State of Minnesota, Appellant, vs. Joshua Rickert Portnoy, 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This opinion will be unpublished and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

A03-1809

State of Minnesota,

Appellant,

vs.

Joshua Rickert Portnoy,

Respondent.

Filed May 4, 2004

Reversed

Lansing, Judge

Dakota County District Court

File No. KX-03-1765

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

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)

Robert V. Jones, Carlson & Jones, P.A., 11674 Wayzata Boulevard, Minnetonka, MN 55305 (for respondent)

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The Dakota County Attorney charged Joshua Portnoy with fleeing or attempting to flee a peace officer acting in the lawful discharge of duty.  At a contested omnibus hearing, Portnoy maintained that an officer dispatched on a 911 call reporting a domestic altercation did not have a constitutionally justified basis for the stop of Portnoy's car.  Our independent review of the undisputed facts leads us to conclude that the officer was in possession of specific, articulable facts that, together with reasonable inferences, provided an objective basis for suspicion of criminal activity, and we reverse.

F A C T S

            Two Burnsville police squads responded to a dispatcher's transmission of a "domestic between an intoxicated female and [an] intoxicated male" at 13745 Heather Hills Drive.  The Burnsville officer who was driving one of the squad cars testified at the omnibus hearing that both squads arrived at the address at 1:08 a.m., nine minutes after the 911 call to the dispatcher.

The residence at 13745 Heather Hills Drive is a townhouse among a group of about fifteen townhouses constructed side by side with front-facing garages around a U-shaped, paved, common parking area.  The officer parked in front of the address, on the right of the U-shaped parking area.  As the officer got out of her squad she heard a vehicle start its engine.  She sighted the vehicle on the left of the parking area, about fifty feet away from the townhouse where the call had originated.  She shined her flashlight on the car and observed one occupant, a male she estimated to be twenty years old.  The officer saw no other activity in the area, and the car she was observing was the only occupied car in the parking area at this early morning hour.

            The officer walked toward the car and observed the driver begin to back the car out of its parking spot.  When the officer was about twenty feet from the car, the driver stopped.  The officer continued to walk toward the car to get the license number which she then transmitted to dispatch on her handheld radio to obtain the name of the car's owner.  The officer's partner, walking behind her, was at the same time attempting to obtain from dispatch the name of the man involved in the domestic altercation. 

As the officer continued toward the car, it began to move forward.  The officer believed that the driver was possibly the male involved in the domestic altercation and told him to stop.  The driver stopped and the officer approached the driver's side of the car, identified herself as a police officer, and asked the driver where he had come from.  The driver pointed in the direction of the townhouse at 13745 Heather Hills Drive, and the officer asked him if he had been in any type of a fight there.  The driver said that he had not.

While the officer was standing by the driver, dispatch sent a message over the radio that the male involved in the domestic had left the residence and that the female believed he was leaving in a blue Chevy Cavalier.  The car the officer had stopped was a blue Pontiac Bonneville.  The officer asked the driver to step out of the car.  At that point the driver put the car in drive and drove off at a high rate of speed. 

Dispatch broadcast a description of the car and its license plate number.  A short time later the car was located at a nearby construction site, unoccupied and up on a curb, with a flat front tire on the driver's side.  When the car was impounded, police found a bill of sale listing Joshua Portnoy as the purchaser.  The officer obtained Portnoy's photo from the department-of-motor-vehicles website and identified him as the man who had driven off.  Portnoy was arrested later that morning and charged with fleeing a police officer.  In their investigation police confirmed that Portnoy was not the male involved in the domestic altercation.  But Portnoy had been present in the townhouse and left about the time of the 911 call.

Following a contested omnibus hearing on the issue of the legality of the stop of Portnoy's car, the district court issued an order dismissing the charge for lack of probable cause.  The state moved for reconsideration, pointing out that the only contested omnibus issue was whether the stop violated Portnoy's constitutional rights and requesting an opportunity to be heard on the probable cause issue.  The district court granted the motion to reconsider and issued an order finding that the stop was unconstitutional.  The state, in this pretrial appeal, challenges that ruling.

