State of Minnesota, Respondent, vs. Garrett Veal, Appellant.

State of Minnesota, Respondent, vs. Garrett Veal, Appellant. A06-1161, Court of Appeals Unpublished, May 22, 2007.

This opinion will be unpublished and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

A06-1161

 

State of Minnesota,
Respondent,
 
vs.
 
Garrett Veal,
Appellant.

 

Filed May 22, 2007

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 06-009422

 

David K. Ross, Carson, Clelland & Schreder, Suite 305, Shingle Creek Parkway, Minneapolis, MN 55430 (for respondent)

 

Jon P. Erickson, William D. Siegel, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minnapolis, MN 55433 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of third-degree DWI, arguing that the police did not have a reasonable, articulable suspicion to stop his vehicle and that all evidence resulting from the stop should have been suppressed.  Because the district court did not err in determining that the stop was reasonable, we affirm.

FACTS

 

            At 1:15 a.m. on a January morning, the Rogers police department received a "suspicious activity call" from an employee of the Black Bear Lodge & Saloon reporting that the restaurant was closed and that someone was banging on the non-public service door in the back, which was locked for the night.  The employee requested that an officer investigate the situation.  Three officers responded and observed four people walking away from the saloon towards the nearby municipal liquor store, which shares a parking lot with the saloon.  Officer Wegner circled the building in his squad car and did not see anyone else.  As two of the people he had previously observed began to drive away, Officer Wegner activated his emergency lights and stopped the vehicle to talk with the people to see if they knew "what was going on at Black Bear." 

            Appellant Garrett Veal was the driver of the vehicle.  In speaking with Veal and his passenger, Wegner learned that the passenger was the person who had knocked on the door.  The passenger explained that he was looking for a ride home and knew someone who worked at the restaurant.  As he was speaking to Veal, Officer Wegner observed signs of intoxication and subsequently arrested him for driving while impaired (DWI).  After testing, Veal was charged with two counts of third-degree DWI and one count of fourth-degree DWI.

            Veal moved to suppress evidence of his intoxication, asserting that Officer Wegner had no reasonable, articulable basis for stopping his vehicle.  At the omnibus hearing, Officer Wegner testified that when he first saw the four people walking away from the saloon, he "believed they may have been involved in the suspicious activity call," but he "wasn't sure yet."  Wegner testified that although he had not observed any traffic violations or criminal behavior, he wanted to see if the occupants of the vehicle knew or saw anyone knocking on the back door of the saloon.

            The district court denied Veal's motion to suppress, concluding that "[i]t was reasonable for the officer to stop the vehicle to determine whether the persons in the vehicle were associated with the knocking on the door," noting that there may have been someone other than the four people observed who needed help or who had an intent to return to commit a criminal offense. 

            Following a trial to the court, Veal was convicted of and sentenced for third-degree DWI.  Veal's sentence was stayed pending this appeal.

D E C I S I O N

 

The facts in this case are undisputed, and the only issue is the legality of the investigatory stop of Veal's vehicle.  We review the question of the legality of such a stop de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  Both the Fourth Amendment to the United States Constitution and article I, section 10, of the Minnesota Constitution prohibit unreasonable searches and seizures by the government.  This case falls into what we have characterized as

a narrow category of criminal matters, namely, those in which a law enforcement officer stops a motor vehicle without a warrant, without probable cause to arrest an occupant, and without observing any overt illegality, but with the beliefs that the [occupants of the vehicle are] engaging in suspicious behavior and that further investigation is necessary. 

 

State v. Schrupp, 625 N.W.2d 844, 846 (Minn. App. 2001), review denied (Minn. July 24, 2001).  We focus our inquiry solely on "whether the officer's action was justified at its inception."  Id.

In Schrupp, this court held that a police officer failed to identify any inference of possible criminal activity to justify his investigatory stop of a vehicle.  Id. at 848.  The officer based the stop only on the facts that the vehicle was driven by a man but registered to a woman in a different town and that the driver pulled quickly into a driveway and returned to the road shortly after, leading the officer to conclude that the driver was trying to avoid him.  Id.  Veal argues that in this case, as in Schrupp, there is no indication of any criminal activity to justify the investigatory stop. 

But we noted in Schrupp that the central inquiry is whether the "‘particular governmental invasion of a citizen's personal security'" was reasonable under all of the circumstances.  Id. at 846 (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873 (1968)).  In Schrupp, we also noted that the interest in effective crime prevention "underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."  Id. (quotation omitted).  Again relying on Terry, we stated in Schrupp that "[t]he law approves ‘legitimate and restrained investigative conduct undertaken on the basis of ample factual justification.'"  Id. at 847 (quoting Terry, 392 U.S. at 15, 88 S. Ct. at 1876-77). 

In Schrupp, we concluded that the stop was unreasonable because "at the inception of the stop the officer's suspicion was inchoate and that no facts had ripened into the category of unusual behavior from which a reasonable inference of the possibility of criminal behavior could be drawn."  In this case, however, Officer Wegner was responding to a citizen's request to investigate loud banging on a locked service door of a saloon in the early morning hours after the saloon was closed for the night, which the citizen, an employee still inside the saloon, considered an unusual and suspicious occurrence.  When asked why he made an investigatory stop of Veal's vehicle, Officer Wegner testified, "I don't know if it's a medical, somebody needs help, I don't know whether they're breaking in.  My sole purpose was to stop that vehicle for that situation that took place.  I needed to see what they knew about it, what was going on."[1] 

            Veal argues that once Officer Wegner had determined that there was no one at the back door of the saloon, he no longer had reason to suspect that anyone was in need of assistance or committing a criminal activity, citing State v. Pike, 551 N.W.2d 919, 922 (Minn. 1996), for the proposition that if an officer discovers facts which render the officer's prior suspicion unreasonable, any investigative stop initiated after that point would be unconstitutional.  In Pike, the Minnesota Supreme Court held that an officer's knowledge that a vehicle's owner has a revoked license provides enough reasonable suspicion of criminal activity to justify an investigatory stop unless the officer becomes aware of facts that make it unreasonable to assume that the owner is the driver.  Id.  Here, Officer Wegner was responding to a citizen's call regarding suspicious activity.  The fact that Officer Wegner did not personally observe any criminal activity or emergency situation did not eliminate his suspicion that the people he observed near the saloon may have been involved in criminal activity or in need of assistance.  See Berge v. Comm'r of Pub. Saftey, 374 N.W.2d 730, 733 (Minn. 1985) (stating that an officer need not see a violation to justify a stop as long as "the officer can sufficiently articulate the factual basis for his suspicion"); see also State v. Lopez, 698 N.W.2d 18, 23-24 (Minn. App. 2005) (holding that under the emergency exception to the warrant requirement, a police officer was justified in investigating the welfare of a defendant who was sleeping in her parked vehicle in a shopping center parking lot after a store employee called and reported that several customers were concerned about someone asleep or unconscious in the parking lot).

            Because Officer Wegner stopped Veal on the reasonable suspicion that Veal or his passenger were involved in or had knowledge of reported suspicious activity or were in need of assistance, we conclude that the stop did not violate Veal's federal or state constitutional rights to be free from unreasonable government intrusion, and the district court did not err in denying his motion to suppress.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Veal urges this court not to credit Officer Wegner with the observation skills of a more experienced officer because he had only been an officer for a few months when the incident at the Black Bear occurred, but the record does not indicate that Officer Wegner drew any inferences or deductions that would elude a person with average observation skills.