Opinion
No. CX-95-2567.
Filed August 13, 1996.
Appeal from the District Court, Dakota County, File No. K7-95-655.
Hubert H. Humphrey, III, Attorney General, (for Respondent).
Martin J. Costello, Karen J. Kampa, Student Attorney, (for Respondent).
Rick E. Mattox, First District Public Defender, Suzanne E. Flinsch, Asst. Public Defender, (for Appellant).
Considered and decided by Norton, Presiding Judge, Parker, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Appellant challenges his driving convictions, arguing that he was subjected to an unconstitutional stop by the arresting officer. We affirm.
FACTS
On December 18, 1994, appellant Lance Demuth was arrested and charged with gross misdemeanor DWI, aggravated DWI, gross misdemeanor refusal to submit to testing, and gross misdemeanor driving after cancellation of license. At his omnibus hearing, Demuth moved to suppress all evidence obtained as a result of the arresting officer's investigatory stop, arguing that the stop was unconstitutional.
At the hearing, the officer testified that at 12:50 a.m., on Sunday, December 18, he was driving an unmarked car and was about to exit from a West St. Paul Taco Bell restaurant parking lot. The officer was in full uniform. Demuth entered the parking lot at the same driveway, such that the two cars' driver's sides were directly adjacent. The driver's window was down in each car. As Demuth passed the officer, he stuck his hand out the window, directed an obscene gesture towards the officer ("flipped [him] the bird"), and yelled "F — k you" at the officer. Demuth then continued into the restaurant's drive-through line. The officer pulled in behind Demuth, approached his car, and asked to see his driver's license. The officer then observed indicia of intoxication and later arrested Demuth.
The officer testified that he stopped Demuth because of the gesture and obscenity. The officer believed that Demuth's acts constituted disorderly conduct. The officer was also concerned that similar conduct, if continued at the restaurant, could instigate a breach of the peace. He testified that problems with disorderly people, fights, and drunkenness often occurred on weekend nights at that particular restaurant, to an extent that the restaurant usually hired an off-duty police officer to provide security on those nights; in fact, a security officer was on duty at the time of Demuth's arrest. The officer stated that he had responded to such circumstances at the restaurant earlier that evening and that similar words and gestures had led to altercations and criminal activity there in the past. The officer stated that there were people in the parking lot and a number of cars in the drive-through line at the time he approached Demuth.
The trial court denied Demuth's motion to suppress, concluding that the stop was lawful. Demuth waived a jury trial and submitted his case on stipulated facts. The trial court convicted Demuth on all charges, and this appeal followed.
DECISION
The only issue is whether the stop of Demuth was constitutional. The state conceded in the trial court that the officer's actions constituted a stop for Fourth Amendment purposes.
Under the fourth amendment to the United States Constitution, a police officer may not stop a motor vehicle without a reasonable basis. A brief investigatory stop requires only reasonable suspicion of criminal activity rather than probable cause. The suspicion must be "specific and articulable" before such a stop is justified. Warrick v. Commissioner of Pub. Safety, 374 N.W.2d 585, 586 (Minn.App. 1985) (citations omitted). The suspicion that the officer must be able to articulate must be more than an unarticulated "hunch;" the officer must be able to point to something that objectively supports his suspicion. State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989). The stop cannot be the product of "mere whim, caprice, or idle curiosity." Id. at 827. Courts consider the "totality of the circumstances," which must be viewed from the perspective of a trained officer who may make "inferences and deductions that might well elude an untrained person." State v. Claussen, 353 N.W.2d 688, 690 (Minn.App. 1984). An actual traffic violation is not required, Warrick, 374 N.W.2d at 586, and innocent activity may justify the suspicion of criminal activity. Johnson, 444 N.W.2d at 826. The threshold required for an investigatory stop is very low. Claussen, 353 N.W.2d at 690. We evaluate an officer's investigatory stop under an objective standard, unlimited by the officer's subjective rationale. State v. Pleas, 329 N.W.2d 329, 332 (Minn. 1983).
We accept a trial court's findings unless they are clearly erroneous; we independently apply the law to the facts so found. State v. Saffeels, 484 N.W.2d 429, 430 (Minn.App. 1992), review denied (Minn. June 1, 1992). Although the trial court did not specifically make a credibility finding here, its findings suggest that it accepted the officer's testimony as true. Moreover, Demuth has not challenged any of those findings. Therefore, we face a legal question; we must "simply analyze the testimony of the officer and determine whether, as a matter of law, his observations provided an adequate basis for the stop." Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).
Demuth argues that his conduct did not constitute disorderly conduct because it consisted solely of protected speech. See Minn. Stat. § 609.72, subd. 1(3) (1994); In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978). We need not address that issue, however, because we conclude that the officer had a reasonable suspicion that disorderly conduct and other criminal activity would ensue at the restaurant.
Here the officer testified that problems with fighting, disorderly conduct, and intoxication were common at this restaurant, especially on weekend nights; that earlier that same evening such problems had occurred at the restaurant; that past conduct similar to Demuth's had provoked criminal activity at that restaurant; and that a number of people were present at the restaurant at the time of Demuth's conduct (we regard that time, 10 minutes before bar-closing on a Saturday night, as significant). In addition, because the officer was in uniform, it was reasonable for him to believe that Demuth intentionally directed his provocative conduct towards a police officer. Moreover, as the trial court objectively noted, there was reason to suspect that Demuth was under the influence of alcohol. These facts and inferences are sufficient to give rise to a reasonable, articulable suspicion of potential criminal activity. Accordingly, we hold constitutionally valid the investigatory stop of Demuth that led to his arrest and convictions.
Affirmed.
Demuth cites United States v. Bellamy, 619 A.2d 515 (D.C. 1993), in which the District of Columbia Court of Appeals held that a certain gesture by the driver did not give rise to a reasonable suspicion of a firearm violation. That case, however, is inapposite because our analysis depends entirely on the particular facts and circumstances of the case before us.