Opinion
No. C9-02-992.
Filed February 18, 2003.
Appeal from the Hennepin County District Court, File No. IC480583.
Peter J. Timmons, (for appellant)
Mike Hatch, Attorney General, (for respondent)
Considered and decided by Klaphake, Presiding Judge, Minge, Judge, and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant appeals the district court order sustaining the revocation of his driving privileges. Appellant argues that the district court erred by finding that an identified informant's tip that he was a possibly impaired driver was sufficient for the police to conduct an investigatory stop. Because the report to the police regarding his driving was sufficient for an investigatory stop, we affirm.
FACTS
On November 16, 2001, at 7:34 p.m., a person, who gave his name and phone number and identified himself as a Hopkins firefighter, called Plymouth police dispatch and reported that he was following a vehicle with a possibly impaired driver and specifically identified the vehicle. While the firefighter remained on the telephone with the dispatcher and continued to follow the vehicle, the dispatcher forwarded a notice of a possibly impaired driver to Plymouth Police Officer Robin Way. Officer Way received the notice over his Mobile Display Terminal (MDT) in his squad car. Officer Way received the firefighter's name and phone number, a description of the suspected vehicle and license plate, and information as to the location of the vehicle. Officer Way was informed this was a possibly impaired driver, but he was not given any details regarding appellant's driving.
Officer Way located the vehicle in the left lane of travel and followed it. As the vehicle entered the left turn lane, Officer Way turned on his emergency lights. Appellant, John Willard Vogelgesang, turned left onto a side road. The speed limit in the area is 40 miles an hour; Officer Way noted the suspect vehicle was traveling at approximately 20 25 miles per hour, but observed no traffic violation. Officer Way did testify that he thought appellant's slower driving was "a little unusual" based on the usual speeds driven on that portion of the road.
When Officer Way approached appellant, he observed indicia of intoxication, including a moderate odor of alcohol. Based on field sobriety tests, Officer Way determined that appellant was under the influence of alcohol, placed him under arrest, and transported him to the Plymouth Police Department.
After being read the implied consent advisory, appellant decided to contact his attorney prior to deciding whether to be tested. Before he made any telephone calls to his attorney, appellant stated he would probably be unable to get in contact with his attorney due to the late hour. Appellant was provided with a telephone and several telephone books, but only made one unsuccessful telephone call. For approximately 20 minutes, appellant made no further efforts to contact an attorney. He did not use a phone book or make any additional telephone calls. At the end of approximately 20 minutes, Officer Way again questioned him regarding taking the breath test. Appellant refused to take the test. Appellant's driving privileges were immediately revoked because he refused to take the breath test.
Later, after Officer Way had arrested and booked appellant, Officer Way contacted the firefighter/informant and learned the exact details of what the firefighter had observed when watching appellant's driving. The firefighter told the officer that the driver was traveling at speeds up to 70-75 miles per hour, that he had gone over the centerline, and that he was unable to stay within the lines for his lane.
Appellant requested a hearing on the revocation of his driver's license and the impoundment of his license plates. After a hearing was held in Hennepin County District Court, the court issued its findings of facts and conclusions of law and sustained the revocation of driving privileges. But twice the court incorrectly referred to appellant as Barry Wilson rather than John Vogelgesang. The court later realized its error and amended the order on April 15, 2002, inserting John Vogelgesang as the correct name. Vogelgesang appealed.
DECISION I.
The facts in this case are not disputed. When an appellate court reviews a stop based on given facts, the test is not whether the district court's decision is clearly erroneous, but whether as a matter of law, the basis for the stop was adequate. Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).
Conclusions of law will be overturned only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case.
Dehn v. Comm'r of Pub. Safety, 394 N.W.2d 272, 273 (Minn.App. 1986) (citation omitted). This court reviews the adequacy of the basis for the stop de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).
A stop by a police officer is justified if the police officer has a specific and articulable suspicion of a violation. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). If the stop was "not the product of mere whim, caprice, or idle curiosity," it will be upheld. Id. (quotation omitted). "[T]he factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information acquired from another person." Id. (citation omitted).
To determine if an informant's tip is reliable, Minnesota law focuses on two factors. The first factor is the identifying information provided by the informant; the second factor is the facts supporting the tipster's assertion about the driver. Rose v. Comm'r of Pub. Safety, 637 N.W.2d 326, 328 (Minn.App. 2001) (citing Jobe v. Comm'r of Pub. Safety, 609 N.W.2d 919, 921 (Minn.App. 2000)). Neither factor alone is dispositive; an analysis of both is required in a totality-of-the-circumstances determination. Id.
Identifying Information Provided by Informant
For a police officer to determine that the informant is reliable, the informant must supply sufficient information for the police officer to locate the informant and hold him accountable for the truthfulness of the information. Rose, 637 N.W.2d at 328. A private citizen giving a tip to police officers is presumed to be reliable. Marben, 294 N.W.2d at 699. Here, the police officer knew the informant's name, phone number, and that he was a firefighter for the city of Hopkins. Because the informant was identified, his information is deemed reliable. As a public safety officer of a nearby municipality, the informant's reliability was enhanced.
