Opinion
No. A05-105.
Filed December 6, 2005.
Appeal from the District Court, Hennepin County, File No. 04043861.
Mike Hatch, Attorney General, and
David K. Ross, Carson, Clelland Schreder, Assistant Brooklyn Center City Prosecutor, (for respondent)
Charles Ramsay, Ramsay Devore, P.A., (for appellant)
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appeal from conviction for second-degree DWI, arguing that the police officer, who was dispatched to investigate two 911 calls alleging that appellant was repeatedly pounding on the complainant's door and refused to leave, did not have a reasonable articulable suspicion to stop appellant's vehicle. Because the district court properly determined that the police officer had a reasonable articulable suspicion to stop appellant's vehicle based on the information received from dispatch concerning appellant's conduct, we affirm.
FACTS
On July 7, 2004, at approximately 7:37 p.m., Brooklyn Center 911 Dispatch received a call from a female complainant regarding a woman named Leslie who had just left the complainant's home. The complainant stated that Leslie had come over, harassed the complainant, and would not leave. The complainant further stated that Leslie had taken off in her car and was "screaming down the street." The dispatcher instructed the complainant to call back if Leslie returned. The complainant called back minutes later stating that Leslie had returned. The complainant identified herself by name and explained that she was hiding because Leslie was repeatedly knocking on her back door. The complainant also told the dispatcher that her husband had helped Leslie with some stuff and that she was a "psycho path." The complainant provided dispatch with Leslie's license plate number and described her car as "white grey with black trim." The complainant described Leslie as a white female with black hair and in her forties.
At 7:59 p.m., a police officer was dispatched to the vicinity of the complainant's address in response to the two 911 calls. The dispatcher relayed that a woman named Leslie kept returning to the complainant's address, pounding on the door and harassing the home's occupant. The dispatcher described Leslie's physical appearance, her relationship to the complainant, and the vehicle description and license plate number. En route to the area, the officer observed the suspect vehicle.
The officer activated the squad lights, but the driver did not stop. The vehicle eventually stopped, and the officer made contact with the driver, who was later identified as appellant Leslie Jean Angeski. As a result of the stop, appellant was charged with two counts of second-degree DWI, one count of disorderly conduct, and one count of failure to produce proof of insurance. Appellant moved to dismiss the charges arguing that the officer did not have a reasonable articulable suspicion to stop her vehicle. The officer testified regarding the information she received from the dispatcher, and the district court received the tape and transcript of the 911 calls into evidence. In denying appellant's motion, the district court determined that the officer had a reasonable articulable suspicion for stopping appellant. The parties submitted the matter to the court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty of second-degree DWI and this appeal follows.
Appellant was convicted of driving under the influence for a March 22, 2002 offense, and her driver's license had also been revoked after an alcohol related traffic offense that occurred on December 22, 1999.
DECISION
Appellant argues that the officer did not have a reasonable articulable suspicion to stop her vehicle. When this court reviews a district court's determination of the legality of a limited investigatory stop, questions of reasonable suspicion are reviewed de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). Under the Fourth Amendment of the United States Constitution, a police officer may conduct a limited stop to investigate suspected criminal activity if the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). The factual basis required to support an investigatory stop is minimal. State v. McKinley, 305 Minn. 297, 303, 232 N.W.2d 906, 911 (1975). But the stop must not be "the product of mere whim, caprice, or idle curiosity." State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999). Here, the officer stopped appellant's vehicle after she was dispatched to investigate a situation where an individual repeatedly returned to a residence, pounded on the door and harassed the home's occupant. The investigatory stop was not based on mere curiosity but rather information from the dispatcher that included appellant's license plate number, a description of her vehicle, and appellant's name and physical description.
Additionally, the dispatcher provided information indicating that appellant was likely involved in criminal activity. The district court correctly determined that appellant was most likely engaging in misdemeanor trespass or disorderly conduct. "A person is guilty of a misdemeanor if the person intentionally . . . trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor[.]" Minn. Stat. § 609.605, subd. 1(b)(3) (2002). Additionally, "[a] person is guilty of a misdemeanor [trespass] if the person intentionally . . . returns to the property of another with the intent to abuse, disturb, or cause distress in or threaten another, after being told to leave the property and not to return. . . ." Minn. Stat. § 609.605, subd. 1(b)(7) (2002). Alternatively, whoever engages in noisy conduct in a public or private place, "knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others . . . is guilty of disorderly conduct, which is a misdemeanor[.]" Minn. Stat. § 609.72, subd. 1(3) (2002). Relying on the dispatcher's information that appellant repeatedly returned to the complainant's home, pounded on her door and harassed her, the officer had an objective basis for suspecting that appellant was involved in criminal activity.
Appellant argues, however, that the complainant's assertion that appellant "harassed" her is insufficient to authorize the officer to seize appellant. An investigative stop need not be based upon the officer's personal observation. In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997). An officer may base an investigative stop on an informant's tip if the tip has sufficient indicia of reliability. Id. In assessing the reliability of a tip, courts examine the credibility of the informant and the basis of the informant's knowledge in light of all the circumstances. Id. Case law involving investigative stops based on anonymous/informant tips focuses on two factors: (1) the sufficiency of the informant's self-identification, and (2) the existence of some specific and articulable facts to support the informant's allegation of criminal activity. Rose v. Comm'r of Pub. Safety, 637 N.W.2d 326, 328 (Minn.App. 2001), review denied (Minn. Mar. 19, 2002); Olson v. Comm'r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985). Neither factor is independently dispositive and the overall determination of reasonable suspicion is based on the "totality of the circumstances." Jobe v. Comm'r of Pub. Safety, 609 N.W.2d 919, 921 (Minn.App. 2000).
