State of Minnesota, Respondent, vs. Raymond Alvin Siemer, Appellant.

This opinion will be unpublished and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

A03-183

 

 

State of Minnesota,

Respondent,

 

vs.

 

Raymond Alvin Siemer,

Appellant.

 

 

Filed September 23, 2003

Affirmed

Anderson, Judge

 

Brown County District Court

File No. K1-02-405

 

 

C. Thomas Wilson, Peter D. Favorite, Gislason & Hunter LLP, 2700 South Broadway, P.O. Box 458, New Ulm, MN  56073-0458 (for appellant)

 

Mike Hatch, Attorney General, 535 Park Street, Suite 500, St. Paul, MN  55103; and

 

Roger H. Hippert, Assistant New Ulm City Attorney, P.O. Box 214, New Ulm, MN  56073 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge; Harten, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

Appellant challenges his convictions for driving under the influence of alcohol and driving with an alcohol concentration level of 0.10 or more.  Appellant maintains that the arresting officer did not have a reasonable, articulable suspicion to stop appellant's vehicle and that the officer did not have probable cause to enter appellant's garage to arrest him.  The district court found that probable cause existed for the stop of appellant's vehicle and found appellant guilty.  We affirm.

FACTS

 

            On April 24, 2002, at approximately 1:30 a.m., Officer Chris Moellenhoff of the New Ulm Police Department was on patrol when he noticed appellant Raymond Siemer's pick-up truck in the area of Broadway and Fourth North Street in New Ulm.  As appellant made a left-hand turn onto Fifth Street, Moellenhoff observed appellant's "pickup truck make a sharp jerk," nearly hitting the median.  Moellenhoff testified that this sharp jerk was similar to a "driver [] attempting to avoid an animal or some other item that was in the path of the vehicle," although there was no such obstruction in the roadway.

            Moellenhoff also turned left onto Fifth Street, proceeded west, and followed appellant in his marked squad car for approximately six blocks.  The officer testified that appellant was traveling between 10 and 20 miles per hour the entire time.  In addition, Moellenhoff observed that although Fifth Street is a through street with stop signs at every intersection controlling the oncoming traffic, appellant braked and slowed down at some of the intersections.  Finally, Moellenhoff testified that appellant's truck had "a slight weave to it as it continued down Fifth Street North."

            Moellenhoff stopped appellant's vehicle at what was subsequently determined to be appellant's garage.  Moellenhoff testified that he decided to stop appellant because appellant had swerved sharply, narrowly missing hitting the median; drove at a very slow speed for approximately six blocks; and looked both ways and occasionally braked at controlled intersections.  Finally, Moellenhoff acknowledged that the bars in New Ulm close at 1:00 a.m., and therefore, that a vehicle traveling at 1:30 a.m. exhibiting the characteristics stated above might indicate an impaired driver.  The officer stated that he "detected an odor of an alcoholic beverage" on appellant's breath and asked him to submit to a preliminary breath test.  Appellant ultimately agreed, testing at a 0.17 alcohol level.  Moellenhoff placed appellant under arrest for driving under the influence, and transported him to the Brown County jail.

            Although Moellenhoff conceded that it is normal for him to run a plate check when observing a suspicious vehicle, he did not do so with appellant's truck.  Moellenhoff also admitted that driving 20 miles per hour on Fifth Street is not a crime.

            The district court, following an omnibus hearing, found probable cause for the stop.[1]  Appellant agreed to submit his case for trial to the district court based on stipulated facts.  The district court found appellant guilty of driving under the influence of alcohol and driving with an alcohol concentration of 0.10 or more.  Because the offenses occurred within ten years of a prior impaired-driving incident, both crimes were second-degree offenses.  This appeal followed.

D E C I S I O N

 

I

 

            Appellant first argues that the district court erred by concluding that the investigatory stop of his vehicle was lawful.  When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine whether the district court erred in its suppression decision as a matter of law.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

            Further, "[t]he trial court's determination of reasonable suspicion as it relates to limited investigatory stops conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is reviewed de novo."  State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003).  The test is not whether the district court's decision is clearly erroneous, but whether the basis for the stop was adequate as a matter of law.  Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). 

            A limited traffic stop requires only minimal support, but the stop must not be the product of "mere whim, caprice, or idle curiosity."  State v. Dalos, 635 N.W.2d 94, 95 (Minn. App. 2001) (citation omitted).  Instead, the investigatory stop must be based on a "particularized and objective basis for suspecting the particular person stopped of criminal activity."  Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).  In other words, the stop must be based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant [the] intrusion."  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880).  The officer's assessment may be based on all the circumstances, and the officer is allowed both to draw inferences and make deductions that an ordinary, untrained individual may not make.  Appelgate, 402 N.W.2d at 108.  These circumstances can include everything the officer observes, the officer's general knowledge and experience, the nature of the offense suspected, the time, the location, and anything else that is relevant.  Id.  There is no requirement that the officer actually observe a violation of the law.  Berge, 374 N.W.2d at 733.  In fact, innocent activity may validly justify "the suspicion of criminal activity" that is necessary to authorize an investigatory stop.  State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989). 

            In this case, Moellenhoff witnessed appellant swerve sharply and narrowly miss hitting the median, weave slightly within his lane of traffic, and drive very slowly for six blocks, braking even further to check controlled intersections for on-coming vehicles.  The state contends that the cumulative amount of appellant's suspicious behavior, all occurring at 1:30 a.m., justified Moellenhoff's investigative stop of appellant, which was therefore not the product of mere whim, caprice, or idle curiosity. 