Facts Supporting the Tipster's Assertion
We next consider if the police officer had a reasonable, articulable basis for a stop based on the information provided by the informant. This court has long found that the "factual basis required to support a stop for a routine traffic check is minimal." Marben, 294 N.W.2d at 699 (quotation omitted). The requirement is only that the stop is "not the product of mere whim, caprice, or idle curiosity." Id. (quotation omitted). That requirement is met as long as the stop "is based upon `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" Id. (quoting People v. Ingle, 330 N.E.2d 39, 44 (N.Y. 1975) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968))) ( alteration in original). In addition, tips from an identified citizen are deemed more reliable and need less detail to provide a sufficient basis to conduct a stop. Jobe, 609 N.W.2d at 921-22.
Here, the police officer knew a public safety officer was continuing to actually follow and observe a driver whom the informant believed to be impaired. The police officer knew the location of the vehicle, the direction the vehicle was traveling, the color of the vehicle, and the vehicle license plate number. Appellant argues that the police officer did not have a reasonable, articulable basis for the stop because he did not observe any traffic violations, and he was not aware of the traffic violations observed by the firefighter/informant. We do not agree that the police officer did not have a reasonable, articulable basis for the stop. Courts of this state have concluded that if a reliable informant based his report on a personal observation of one's driving, the officer was provided a reasonable, articulable basis for a stop. See City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890 (Minn. 1988) (upholding a stop because the informant had personally seen the driver in the gas station where the informant was employed); State v. Davis, 393 N.W.2d 179 (Minn. 1986) (upholding a stop because the informant had personally seen a driver run a red light); Marben, 294 N.W.2d 697 (upholding police officer's stop because informant was in the same geographic area and in close proximity to the subject car); Playle v. Comm'r of Pub. Safety, 439 N.W.2d 747 (Minn.App. 1989) (upholding a stop because the informant had personally seen the driver in a Burger King drive-through where the informant was employed).
Most importantly, this court considers the totality of the circumstances. Here, the dispatcher maintained ongoing contact with the firefighter as he continued to follow appellant. The firefighter had observed appellant's speeding and inability to stay within his lane and concluded that appellant appeared to be impaired. Officer Way was aware the informant was a firefighter. In addition, as noted in Playle
it is in the interests of the public that citizens are encouraged to report suspected drunk drivers to authorities, so that they may be apprehended before an accident occurs. A layperson is qualified to give an opinion as to whether a person is under the influence, based upon the observations of that person. If the tip is sufficient, officers are encouraged to investigate the suspect immediately, rather than to allow the suspect to drive so that the officer may observe the driving. Otherwise, the risk that the suspect will be involved in an accident increases, which is not in the public's interest.
Playle, 439 N.W.2d at 749 (citation omitted). Considering all the circumstances, we find the police officer had a reasonable, articulable basis to subject appellant to an investigatory stop.
II.
Drivers have a right to counsel prior to deciding if they wish to submit to alcohol testing under the implied consent law. Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). A police officer must inform the driver of the right to counsel and must also assist in vindicating the right. Gergen v. Comm'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App. 1996), review denied (Minn. Aug. 6, 1996).
The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.
Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 840 (Minn.App. 1992), review denied (Minn. Oct. 20, 1992). There is no definitive amount of time that constitutes a reasonable amount of time. Kuhn, 488 N.W.2d at 842. A relevant inquiry into a reasonable amount of time focuses "both on the police officer's duties in vindicating the right to counsel and the defendant's diligent exercise of the right." Id. "[A]s a threshold matter the driver must make a good faith and sincere effort to reach an attorney." Id. In determining whether a driver has been given a reasonable amount of time, this court considers three factors: the time of day, the length of time the driver has been under arrest, and whether the driver made a good faith and sincere effort to contact counsel. Id.
Here, appellant argues he was not allowed a sufficient amount of time to reach his attorney. After the police officer read appellant the implied consent advisory, appellant expressed concern that he might not be able to reach his attorney because of the time of day. Appellant then made one attempt to contact his attorney. Within ten minutes of hearing the implied consent advisory, appellant stated that he could not reach his attorney. Appellant made no additional efforts to reach another attorney.
There is a discrepancy as to whether appellant was given 21 or 31 minutes to reach an attorney. But the amount of time appellant was given is not the determinative factor. Here, appellant did nothing beyond make one phone call. After making that initial call, appellant simply sat. In this situation he was not making a "good faith sincere effort" to contact an attorney. He did not request any assistance. He did not indicate what he would do with more time. He was given a reasonable opportunity. He was not rushed. We find the district court did not err in determining appellant had a reasonable opportunity to contact an attorney.
III.
Appellant argues that the revocation of his license should be reversed because the order stated it was revoking the license of "petitioner, Barry Wilson." Appellant argues that the commissioner should have made a motion within 30 days of the district court order to correct the order.
Appellant's argument for reversal of the order based on the use of an incorrect name is not persuasive. The error was promptly corrected by the district court on the court's own initiative. The error was harmless, and appellant suffered no prejudice because of it. Furthermore, appellant cites no legal authority to support his position. See Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (arguments to appellate courts without citation to legal authority are waived). We reject appellant's argument on this issue.