In this type of citizen-informant case, courts begin with the presumption that citizen informants are reliable. Marben v. State, Dept. of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (indicating that a tip provided by a private, identifiable citizen informant is presumed reliable because the informant can be held responsible for the tip). Here, the presumption of reliability is supported by the facts. The complainant identified herself by name to the dispatcher, and the dispatcher had the complainant's address; thus, the complainant could be held responsible for the calls.
An informant's tip must also include some specific and articulable facts that support an allegation of criminal activity beyond a bare assertion or mere opinion. See Rose, 637 N.W.2d at 329. While appellant claims that she was just knocking on the door, the transcript of the 911 calls supports the allegation of criminal activity. The transcript indicates that the complainant hid as appellant repeatedly returned and knocked on her door. The complainant also observed that appellant was "screaming down the street" and stated that appellant was harassing her. Appellant claims, however, that the assertion that she was harassing the complainant is a mere conclusion without support from identified observable facts and that a private citizen cannot form the legal conclusion that appellant "harassed" her. The complainant, however, was able to describe how appellant's conduct affected her and relay her observations to the dispatcher. The officer, relying on the information from the dispatcher, was able to determine, based on her experience, that appellant was probably involved in some criminal activity that authorized an investigative stop.
Minnesota case law supports this determination. In Yoraway v. Comm'r of Pub. Safety, 669 N.W.2d 622 (Minn.App. 2003), a private citizen identified himself to the dispatcher and reported a motorist driving recklessly. A police officer responded and made an investigative stop, although he "did not personally see [the defendant] violate any laws before the stop." Yoraway, 669 N.W.2d at 625. This court emphasized that the reliability of an informant's tip depends "not only on the identification of the informant but also on the nature of the information he or she gives." Id. at 626. In Yoraway:
[T]he citizen described not only the specific suspicious driving but also the make, model, and color of the car; the approximate age and gender of the driver and the gender of the passenger; the location of the car when the traffic infractions occurred; and the direction in which and specific streets on which the car was traveling.
Id. at 626-27.
Here, the complainant provided appellant's license plate number, the color of her car, her physical description, appellant's relationship to the complainant, and a description of appellant's specific conduct witnessed by the complainant. By repeatedly returning and knocking on the door, "screaming down the street," and not leaving when asked, appellant engaged in trespass and/or disorderly conduct. See Minn. Stat. § 609.605, subd. 1(b)(3), (7); Minn. Stat. § 609.72, subd. 1(3). As this court explained in Yoraway, "[t]he law does not require an informant . . . to reach and articulate an ultimate conclusion as to the reason for the illegal [conduct] before a stop may be made. The law requires only that there be objective, factually specific conduct that reasonably raises a suspicion of illegality." Yoraway, 669 N.W.2d at 627. That legal threshold has been met here.
Appellant argues that even if the information from the complainant was reliable, it was not enough to justify the stop because Terry stops are limited to investigate serious offenses that were committed in the very recent past. In State v. Stich, 399 N.W.2d 198 (Minn.App. 1987), the appellant argued that the stop was improper because it involved a completed misdemeanor. In Stich, officers received a report from a restaurant employee that a fight had started outside the restaurant. Stich, 399 N.W.2d at 199. When the officers arrived, the employee pointed out one of the vehicles involved. Id. The vehicle was stopped and the officers, after observing indicia of intoxication, arrested the driver for DWI. Id. This court found that the stop was proper because the misdemeanor was committed in the very recent past. Id.
The transcript of the 911 calls indicates that the first of two calls was received at 7:37 p.m. The officer was dispatched approximately twenty minutes later. En route to the area, the officer identified and stopped the suspect vehicle, made contact with appellant, administered field sobriety tests and, at 8:38 p.m., read appellant the Minnesota Implied Consent Advisory. Because this all occurred within an hour, it was a misdemeanor committed in the recent past.
Appellant also argues that officers are only authorized to conduct investigative stops for serious offenses. In support of her argument appellant suggests that the Minnesota Supreme Court has held that "[t]he Terry rule should be expressly limited to investigation of serious offenses." State v. Holmes, 569 N.W.2d 181, 185 (Minn. 1997) (quotation omitted). However, the court in Holmes held that "a police officer who merely has reasonable suspicion that a parking violation has occurred cannot seize an individual for the purpose of investigation." Id. The supreme court concluded that parking violations cannot be the basis of an investigatory stop because parking violations are typically enforced simply by applying the citation to the offending vehicle. Id. Here, the officer stopped appellant's vehicle to investigate a report of possible criminal activity. Appellant's cited support does not prohibit the officer from stopping appellant to investigate a possible misdemeanor offense. The officer had a reasonable articulable suspicion for stopping appellant's vehicle and the district court properly denied appellant's motion.
Appellant's motion to dismiss only addressed whether the officer had a reasonable articulable suspicion to initiate contact with appellant and the district court limited its ruling on this issue. Appellant argues to this court that the state presented no evidence of the legal basis, date, or time of the stop. Even though "[t]his court generally will not decide issues which were not raised before the district court," appellant's argument has no merit based on appellant's stipulation during the Lothenbach proceeding. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).