State of Minnesota, Appellant, vs. Richard Adam Carlson, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-225

 

State of Minnesota,

Appellant,

 

vs.

 

Richard Adam Carlson,

Respondent.

 

Filed December 9, 2003

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 01095761

 

Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101; and

 

Jay M. Heffern, Minneapolis City Attorney, Paula J. Kruchowski, Assistant City Attorney, 333 South 7th Street, Suite 300, Minneapolis, MN  55402 (for appellant)

 

Pamela M. Cecchini, 15120 Cimarron Way, St. Paul, MN  55068 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            This appeal from a pretrial order suppressing evidence and dismissing DWI charges against respondent Richard Carlson has been remanded by the supreme court for reconsideration in light of that court's decision in State v. Henning, 666 N.W.2d 379 (Minn. 2003).  We affirm.

FACTS

            The vehicle Carlson was driving was stopped by police on November 18, 2001, immediately after exiting Interstate 35W.  The car bore WZ special-series license plates.  The police report, which the parties stipulated to as the factual record on which the Fourth Amendment issue would be decided, summarized the facts preceding the stop as follows:

·                    [We were southbound] on 35W just north of the 46th St. exit.

·                    [We] [s]aw the listed vehicle in the right lane one car length in front of our squad.

·                    We were in the lane to the right of the suspect vehicle.

·                    I noticed the vehicle was displaying WZ plates indicating prior DWI arrests (169A.60).

·                    The vehicle's driver looked at us as we were slowly passing him.

·                    The vehicle then slowed its speed and fell behind us.

·                    I slowed my speed from 65 mph to 55 mph.

·                    The vehicle stayed behind us and continued to do so as I dropped my speed down to 50 mph.

·                    The vehicle began to exit off of 35W onto 46th St.

·                    I slowed up enough to get behind the vehicle and activate my red lights.

 

            Carlson made a motion to dismiss the charges, challenging the legality of the stop, as well as the constitutionality of Minn. Stat. § 168.0422 (2000), which authorizes stops of vehicles with WZ special-series plates.  The district court granted the defense motion, ruling that the statute is unconstitutional.

          This court reversed the district court order.  The supreme court, however, granted further review and stayed the appeal pending its decision in Henning.  State v. Carlson, CX-02-225 (Minn. App. Aug. 7, 2002), review granted and stayed (Minn. Sept. 17, 2002).  The supreme court in Henning subsequently held that Minn. Stat. § 168.0422 is unconstitutional and that "special series plates may not provide the sole justification for a stop."  State v. Henning, 666 N.W.2d 379, 386 (Minn. 2003).  This case has been remanded for further consideration in light of that opinion. 

D E C I S I O N

            An investigative stop requires reasonable, articulable suspicion of criminal activity.  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).  In reviewing a district court's determination of the legality of an investigative stop, we review questions of reasonable suspicion de novo.  State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).  Reasonable suspicion must be assessed on the totality of the circumstances.  Henning, 666 N.W.2d at 385.  The vehicle's display of WZ special-series plates may be considered as only one factor in the totality of the circumstances.  Id.

            The state argues that Carlson's driving conduct, as outlined in the police report, constituted "evasive conduct" providing a reasonable, articulable suspicion supporting the stop.  See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (holding that driver's conduct in pulling off the highway after making eye contact with the officer, pulling into a driveway, and then re-emerging onto the highway, provided a reasonable, articulable suspicion).  But the police report here merely details the behavior of a driver slowing down and allowing a squad car to pass him so that he could move into the right lane to turn off onto the 46th Street exit.

            The evasive conduct in Johnson consisted of three separate maneuvers:  (1) pulling off the highway as soon as the driver saw the officer; (2) pulling into a driveway; and (3) re-emerging onto the highway in a "very short time."  Id. at 825.  That driving conduct was far more evasive than Carlson's.  And in another case cited by the state, the driver pulled into the first available driveway, then immediately turned off his headlights even though the driveway was fairly long.  State v. Petrick, 527 N.W.2d 87, 87 (Minn. 1995).  In that case, there were two maneuvers, at least one of which (extinguishing the headlights prematurely) was sufficiently unusual to attract attention.

            We recognize that even conduct innocent in itself may justify a suspicion of criminal activity.  Johnson, 444 N.W.2d at 826.  But here the arresting officer did not testify at the omnibus hearing, and therefore we are left with no articulation of "why [the arresting officer] became suspicious of the vehicle" when Carlson slowed down and changed lanes before exiting Interstate 35W.  See id. at 827 (noting that officer was able to articulate basis for his suspicion at omnibus hearing).  Although the police report states that Carlson looked at the squad car as it passed to his right, any careful driver seeking to change lanes before exiting the freeway would have done the same.

            Thus, based on this record, the stop of the vehicle Carlson was driving was based on the decision of a driver whose car displayed WZ license plates to exit the freeway at the same time a police squad car passed by.  These facts, although grounds for a "hunch" on which police acted, were not sufficient to support a reasonable, articulable suspicion of criminal activity allowing police to lawfully stop Carlson's vehicle.  See State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (holding that stop must be based on more than a "mere hunch").

            Affirmed.