State of Minnesota, Respondent, vs. Krista Rae Zwilling, Appellant.

State of Minnesota, Respondent, vs. Krista Rae Zwilling, Appellant. A06-328, Court of Appeals Unpublished, February 20, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-328

 

State of Minnesota,

Respondent,

 

vs.

 

Krista Rae Zwilling,

Appellant.

 

Filed February 20, 2007

Affirmed

Lansing, Judge

 

Sherburne County District Court

File No. K0-05-851

 

 

Lori Swanson, Attorney General, Thomas Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)

 

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court found Krista Zwilling guilty of second-degree test refusal and second-degree driving under the influence of alcohol.  In this appeal from conviction, Zwilling argues that the police did not have reasonable, articulable suspicion to stop her vehicle and, therefore, the evidence obtained from the stop should be suppressed.  Because we conclude that the stop was supported by a reasonable, articulable suspicion of criminal activity, we affirm.

F A C T S

            The investigative stop of Krista Zwilling's car arose from a 911 call in which a woman reported a suspicious vehicle parked in an alley between the caller's house and a church.  Dispatch received the call shortly before 3 a.m. and the caller reported that the vehicle had been parked with its lights on at that location for about an hour.  The caller provided her name, address, and phone number.

            A police officer went to investigate the vehicle at about 3 a.m.  The officer knew that, two to four months earlier, the church had sustained a "substantial burglary."  The officer also testified that the weather conditions on that April night included an "extremely heavy fog."  As the officer turned into the alley behind the church, he saw the vehicle, which the caller described as "right up next to the building," parked with its lights on facing the church.  When the officer pulled up to the vehicle, the vehicle began to back out from where it had been parked.  The officer activated his emergency lights and stopped the vehicle.

            After stopping the vehicle, the officer observed that the driver, Krista Zwilling, appeared to be intoxicated.  Based on this observation, the officer arrested Zwilling.  Zwilling was charged with second-degree test refusal and second-degree driving under the influence of alcohol. 

            Following a contested omnibus hearing, the district court denied Zwilling's motion to suppress the evidence from the stop, and the case was submitted to the district court on stipulated facts.  The district court found Zwilling guilty on both charges, and she appeals.

D E C I S I O N

            The state and federal constitutions protect against unreasonable searches and seizures.  U.S. Const. amends. IV, XIV; Minn. Const. art. I, § 10.  An investigatory stop of a vehicle is reasonable if a police officer knows of specific and articulable facts that objectively support a suspicion of criminal activity.  State v. Anderson, 683 N.W.2d 818, 822-23 (Minn. 2004).  The state has the burden of proving that a warrantless stop was reasonable.  State v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004).

            If the facts are undisputed, as they are in this case, we review de novo a district court's determination that a police officer had reasonable, articulable suspicion to stop a vehicle.  State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).  We conclude, for four reasons, that the investigating officer had a reasonable, articulable belief that Zwilling's car was involved in a burglary or similar criminal activity.

            First, the car was parked in an alley, late at night, in extremely heavy fog.  The time of day, weather, and hidden location of an individual are all factors that a reasonable officer can take into account.  See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (considering evasive actions); Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 109 (Minn. 1987) (considering time of day).  These facts all suggest that the vehicle's occupant was trying to evade detection and are consistent with a suspicion of burglary.

            Second, the vehicle was located next to the scene of a recent burglary.  An individual's presence at the scene of recent crime can create suspicion.  Olmscheid v. Comm'r of Pub. Safety, 412 N.W.2d 41, 43 (Minn. App. 1987), review denied (Minn. Nov. 6, 1987).  The caller testified at the omnibus hearing that the vehicle was "right up next to the building," and the officer testified that the vehicle was facing the church.  An individual's presence at the scene of a recent crime is even more relevant when, as in this case, other facts suggest preparation for the same crime.

            Third, the caller told the 911 operator that a car had been parked in the alley for about an hour.  The officer testified that he knew from the dispatch that the car had been parked behind the church for "quite some time."  Because the report to the dispatcher came from an identified informant who based her report on direct observation, the police could act in reliance on the report.  City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890-91 (Minn. 1988); see also Olson v. Comm'r of Pub. Safety, 371 N.W.2d 552, 555 (Minn. 1985) (indicating that collective-knowledge doctrine applies to 911 dispatchers). 

            Fourth, as the officer proceeded into the alley and began to pull up behind the car, he observed the vehicle begin to back away.  In some circumstances, an individual's decision to flee or otherwise avoid the police can be sufficient to create reasonable articulable suspicion.  See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000) (concluding, in 5-4 decision, that fleeing while in high-crime area is sufficient to justify stop).  In this case, the record does not conclusively establish that the vehicle began to back away because of the officer's presence.  Nonetheless, given that the vehicle had been parked there for an hour, a police officer would reasonably assume that the attempt to leave was in response to his presence.  If the driver was involved in a burglary, the driver would be inclined to leave once it appeared that the conduct had been detected.  Thus, because of the other facts suggesting a burglary, the vehicle's movement provided further reason for the officer to suspect that criminal activity was afoot.

            We agree with Zwilling that the use of headlights is, under the circumstances, somewhat inconsistent with a burglary.  See State v. Pike, 551 N.W.2d 919, 922 (Minn. 1996) (suggesting that stop is not justified if officer learns of facts that make his suspicion unreasonable).  But the officer testified that he did not know that the caller reported that the headlights were illuminated, only that the car had been there for quite some time.  Consequently, the officer thought "they could have just turned their headlights on moments before I got there."  The use of headlights was not so independently significant that it would negate the officer's suspicion. 

Taken together, the facts in this case were sufficient to permit a reasonable officer to suspect future or ongoing criminal activity.  See State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003) (noting that reasonable suspicion is "a lesser quantum of proof than probable cause").  We conclude that the stop was supported by reasonable, articulable suspicion and that the district court correctly denied the motion to suppress.

            Affirmed.