test results of his blood-alcohol level should have been suppressed because his Fourth Amendment rights were violated when the police stopped him although their computer check revealed the vehicle he was driving was not stolen. Because the officer's training and experience provided a particularized and objective basis for suspecting Britton of criminal activity, we affirm.

D E C I S I O N

When the material facts are not in dispute, this court independently determines whether the evidence should be suppressed as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Britton argues that his Fourth Amendment rights were violated when the police stopped him after a computer check revealed that the vehicle he was driving was not stolen.

In interpreting the Fourth Amendment, the United States Supreme Court has determined that an investigatory stop "must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981)). Similarly, the Minnesota Supreme Court has held that to make a lawful investigatory stop, an officer must have a "particularized and objective basis for suspecting the particular persons stopped of criminal activity." Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985) (quoting Cortez, 449 U.S. at 417-18, 101 S. Ct. at 694-95). An officer's assessment is made from the totality of the circumstances, as well as from all inferences and deductions drawn from them, even inferences and deductions that might elude an untrained person. Berge, 374 N.W.2d at 732. Due regard is given to an officer's training in law enforcement. State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (citing Cortez, 449 U.S. at 418, 101 S. Ct. at 695).

Britton was stopped as a result of an investigation to see if the vehicle he was driving was stolen. Respondent argues that although Officer Taylor's Minnesota Department of Transportation (MDT) check came back with no report of a stolen vehicle, his training and experience as a police officer maintained his suspicion that the vehicle was "recently stolen" and had not yet been reported.

Taylor testified that (1) based on his training and experience, the fact that Britton's vehicle had not been reported stolen did not dispel his suspicion that criminal activity was afoot; (2) his suspicion continued based on his knowledge that there tends to be a lag time between the theft of a vehicle and the reporting of the theft, especially at nighttime; and (3) his suspicion was heightened because there was a plastic bag over the rear window of the vehicle Britton was driving.

Britton argues that the MDT check should have dispelled Taylor's suspicions. In support of his argument, Britton relies on State v. Hickman, 491 N.W.2d 673 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). In Hickman, this court invalidated an investigatory stop where an officer noticed an expired registration sticker, initiated a traffic stop, and observed a valid temporary permit in the rear window. Id. at 674. In invalidating the stop, we held that the officer no longer had an articulable and reasonable suspicion that the vehicle was unregistered, that the driver was unlicensed, or that any criminal activity was afoot after observing the temporary registration in the rear window. Id. at 675.

Britton's reliance on Hickman is misplaced. In Hickman, the officer's suspicion that the vehicle was unregistered was conclusively dispelled upon noticing the temporary registration in the window. Here, the MDT check did not conclusively dispel Officer Taylor's suspicion that the car was "recently stolen" and had not yet been reported. Furthermore, Taylor's training and experience provided a reasonable basis for his suspicion. Therefore, Britton's Fourth Amendment rights were not violated. The trial court did not err in denying Britton's motion to suppress evidence of the test results of his blood-alcohol level.

Affirmed.

FOLEY, Judge (dissenting)

I respectfully dissent. The material facts are not in dispute. Thus, we determine whether the evidence should be suppressed as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Appellant argues that his Fourth Amendment rights were violated when the police stopped him after a computer check revealed that the vehicle he was driving was not stolen. I agree.

An investigatory stop "must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." State v. George, 558 N.W.2d 575, 578 (Minn. 1997) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981)). Merely being in a suspected high crime area will not justify a stop. Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641 (1979); State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd 508 U.S. 366, 113 S. Ct. 2130 (1993). However, that seems to be the basis for this stop. In addition, a plastic covering over a window in the beginning of March, in our climate, with no report of a stolen vehicle fitting the description of appellant's vehicle, did not provide reasonable articulable suspicion that appellant was engaged in, or about to engage in, criminal activity. I would reverse.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.