State of Minnesota, Respondent, vs. Trevor Joseph Wunderlich, Appellant.

State of Minnesota, Respondent, vs. Trevor Joseph Wunderlich, Appellant. A04-1102, Court of Appeals Unpublished, August 23, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1102 State of Minnesota,
Respondent,
 
vs.
 
Trevor Joseph Wunderlich,
Appellant.

 

Filed August 23, 2005

Affirmed

Stoneburner, Judge

 

Chisago County District Court

File No. KX03997

 

Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Katherine M. Johnson, Chisago County Attorney, Daniel R. Vlieger, Assistant County Attorney, Chisago County Government Center, Room 373, 313 North Main Street, Center City, MN 55012 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge, Stoneburner, Judge, and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Following a Lothenbach trial, appellant Trevor Joseph Wunderlich was convicted of being an ineligible person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2002).  On appeal, he argues that the district court erred by denying his motion to suppress evidence of the firearm because it was discovered as a result of an impermissibly expanded traffic stop.  Because the officers had reasonable articulable suspicion to expand the scope of the stop, we affirm.

FACTS

 

At approximately 11:40 p.m. on June 3, 2003, Officer Jackie Karels of the Wyoming Police Department advised Corporal R.S. Berg of the Chisago County Sheriff's office that she had received a tip of an imminent drug deal to occur near the Stacy Conoco/IGA.  The information Karels possessed indicated that a person named "Trevor," who was possibly in possession of a stolen handgun, was en route from the Rush City area to deliver one pound of marijuana to an unknown person at the Stacy IGA.  The informant said Trevor might be accompanied by a second individual who was not described.  Berg relayed this information to Chisago County Deputy Sheriff Tim Sittlow.

            Sittlow proceeded toward Stacy from North Branch.  He saw appellant's vehicle exiting Interstate 35 into Stacy.  The IGA is right around the corner from the Stacy off-ramp.  Sittlow noticed that appellant's windshield was cracked and his right taillight was cracked and emitting white light.  Sittlow stopped appellant on the shoulder of the off-ramp just before midnight for these equipment violations.  Appellant does not challenge the legality of the initial stop.

            Sittlow asked appellant for his driver's license and proof of insurance.  Appellant identified himself as Trevor Joseph Wunderlich and said that he did not have his driver's license or proof of insurance with him.  Appellant's passenger identified herself as Dakota Rae Bue and stated that she did not have a driver's license with her.  From his squad car, Sittlow checked the registration of the vehicle and learned that it was registered to Sean Cable.  Sittlow questioned appellant about the registration, and appellant said he bought the vehicle a month earlier and had transferred the title.

            Sittlow returned to his squad car and checked appellant's record.  He learned that appellant had several traffic violations, including a license revocation for possession of a controlled substance in February 2002, as well as a violation for giving false information to a police officer in April 2002.  But appellant had a current, valid driver's license and no outstanding warrants.  Sittlow then asked appellant for some identification with his name on it, and appellant gave him a sport-shooting card.  Sittlow asked about insurance and appellant stated that Progressive insured the vehicle and that the insurance was either in his name or his mother's name.  Sittlow advised appellant that he planned to contact the insurance company to verify that the vehicle was insured.

            Karels and Berg both came to the scene of the stop.  Berg recognized Bue as having been involved in controlled-substance violations in Pine City and Pine County.  The Minnesota State Patrol was contacted to bring a narcotics-sniffing dog to the scene while Sittlow completed his paperwork and Berg attempted to contact Progressive to verify insurance coverage.

            Berg made contact with Progressive and verified coverage at approximately 12:50 a.m.  Trooper Frisby arrived with a drug-sniffing dog at approximately 1:00 a.m.  After appellant refused consent to search the vehicle, Frisby walked the dog around the vehicle.   The dog alerted to the passenger door.  Appellant and Bue were asked to step out of the vehicle.  As appellant stepped out of the driver's side, Sittlow observed what appeared to be a handgun case partially exposed underneath the seat near the floor mat.  Appellant was handcuffed and pat searched.  Sittlow recovered a Smith and Wesson .44 Magnum revolver from the handgun case.  Suspected methamphetamine and drug paraphernalia were recovered from two handbags located inside the vehicle.

            Appellant was charged with being an ineligible person in possession of a firearm.  He moved to suppress evidence of the firearm, arguing that it was discovered as a result of an illegal search and seizure.  The district court denied the motion to suppress, and appellant agreed to a court trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found appellant guilty and sentenced him to 60 months.  This appeal followed.

D E C I S I O N

 

            "[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed."  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  Generally, officers may conduct investigative stops so long as they have a particularized basis for suspecting criminal activity.  State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999).  Courts have not imposed a rigid time limit on the permissible duration of a detention that follows a lawful stop.  State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993).

