State of Minnesota, Respondent, vs. Daniel Michael Watry, 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This opinion will be unpublished and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

A03-530

 

 

State of Minnesota,

Respondent,

 

vs.

 

Daniel Michael Watry,

Appellant.

 

 

Filed December 23, 2003

Affirmed

Halbrooks, Judge

 

 

Nobles County District Court

File No. K2-02-675

 

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

 

Gordon L. Moore, III, Nobles County Attorney, William A. Lemons, Assistant County Attorney, 1530 Airport Road, Suite 400, Worthington, MN 56187 (for respondent)

 

Daniel C. Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

 

 

 

            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Daniel Watry challenges his convictions of two counts of third-degree driving while impaired under Minn. Stat. § 169 A. 20, subd. 1(1), (5) (2002), arguing the officer did not have a reasonable, articulable suspicion of criminal activity sufficient to justify the stop of appellant's vehicle.  We affirm.

FACTS

            At 12:30 a.m. on November 1, 2002, Nobles County Deputy Sheriff Kristi Honermann observed the headlights of appellant's vehicle go off while it was stopped on the side of a secondary, gravel road.  As Officer Honermann got within 15 feet of the vehicle in her marked squad car, the vehicle's operator turned on the headlights and began to drive away.  Officer Honermann activated her squad's overhead light bar, and appellant stopped and got out of his vehicle.  Appellant stated that he was checking his crops and urinating, and he admitted that he had been drinking.  Because Officer Honermann observed indicia that appellant was intoxicated, she placed him under arrest for driving while impaired.

            Prior to trial, appellant moved to suppress the chemical test results on the ground that Officer Honermann lacked a reasonable, articulable suspicion to stop his vehicle.  The officer testified at the omnibus hearing that she initially approached the vehicle because she was concerned that there might be mechanical problems or something wrong with the driver.  When the vehicle began to drive off, Officer Honermann stated that she was concerned for the driver and wondered whether the driver was doing something wrong or illegal.  Officer Honermann testified that, in her experience, appellant's conduct was "unusual."  The district court denied the motion.

            Pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), appellant pleaded not guilty, stipulated to the facts, and agreed to a bench trial.  The district court found appellant guilty of two counts of third-degree driving while impaired in violation of Minn. Stat. § 169 A. 20, subd. 1(1), (5) (2002).  The court conditionally stayed imposition of sentence pending appeal. 

D E C I S I O N

            Appellant argues that the district court erred by denying his motion to suppress his chemical test results because Officer Honermann did not have a reasonable, articulable suspicion of criminal activity sufficient to justify the stop of his vehicle.  "When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing or not suppressing the evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  This court is bound by the district court's findings of fact unless they are clearly erroneous.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

            Investigatory motor-vehicle stops implicate the federal and state constitutional right to be free from unreasonable seizures.  State v. McKinley, 305 Minn. 297, 303, 232 N.W.2d 906, 910 (1975).  "Articulable, objective facts that, by their nature, quality, repetition, or pattern become so unusual and suspicious that they support at least one inference of the possibility of criminal activity, are . . . necessary to justify an investigatory stop of a motor vehicle."  State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001), review denied (Minn. July 24, 2001).  A stop cannot be based on "mere whim, caprice or idle curiosity."  State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996). 

            The reasonableness of an investigatory stop depends on a balancing of the need for the stop against the invasion that it entails.  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879 (1968).  An investigatory stop is necessary when the totality of the circumstances points to some observable "unusual conduct . . . [that leads the officer] reasonably to conclude in light of [her] experience that criminal activity may be afoot."  Id. at 30, 88 S. Ct. at 1884.  Such circumstances include "the officer's general knowledge and experience, the officer's personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant."  Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  The officer must articulate specific facts that, "taken together with rational inferences from those facts," reasonably justify the stop.  Terry, 392 U.S. at 21, 88 S. Ct. at 1880.  The officer need not be absolutely certain of the possibility of criminal activity, but she cannot satisfy the test of reasonableness by relying on an "inchoate and unparticularized suspicion or ‘hunch.'"  Id. at 27, 88 S. Ct. at 1883.  Nor will the officer's subjective good-faith belief suffice.  Id. at 22, 88 S. Ct. at 1880.  Yet, the threshold required to support a stop is very low, and an actual violation is not necessary.  State v. Lopez, 631 N.W.2d 810, 814 (Minn. App. 2001), review denied (Minn. Sept. 25, 2001).  Sometimes even lawful conduct can provide the suspicion that criminal activity is afoot.  United States v. Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 1586 (1989).

            Appellant argues the investigative stop of his vehicle was unwarranted and unreasonable under the Fourth Amendment and article I, section 10 of the Minnesota Constitution.  Appellant asserts that because Officer Honermann did not articulate a basis to believe that appellant was acting unlawfully, except for the fact that appellant might have been trying to avoid her, Officer Honermann was only acting on a hunch that appellant might be violating the law. 

            An officer's reasonable inference of evasive conduct by itself is enough to justify a brief investigative stop "if the driver's conduct is such that the officer reasonably infers that the driver is deliberately trying to evade the officer and if, as a result, a reasonable police officer would suspect the driver of criminal activity."  State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (upholding stop where driver made "quick turn" off highway seconds after looking trooper "in the eye," doubled back, and returned to highway); see also State v. Petrick, 527 N.W.2d 87, 87 (Minn. 1995) (upholding stop when after police car began following him, driver turned into first available driveway, immediately shut off car lights, and continued to proceed down "fairly long driveway").  But see Schrupp, 625 N.W.2d at 848 (finding no reasonable, articulable suspicion when male driver, who was driving a car registered to a woman in another city, quickly turned into private driveway so that officer believed driver was evading him, and male driver spoke briefly with person in driveway).

            The question here is not whether Officer Honermann's suspicion was genuine; rather, the question is whether the suspicion was objectively reasonable.  See Britton, 604 N.W.2d at 88.  As the district court noted, this is a very close call.  Deference should be given to police officer training and experience.  Id. at 88-89.  When looking at the totality of the circumstances, it was reasonable for Officer Honermann to infer appellant was trying to evade her and to suspect that there might be criminal activity involved.  We agree with the district court that a court "will not uphold stops every time a marked patrol car approaches a stopped vehicle and it drives away because not every such situation will warrant an intrusion."  But here, when it was late at night on a secondary gravel road, and a stopped vehicle left with the approach of a marked police car, the officer had a reasonable basis for a stop.

            Affirmed.