D E C I S I O N

To obtain reversal of a pretrial suppression order the state must show that the district court's ruling was clearly erroneous and that the error will have a critical impact on the outcome of the trial.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  When the facts are not in dispute, the legality of a seizure is a question of law, which we independently review.  State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001).  The state concedes that the stop of Portnoy's car constituted a seizure; Portnoy acknowledges that the decision will have a critical impact on the outcome of the trial.

The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10; Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 1446 (1960); State v. Richards, 552 N.W.2d 197, 203 (Minn. 1996).  A brief investigatory stop by police is constitutionally permissible if it is supported by a reasonable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21-22, 27, 88 S. Ct. 1868, 1880, 1883 (1968).  Such an investigatory seizure is lawful "if the state can show the officer to have had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.'"  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). 

A valid investigative seizure must be based on specific and articulable facts that, along with rational inferences from those facts, reasonably warrant the intrusion, but it need not be based on an actual violation of the law.  Pike, 551 N.W.2d. at 921-22.  A reasonable, articulable suspicion requires a showing that the stop was not the result of "mere whim, caprice or idle curiosity." Id. at 921.  To determine whether a stop is justified, we consider the totality of the circumstances and take into account that trained law enforcement officers make inferences and deductions that extend beyond those of an untrained person.  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).

            Minnesota has recognized that investigative stops may be necessary to freeze a situation in order to develop necessary information about a recently committed criminal offense.  Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 109 (Minn. 1987).  Relying on factors isolated by Professor LaFave, 3 Wayne LaFave, Search and Seizure § 9.3(d) at 461 (2nd ed. 1987), the court listed six considerations to apply in these situations:  (1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender may be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons in that area; (4) the known or probable direction of the offender's flight; (5) any observed activity of the person stopped; and (6) knowledge or suspicion that the person or vehicle has been involved in criminality of the type presently under investigation.  Id. at 108-09.

            The district court relied on the Appelgate factors in concluding that the seizure of Portnoy was constitutionally impermissible but applied a rather constricted rendition of the facts to the Appelgate factors.  The court found that the only Appelgate factor that was satisfied was the third factor, the number of persons in the area.  The court found that this factor, alone, could not support the seizure.  The state reasonably argues that the facts would also satisfy the second factor, the size of the area in which the offender might be found as indicated by such facts as the elapsed time since the crime occurred; and the fourth factor, the known or probable direction of the offender's flight, assuming that the offender might flee.

Significantly, neither the Appelgate decision nor LaFave suggests that these factors are exclusive or should all be accorded equal weight.  See Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988) (listing Appelgate factors as factors "among others" to be considered).  In this case, in addition to the Appelgate factors, the officer observed that the person leaving was alone, which would be the likely circumstance if a person involved in a domestic altercation were leaving a residence.  The officer also attached particular significance to the fact that the 911 call had been made only nine minutes before she saw the car preparing to depart at around 1:00 a.m.  At this early morning hour when no other persons or cars were moving in the area, the officer reasonably ranked proximity, both in time and place, as a pre-eminent factor.  We have previously upheld seizures applying the Appelgate analysis when the seizure occurred "early in the morning, the officer arrived on the scene promptly, there was no other traffic, and [a vehicle] pulled away from a location near the reported assault."  Purnell v. Comm'r of Pub. Safety, 410 N.W.2d 439, 441 (Minn. App. 1987).  Appelgate emphasizes LaFave's observation that there are "‘cases where the number of persons about in the area is so small that a stopping for investigation may be made without any description whatsoever.'"  Appelgate, 402 N.W.2d at 108 (quoting LaFave at 470).

The "touchstone of the Fourth Amendment is reasonableness."  Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803 (1991) (citing Katz v. Davis, 389 U.S. 347, 360, 88 S. Ct. 507, 516 (1967)).  Reasonableness, in turn, is measured in objective terms by evaluating the totality of the circumstances.  The totality of the circumstances includes the officer's seeing the car with only one occupant, pulling away from the curb, fifty feet from the address where the 911 call originated, in the early hours of the morning in an area with no other foot or vehicle traffic.

Because our independent review of the undisputed facts establishes that the officer was in possession of specific, articulable facts that, together with rational inferences from those facts, provides an objective basis for suspicion of criminal activity, we conclude that the investigative seizure did not violate Portnoy's Fourth Amendment rights, and we reverse.

            Reversed.