State of Minnesota, Respondent, vs. Ozzie George Jones, Appellant, and Richard Earl Ulrich, Appellant.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1994) State of Minnesota in Court of Appeals C7-96-172 State of Minnesota, Respondent, vs. Ozzie George Jones, Appellant, and Richard Earl Ulrich, Appellant. Filed October 15, 1996 Affirmed Amundson, Judge Todd County District Court File Nos. K0-95-284, K9-95-283 John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue, Suit 600, Minneapolis, MN 56347 (for Appellants) Hubert H. Humphrey, III, Attorney General, Cheryl W. Heilman, Assistant Attorney General, Thomas R. Ragatz, Assistant Attorney General, Suite 900, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Charles Rasmussen, Todd County Attorney, Todd County Courthouse, 215 First Avenue South, Long Prairie, MN 56347 (for Respondent) Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Thoreen, Judge.(*) [Footnote] (*)Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. Unpublished Opinion AMUNDSON, Judge (Hon. Paul Flora, District Court Trial Judge) Pursuant to a Lothenbach stipulation, appellants Ozzie George Jones and Richard Earl Ulrich challenge the admission of evidence seized after an investigatory stop. They argue that the trial court should have suppressed evidence obtained during a search of a vehicle because the stop was not based on probable cause or reasonable suspicion of criminal activity. Appellants also argue that their continued detention was improper. We affirm. Facts On March 1, 1995, appellants Richard Earl Ulrich and Ozzie George Jones were charged with second-degree burglary and theft of property for an offense taking place on April 30, 1995. These charges were based on evidence a police officer seized after stopping their vehicle at approximately 4:00 a.m. on April 30. At the omnibus hearing, the trial court denied appellants' motion to suppress evidence (stolen money, burglary tools, and statements to officers made after the stop) on the ground that there was not probable cause or reasonable suspicion for the investigatory stop. The trial court reserved judgment on appellants' challenge of the length of their detention. After a continued omnibus hearing, the court also denied that motion. Pursuant to State v. Lothenbach,(1) [Footnote] (1)Under Lothenbach, a criminal defendant may seek to expedite appellate review of a pretrial evidentiary ruling by stipulating to the state's case and waiving a jury trial. State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). appellants stipulated to the following facts but maintained their objections to the constitutionality of the stop and the length of detention: The facts being stipulated to are that on April 30, 1995, both Defendants, Ozzie George Jones and Richard Earl Ulrich, were in the City of Staples, Todd County. That they took $948.00 from the VFW Club. The money belonged to the VFW Club, and that is also in the City of Staples, County of Todd, and they had the intent to keep and use the property for themselves and they had no permission from the VFW to take the property.(2) [Footnote] (2)The state claims that this goes beyond the usual Lothenbach stipulation, and arguably renders the trial court's rulings harmless beyond a reasonable doubt. The state concedes that, in entering the stipulation, appellants and the state intended to follow the Lothenbach procedure. The trial court found appellants guilty of theft and (on motion of the state) dismissed the burglary charges. The trial court sentenced Jones (who had a criminal history score of seven) to 29 months and Ulrich (who had a criminal history score of six) to 26 months, fined both $1,000, and ordered them to pay restitution. In this appeal, appellants challenge the validity of the initial investigatory stop as well as the length of the detention. Decision I. Validity of Stop Appellants argue that the evidence obtained during the search of their vehicle should have been suppressed because the investigatory stop was improper. In order to stop a car to check the driver's license or the vehicle's registration, the police officer must have an articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401 (1979). The trial court concluded that the officer had a reasonable and articulable suspicion: Officer Case observed a suspicious vehicle driving away from the west parking lot of the Burlington Northern Depot. * * * [T]he vehicle was observed at 4:00 a.m. in an area that had experienced thefts and recent vandalism. The experienced veteran officer saw the car stopped in an empty parking lot, then leave. The car stopped again and the officer observed activity outside the car, then saw the driver and passenger get into the vehicle and move away again. This was at a time when almost no other people or traffic were in the area. Officer Case specifically articulated why he did not believe the driver and passenger to be railroad workers. Had Officer Case believed the persons he observed to be railroad workers, that would have sufficiently explained their presence and made their actions unsuspicious. Once he concluded that the persons were not railroad workers, he had no explanations for their suspicious behavior. Added to all of this, Officer Case knew that the vehicle was registered to someone from outside of the Staples area. Appellants argue that the officer did not have a reasonable and