            Appellant argues, however, that Moellenhoff did not mention appellant's braking at intersections or weaving within his own lane in the police report the officer wrote approximately four hours after the incident.  Further, Moellenhoff gave no reason for this apparent oversight in the incident report.  In fact, Moellenhoff first cited the additional two actions as contributing to the suspicious circumstances leading to his decision to stop appellant during the omnibus-hearing approximately four months after the arrest.  Appellant argues that the district court should have therefore ignored Moellenhoff's omnibus-hearing testimony, and should not have considered either appellant's alleged cautious braking at intersections or alleged weaving.  If the district court would have ignored the evidence regarding the cautious breaking and weaving, appellant maintains that his single swerve and driving 10-20 miles per hour while a marked patrol car was following him would have been insufficient to support the stop.

            But appellant does not cite any authority that would require the district court to ignore Moellenhoff's omnibus-hearing testimony merely because it did not precisely match the police report.  We defer to the credibility determinations of the district court in its role as fact-finder.  See State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (holding that judging the credibility of witnesses, and the weight given to their testimony, rests within the province of the finder of fact); State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (holding that appellate courts give great deference to a fact-finder's determinations of witness credibility).  Because the district court was free to believe Moellenhoff's testimony that he observed appellant weaving and braking at controlled intersections, in addition to appellant's previously noted suspicious behavior, we hold that it was within the district court's province to rely on the totality of appellant's actions in determining whether articulable suspicion existed for the stop.

            Moellenhoff was not acting on a whim by stopping appellant.  All circumstances surrounding the stop are relevant, including the time of day in which appellant drove his vehicle.  SeeAppelgate, 402 N.W.2d at 108 (holding that time of day is relevant for an officer to analyze whether a particular activity is suspicious).  A driver at 1:30 a.m. that nearly hits a median while negotiating a turn, subsequently drives very slowly while braking to check controlled intersections, and is weaving within his lane would give a reasonable officer a particular and objective basis to suspect the person was involved in criminal activity.  The totality of appellant's driving behavior shows adequate grounds to believe criminal activity may have been afoot. 

            Appellant cites State v. Brechler, 412 N.W.2d 367, 368 (Minn. App. 1987), in which we held that a police stop was not justified based solely on a single swerve of a car that neither left the road, nor crossed the center line.  Id.  In Brechler, after the defendant swerved slightly, a marked police car followed defendant's car at about one car-length until the defendant pulled into a visibly closed gas station.  Id.  We held that the police car's close presence prompted the defendant to pull into the gas station, and thus an investigative stop had occurred.  Id. at 369.  We concluded the stop was the product of whim and caprice.  Id.

            Brechler is clearly distinguishable.  Here appellant's single swerve was followed by weaving within his lane, driving at a very slow rate of speed, and checking controlled intersections.

            Appellant next cites authority indicating that appellant's slight weaving, considered alone, is insufficient to justify an investigative stop.  In Warrick v. Comm'r Pub. Safety, 374 N.W.2d 585, 586 (Minn. App. 1985), we held that subtle weaving of a vehicle that did not cross over either the fog line or the center line did not reasonably warrant an investigative stop, especially in light of the poor weather conditions and impaired visibility.  Id. at 585.  Here, though, there is no evidence that poor driving conditions contributed to appellant's slight weaving.  In addition, Warrick can be distinguished in the same manner as Brechler: in this case, we are not dealing with an isolated act that may or may not appear suspicious to a particular individual.  Rather, the totality of appellant's suspicious acts, taken together, supported the investigative stop of appellant's vehicle.  

II

            Appellant next argues that regardless of whether Moellenhoff justifiably stopped appellant's vehicle, Moellenhoff violated appellant's Fourth Amendment rights by entering appellant's garage without a warrant and absent exigent circumstances.  The state contends that this argument is not properly before this court because appellant did not raise the issue at the omnibus hearing below.

            The state is correct that the parties were neither required to, nor did address the legality of, appellant's arrest at the omnibus hearing.  In addition, defense counsel purposely limited the scope of the omnibus hearing to whether probable cause existed for the stop of appellant's vehicle.  When the state's attorney began questioning Moellenhoff about the observations that led the officer to believe that appellant had been drinking, appellant's attorney objected to this line of questioning as beyond the scope of the issues involved in the omnibus hearing:

            MR. WILSON (appellant's attorney):  Your Honor, in regard to the hearing today, I think it's irrelevant.  The issue is probable cause for the stop, not what [Moellenhoff] observed after - -

 

THE COURT:                        All right.

 

            MR. HIPPERT (state's attorney):    All right, your Honor, we have no further questions at this time. 

 

(Emphasis added). 

            Because this issue was not litigated, the district court did not make a ruling as to whether appellant's Fourth Amendment rights were violated when Moellenhoff entered appellant's garage, without a warrant, to arrest him.  It is therefore unclear which district court ruling appellant asks this court to review for error.  This court will generally not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

            In this case, like in Roby, "[a]t the omnibus hearing there was no claim of a warrantless, domiciliary arrest."  Id.  The Roby rule indicates that generally we will not decide constitutional questions of criminal procedure that were not raised before the district court.  Roby, 547 N.W.2d at 357; see also State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  We decline to do so here.

            Affirmed.

[1] We note that although the district court found "probable cause" existed for Moellenhoff to stop appellant, the standard for an investigatory traffic stop is merely articulable suspicion.  Because the record supports a finding of articulable suspicion, Moellenhoff's stop of appellant was proper.  See discussion infra Part I.