Kenneth Marlin Hanson, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

Kenneth Marlin Hanson, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. A06-2102, Court of Appeals Unpublished Decision, November 27, 2007.

This opinion will be unpublished and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
A06-2102
 
 

Kenneth Marlin Hanson, petitioner,
Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

 

 

Filed November 27, 2007

Affirmed

Lansing, Judge

 

Becker County District Court

File No. CX-06-1372

 

W. Harvey Skees, Gerald Miller & Associates, P.A., 2915 Wayzata Boulevard, Minneapolis, MN 55405 (for appellant)

 

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

Kenneth Hanson was arrested for driving while impaired, and his driver's license was revoked under the implied-consent law.  In a petition for judicial review, Hanson challenged the constitutional validity of the stop.  The district court sustained the revocation, and Hanson appeals.  Because the stop was justified by the location and movement of Hanson's car in the parking lot of a previously burglarized facility that was closed for business, we affirm.

F A C T S

The district court's factual findings, which are based on the testimony of a Becker County patrol officer, are not disputed.  The officer testified that while he was conducting routine patrol at 3:20 a.m. on July 22, 2006, he observed two cars in the parking lot of the Detroit Lakes municipal country club.  When the officer turned his squad car around to check on the parked cars, he observed that their headlights and brake lights illuminated and they began to move down the parking-lot driveway toward the exit.  The officer testified that the cars' location and movement raised suspicions because he knew the country club was closed at that time of the morning, the parking lot did not serve any other facility, and during the time he had worked as a Becker County officer the country club had been burglarized numerous times. 

            As the officer drove toward the cars, he activated his squad lights and the cars stopped.  The officer approached the first car and began to talk to the driver, who was later identified as Hanson.  He noted that Hanson's breath had a smell of an alcoholic beverage and that his eyes were bloodshot and watery.  The officer suspected that the driver was intoxicated and discovered through questioning that the second car's driver was a friend of Hanson.  While the officer was questioning Hanson, the officer saw the second car back up and drive toward the club house.  The officer said, "Well, where's he going?"  Hanson responded that his friend was going home.  Because the officer knew that there was no other exit, he got back into his squad car to pursue him.  He located the second car, but the driver was no longer in it.  As he was looking for the driver, he saw Hanson begin to drive away.  The officer was able to catch up with Hanson's car on County Highway 22, a short distance from the parking lot.  After stopping Hanson for the second time, the officer administered sobriety tests and, based on the results, arrested Hanson for driving while impaired in violation of Minn. Stat. § 169 A. 20 (2004).

Following revocation of his driver's license, Hanson petitioned for judicial review.  At the hearing on the revocation, Hanson disputed the constitutional validity of the investigatory stop.  The district court sustained the revocation, and Hanson appeals. 

D E C I S I O N

A police officer's limited investigatory stop of an automobile is lawful if the officer has a particularized and objective basis for a suspicion of criminal activity.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (citing United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981)).  The officer's suspicion may be based on the totality of the circumstances, including "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 state has the burden of establishing that the stop was lawful.  State v. Flowers, 734 N.W.2d 239, 256 (Minn. 2007).

In this case, the Becker County officer became suspicious when he saw two cars in an otherwise empty country-club parking lot and then saw the vehicles' headlights and brake lights illuminate after he turned his squad car around.  It was 3:20 a.m., he knew the country club was closed at that time of the morning, the parking lot did not serve any other facilities, and he was aware of numerous burglaries that had occurred at the country club. 

Similar fact situations have resulted in sustainable investigatory stops.  In Thomeczek v. Comm'r of Pub. Safety, this court held that an officer had a reasonable and articulable suspicion of criminal activity when the officer observed a vehicle with its headlights on in "an empty lot late in the evening in an area undergoing construction, where a burglary, vandalism or theft might occur."  364 N.W.2d 471, 472 (Minn. App. 1985).  And, in Olmscheid v. Comm'r of Pub. Safety, an investigatory stop was determined to be lawful when an officer observed a vehicle "on a dead-end road at approximately 1:30 a.m. coming from an area behind a car dealership which had recently experienced property theft."  412 N.W.2d 41, 42 (Minn. App. 1987), review denied (Minn. Nov. 6, 1987).  In Olmscheid we noted that police are particularly justified in stopping people during the hours of darkness "‘to investigate whether a burglary of a closed commercial establishment is pending or had occurred when the suspect is seen in such close proximity to that establishment that he appears to be something other than a mere passerby.'"  Id. at 43 (quoting 3 W. LaFave, Search and Seizure § 9.3(c), at 440 (2d ed. 1987)).

 

Hanson claims that his case is distinguishable from Thomcezek and Olmscheid because the officer "openly testif[ied] that he was ‘curious' and simply stopped [Hanson] because it was a high-crime area."  These assertions are not supported by the evidence.  Although the officer on cross-examination said that he was curious about the two vehicles, this curiosity was linked to his earlier testimony that he suspected a possible break-in at the facility because the cars were there in the early morning hours, the facility was closed, no other vehicles were in the parking lot, no other businesses were served by the parking lot, and numerous burglaries had occurred at that facility during the time he had been an officer for Becker County. 

On these facts, we conclude that the officer's limited investigatory stop had a reasonable, articulable basis that was within constitutional bounds.

For two reasons we do not reach the state's alternative argument that the second stop was independently justified by the intervening circumstances of the disappearance of the driver of the second car and Hanson's leaving the scene after he was stopped.  First, we conclude that the officer's first stop of Hanson was lawful and the observations the officer made about Hanson's apparent intoxication were sufficient to justify his pursuing and again stopping Hanson when he drove out of the country-club driveway and onto County Highway 22.  Second, the state did not present this intervening-circumstance argument to the district court.  See Haase v. Comm'r of Pub. Safety, 679 N.W.2d 743, 747-48 (Minn. App. 2004) (declining to reach issue of whether to apply inevitable-discovery exception in implied-consent context because commissioner did not raise it in district court); see also Tracht v. Comm'r of Pub. Safety, 592 N.W.2d 863, 866 (Minn. App. 1999) (stating that commissioner has burden of proving that inevitable-discovery exception applies), review denied (Minn. July 28, 1999).

Affirmed.