State of Minnesota, Respondent, vs. Michael Eugene Ross, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-2174

State of Minnesota,
Respondent,
 
vs.
 
Michael Eugene Ross,
Appellant.

Filed August 1, 2000

Affirmed
Klaphake, Judge

St. Louis County District Court

File No. K2-99-300466

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103; and

Alan L. Mitchell, St. Louis County Attorney, Courthouse, 100 North 5th Avenue W., #501, Duluth, MN  55802 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant)

            Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

KLAPHAKE, Judge

            Appellant Michael E. Ross challenges a pretrial order declining to suppress evidence obtained as a result of his traffic stop.  After observing four police vehicles at the scene of a police investigation, Ross turned his vehicle around and drove in the opposite direction at a high rate of speed.  Because appellant's evasive conduct and high rate of speed provided the officers with reasonable suspicion of criminal activity to justify the stop and because the district court's finding on appellant's speed is supported by the record, we affirm.

            An appellate court reviews "questions of reasonable suspicion de novo" when considering the legality of an investigatory stop.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  Factual findings are reviewed under the clearly erroneous standard.  Id.; State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (factual findings on Fourth Amendment suppression issues reviewed under clearly erroneous standard of review).

            A police officer may make an investigatory stop of a vehicle if the officer is "justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."  United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981).  The Minnesota Supreme Court has defined this standard as requiring the officer to have a "particularized and objective basis for suspecting the particular person 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 695).  The suspicion must be based on more than a hunch.  George, 557 N.W.2d at 578; State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989).  But "if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle."  George, 557 N.W.2d at 578 (citations omitted). 

            Minnesota courts have upheld investigativestops based on conduct that includes a defendant's evasive maneuvers after viewing police.  See, e.g., State v. Petrick, 527 N.W.2d 87, 87 (Minn. 1995) (driver's evasive conduct just after encountering police included turning into first available driveway and immediately shutting off car lights); Johnson, 444 N.W.2d at 827 (defendant's evasive conduct included making "quick turn" off highway seconds after looking trooper "in the eye").  Minnesota courts have also upheld investigative stops based on a defendant's driving at an excessive speed.  See, e.g., State v. Shellito, 594 N.W.2d 182, 185 (Minn. App. 1999); Carradine v. State, 494 N.W.2d 77, 82 (Minn. App. 1992), rev'd in part on other grounds, 511 N.W.2d 733 (Minn. 1994).

            Here, the district court found that appellant turned around "upon seeing the squad car" and "departed at a high rate of speed."  These facts provided police with an objective basis for suspecting that appellant was involved in criminal activity.  Thus we conclude that the district court did not err in declining to suppress evidence obtained as a result of the stop.

            Appellant also challenges the court's finding on the speed of his departure, claiming that the record does not support the finding.  An omnibus hearing record consists of the evidence offered by the prosecution and defense, as well as all papers and exhibits in the proceeding.  See Minn. R. Crim. P. 11.02, subd. 1; 11.08, subd. 3.  Specifically, appellant claims that the officer who testified regarding the stop, Officer Richard Sellman, did not testify to the speed of appellant's vehicle and that his police report was not entered into evidence.  The parties disagree about whether Officer Kurt Metzig's report, which also referred to appellant's speed, was included in the record.  The record shows that although Officer Metzig's report was filed on June 25, 1999, 11 days after the omnibus hearing, it was available more than a month before the last submission to the omnibus file.  Thus, the record includes the evidence on the speed of appellant's driving, and the district court's finding on this issue is not clearly erroneous.

            Affirmed.