Opinion
No. C1-98-690.
Filed December 15, 1998.
Appeal from the District Court, Crow Wing County, File No. C5-98-0014.
John Joseph Leunig, (for appellant)
Hubert H. Humphrey III, Attorney General, Kelly Susan Kemp, Assistant Attorney General, (for respondent)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Foley, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Glenn Owen Andrew challenges the district court's order sustaining the revocation of his driving privileges under the implied consent law, arguing that the arresting officer conducted an unconstitutional investigative stop. We affirm.
FACTS
On December 6, 1997, at approximately 2:00 a.m., Deputy Kleffman was en route to an emergency call with his emergency lights on when he received a dispatch that there was a possible drunk driver leaving the Holiday gas station. The dispatch described the vehicle as a white Suburban and stated that someone from the Holiday station had called to complain. The deputy had received tips from the Holiday store previously and they had been reliable. The investigator later learned that the information forming the basis of the tip came from an unidentified motorist who had relayed the information to the Holiday clerk.
Upon seeing the squad car approach with emergency lights on, appellant pulled over in order to let the squad car pass. He drove over the curb so that half of his Suburban was on the road and half was over the curb. The deputy pulled in behind appellant because the vehicle matched the description of the possible drunk driver and because the deputy considered the act of driving over the curb to be unsafe at that location.
Appellant was arrested for driving while intoxicated, and his driver's license was subsequently revoked pursuant to Minn. Stat. § 169.123, subd. 4 (Supp. 1997). The district court sustained the revocation.
DECISION
When reviewing a trial court's factual findings bearing on a motion to suppress on Fourth Amendment grounds, we apply the "clearly erroneous" standard. State v. George , 557 N.W.2d 575, 578 (Minn. 1997). Once the facts are established, we independently review the application of law to determine the adequacy of the basis for the stop. Berge v. Commissioner of Pub. Safety , 374 N.W.2d 730, 732 (Minn. 1985).
Under the Fourth Amendment to the United States Constitution, a police officer must have a reasonable basis for stopping a vehicle. Marben v. State, Dep't of Pub. Safety , 294 N.W.2d 697, 699 (Minn. 1980). A stop is lawful if the officer articulates a "particularized and objective basis for suspecting the particular persons stopped of criminal activity." Berge , 374 N.W.2d at 732 (quoting United States v. Cortez , 449 U.S. 411, 417-418, 101 S.Ct. 690, 695 (1981)). The requirement is minimal; "[a]ll that is required is that the stop be not the product of mere whim, caprice, or idle curiosity." People v. Ingle , 330 N.E.2d 39, 44 (1975), quoted in Marben , 294 N.W.2d at 699.
The officer makes his assessment on the basis of "all of the circumstances" and "draws inferences and makes deductions that might well elude an untrained person."
Berge , 374 N.W.2d at 732 (quoting Cortez, 411 U.S. at 418, 101 S.Ct. at 695).
The information necessary to support an investigative stop need not be based on the officer's personal observations, rather, the police can base an investigative stop on an informant's tip if it has sufficient indicia of reliability.
In re Welfare of G.M. , 560 N.W.2d 687, 691 (Minn. 1997) (citing State v. Cavegn, 294 N.W.2d 717, 721 (Minn. 1980)). However, an anonymous tip may not have sufficient indicia of reliability to justify a stop. Olson v. Commissioner of Pub. Safety , 371 N.W.2d 552, 556 (Minn. 1985).
In Olson , the police officer made the stop solely based on an anonymous citizen's report "that he observed a — possibly a drunken driver." Id. at 553. The supreme court determined that the stop was not valid. Id. at 556. In doing so, the court focused on the reliability of the caller and concluded that in order for the police to make a stop based on a tip alone, an "anonymous caller must provide at least some specific and articulable facts to support the bare allegation of criminal activity." Id.
Notwithstanding appellant's claim that Olson is dispositive on the issue of the reliability of the tip, it is evident that the deputy had an independent basis for the stop. It is abundantly clear from the findings of the trial court that the court accepted the testimony of the arresting officer. See Minn.R.Civ.P. 52.01 (on review, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses"); In re Welfare of M.D.O. , 462 N.W.2d 370, 374-75 (Minn. 1990) (trial courts are in a better position than appellate courts to judge witness credibility). The court found that appellant drove his vehicle over the curb in a potentially dangerous area, and that provided the officer with cause for concern because the area was near a deep hole. The court further found that the officer believed appellant left the roadway unreasonably in response to the emergency lights. Those findings are supported by the record and are not clearly erroneous.
An officer may make inferences and deductions in light of his experience that may elude the average citizen. Berge , 374 N.W.2d at 732. Here, the deputy saw a vehicle drive over the curb at a place where it was potentially dangerous to do so. Given all of the circumstances, the deputy's decision to stop the vehicle was "not the product of mere whim, caprice, or idle curiosity." Ingle , 330 N.E.2d at 44, quoted in Marben , 294 N.W.2d at 699. The circumstances observed by the deputy represent a "particularized and objective basis" for suspecting that appellant was intoxicated. Berge , 374 N.W.2d at 732. The deputy was warranted in stopping the vehicle for further investigation.