articulable suspicion because: (1) they were not in an area known for a specific criminal activity; (2) the officer conceded that there was nothing unusual about a vehicle registered to a person in Duluth being in Staples; and (3) the officer stopped the vehicle because he had a suspicion that its occupants were not railroad workers, and ``[a]n officer's hunch regarding appellants' occupation is not an adequate legal basis for a stop.'' Appellants cite two cases in which the reviewing court held that the investigatory stop was invalid. See State v. Johnson, 257 N.W.2d 308 (Minn. 1977); City of St. Paul v. Uber, 450 N.W.2d 623 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990). Unlike in Johnson, the officer in this case was able to articulate why he became suspicious of the vehicle: (1) the car was in an area where there had been recent burglaries and vandalism; (2) the car was in the railroad parking lot, but appellants did not appear to be railroad workers; (3) the owner of the vehicle was from Duluth; and (4) appellants got out of the car and went to the trunk, which the officer considered ``suspicious.'' See Johnson, 257 N.W.2d at 308 (officer unable to articulate why he became suspicious of vehicle). Thus, Johnson is clearly distinguishable from this case. Uber was a ``profile stop'' case. This case, however, is not a ``profile stop'' case, i.e., a stop based on a bundle of observations of traits or behaviors that are supposedly characteristic of people committing certain crimes. In fact, it is the opposite of a profile stop case one of the bases for the stop was that appellants' behavior was not consistent with the characteristics of law-abiding citizens, i.e., the railroad workers, and thus the officer's suspicions were aroused. In addition, unlike in Uber, appellants were not in a high-traffic area, and in this case there was the ``suspicious'' behavior. Thus, Uber is also distinguishable. We conclude that the officer had an articulable and reasonable suspicion to stop appellant's vehicle. II. Propriety of Continued Detention Appellants were detained for 57 minutes. Appellants argue that their detention after the initial stop was unreasonably long. There is no bright-line rule regarding the reasonableness of the length of detention. State v. Moffatt, 450 N.W.2d 116, 119 (Minn. 1990). The reasonableness depends on the facts and circumstances of the particular case. Id. The fact that the police might have investigated the case in a different way that would have taken less time does not mean that the police acted unreasonably. Id. Appellants argue that their Fourth Amendment rights were violated because they were detained beyond the time of the initial investigative questions. They claim that once they answered the officer's questions regarding what they were doing in Staples at that hour, and why the car was registered to someone in Duluth, they should have been free to go.(3) [Footnote] (3)Appellants also argue that the officer went beyond the scope of a pat-down search for weapons and opened the film canister he pulled out of Ulrich's jacket pocket (which contained marijuana). The state argues that because Ulrich was not charged with possession of marijuana, this argument is not relevant to this appeal. We agree. In addition, appellants consented to the search of the inside of the car, which made that search valid. The state notes that, while talking to the officer, Ulrich consented to a search of the vehicle. The state argues that it would not have made sense to free appellants while the officer conducted the search. The state also argues that, because the search produced the money bag, the officer's suspicions increased, especially when appellants gave inconsistent explanations for the money. In Moffatt, the Minnesota Supreme Court held that a 61-minute detention was reasonable under the circumstances. Appellants correctly note that in this case, unlike in Moffatt, there was no report of a recently committed crime. Appellants also argue that Ulrich immediately provided a reasonable explanation for being in the area of the depot. Unlike in Moffatt, the police in this case discovered things in the area of the stop that aroused their suspicions the money bag and the inconsistent explanations for it. This led them to suspect a burglary and check to see if indeed a burglary had just occurred.(5) [Footnote] (5)The vehicle was stopped at about 4:03 a.m. by Officer Case. Officer Burns arrived at approximately 4:08. Officer Case requested that officers search the area where the vehicle was first spotted at about 4:29 a.m. At about 5:00 a.m., Ulrich consented in writing to a search of the vehicle, and the police found burglary tools in the trunk. At about the same time (it is disputed whether it was before or after the written consent), the police chief reported that the VFW had been broken into. This activity is proper for a Terry stop. See State v. Pleas, 329 N.W.2d 329, 333 (Minn. 1983) (in the course of a Terry stop, a suspect may be detained while it is determined if an offense has occurred in the area). Because the police discovered evidence shortly after the stop that made them very suspicious that appellants had just burgled (the money bag and the inconsistent explanations), it was permissible for the police to spend a certain amount of time to determine if an offense had occurred in the area. Affirmed.