            Generally, detention of the person stopped may continue only as long as reasonably necessary to effectuate the purpose of the stop.  Id.  Any expansion of the scope or duration of an investigative stop is proper only when the officers have a reasonable, articulable suspicion of other criminal activity.  State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002).[1]

            Appellant asserts that the detention in this case "was a thin veil to disguise the officers' deliberate attempt to delay . . . in order to investigate a possible drug transaction."  And appellant dismisses the tip about a possible drug deal as amounting only to a "mere hunch."  We agree that the anonymous tip in this case was not sufficient to justify the stop of appellant's vehicle, but we disagree with the suggestion that the officers could not consider the tip in evaluating whether there was reasonable, articulable suspicion that appellant might possess drugs. 

            In the context of evaluating probable cause for the issuance of a search warrant, case law establishes that even though an anonymous tip is not sufficient to give rise to probable cause, the tip may be sufficiently corroborated to provide the required probable cause.  Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 2329 (1983) (rejecting a rigid approach to evaluation of reliability of tips to establish probable cause for issuance of warrant in favor of a totality-of-the-circumstances test that evaluates an anonymous tip plus information corroborating the tip).  And in Alabama v. White, the United States Supreme Court upheld an investigative stop and subsequent request for consent to search for cocaine based on an anonymous tip.  496 U.S. 325, 110 S. Ct. 2412 (1990).[2]  In that case, police made a Terry-stop of a vehicle after receiving an anonymous phone tip that the defendant would leave a particular apartment in a particular vehicle, would be going to a named motel, and would be in possession of an ounce of cocaine in an attaché case.  Id. at 327, 110 S. Ct. at 2414-15.  The Supreme Court indicated that the tip, standing alone, would not be sufficient grounds for a stop because it indicated nothing about the informant's credibility or basis of knowledge.  Id. at 329, 110 S. Ct. at 2415-16.  But the Court concluded that the information in the tip had been "sufficiently corroborated to furnish reasonable suspicion" by the time the stop was made.  Id. at331, 110 S. Ct. at 2416.  The Court noted:

What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information [that] . . .[t]he general public would have no way of knowing . . . . [I]t is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities.

 

Id. at332, 110 S. Ct. at 2417. 

            In this case, Sittlow, who was on his way to investigate the tip, legally stopped a car that was, within the time frame provided by the tipster, traveling in the direction predicted by the tipster; driven by a person named "Trevor," which was consistent with the tip; toward the nearby IGA, the predicted site of a drug deal.  These factors that corroborated the anonymous tip constituted more than a mere hunch or whim and supported Sittlow's reasonable suspicion that appellant could be involved with drugs. 

Berg then arrived at the scene and provided the further information that Bue was known to be involved with controlled substances.  The officers were also aware that appellant had previously lost his license due to some involvement with drug-related activity.  Although knowledge of a person's past arrests or past criminal convictions cannot serve alone as the basis for reasonable suspicion, see United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994), an individual's prior conduct or record combined with other factors may create reasonable suspicion.  See, e.g., United States v. Chamberlin, 644 F.2d 1262, 1265 (9th Cir. 1980) (holding that knowledge of criminal record, combined with suspect looking worried, quickening pace, and beginning to run from officer, supported reasonable suspicion).  The test is whether the totality of the circumstances and rational inferences available from the known facts would permit a reasonable, articulable suspicion.  See, e.g., State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998) (agreeing with district court's conclusion that factors in combination created reasonable suspicion, although none of the factors was "independently suspicious").

Under the totality of the circumstances, we conclude that the officers had reasonable, articulable suspicion that the occupants of the vehicle could be involved in drug-related activities justifying the expanded duration and scope of the initial stop to include the use of a drug-sniffing dog.  Because the stop was not impermissibly extended, the district court did not err in denying appellant's motion to suppress.

            Affirmed.

[1] The Minnesota Supreme Court recently issued its decision in State v. Carter, 697 N.W.2d 199 (Minn. 2005), in which the court held that a drug-detection sniff outside of a self-storage unit is a search within the meaning of the Minnesota Constitution.  697 N.W.2d at 211.  We see nothing in Carter that abrogates Wiegand's holdings that a drug-sniff outside of a lawfully stopped vehicle is not a search requiring probable cause under either the Fourth Amendment or the Minnesota Constitution, but that reasonable suspicion of drug-related criminal activity is required before conducting a drug-detection sniff.  645 N.W.2d at 133, 137.  And, under Carter, which required only reasonable, articulable suspicion before conducting such a drug-detection sniff outside of a self-storage unit, rather than probable cause, 697 N.W.2d at 211, the level of suspicion required remains something less than probable cause.

[2] The information passed from officer to officer in this case is similar to an anonymous telephone tip.  The record contains no information as to where or how Officer Karels obtained the information, such as from a confidential reliable informant.