Opinion
No. C4-00-538.
Filed November 21, 2000.
Appeal from the District Court, Carver County, File No. T1993285.
Mike Hatch, Attorney General, and Michael A. Fahey, Carver County Attorney, Michael D. Wentzell, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, (for appellant)
Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
On appeal from a conviction for underage drinking and driving, Jason Durose argues that the investigative stop was not supported by a reasonable articulable suspicion and exceeded the scope and duration of a lawful stop. We disagree and affirm.
FACTS
On April 12, 1999, Carver County Sheriff's Deputy Timothy Koehler was dispatched to investigate a call that two four-wheel drive vehicles were operating on private property near the Lake Riley apartments in Carver County. Deputy Koehler arrived at the area and stopped two four-wheel drive vehicles that he observed operating in the undeveloped area north of the apartments. Appellant Jason Robert Durose was the driver of one of the vehicles.
Upon stepping to the window of Durose's vehicle, Deputy Koehler observed what he thought to be a gun by Durose's feet. Deputy Koehler directed Durose to exit his vehicle, handcuffed him, and placed him in the back seat of his squad car. Deputy Koehler then discovered that the gun was in fact a plastic water gun. While still in handcuffs in the rear of the squad car, Durose was questioned. During this questioning Deputy Koehler noticed an odor of alcohol coming from Durose. Another officer administered a preliminary breath test and Durose admitted to consuming one or two beers. Durose was under the legal drinking age.
Before trial, Durose moved to dismiss the charges for lack of a constitutional basis to support an investigative stop. The district court denied the motion, finding that the police acted reasonably in responding to the complaint. The district court also found that the continued detention of Durose in Deputy Koehler's squad car was reasonable.
Durose entered into a stipulation under the procedure outlined in State v. Lothenbach, 296 N.W.2d 854, 856-57 (Minn. 1980). Based on the stipulated facts contained in the complaint, the district court found Durose guilty of underage drinking and driving in violation of Minn. Stat. § 169.1218 (1998), and not guilty of four-wheeling on private property under Minn. Stat. § 84.90 (1998). This appeal followed.
DECISION
An appellate court reviews "questions of reasonable suspicion de novo" when considering the legality of an investigatory stop. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).
A police officer may make an investigatory stop of a vehicle if the officer has "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695 (1981) (footnote omitted). The Minnesota Supreme Court has defined this standard as requiring the officer to have a "`particularized and objective basis for suspecting the particular persons stopped of criminal activity.'" Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985) (emphasis deleted) (quoting Cortez, 449 U.S. at 417-18, 101 S.Ct. at 695). The factual basis for a stop may arise from information supplied by another person and does not necessarily need to be based on the officer's personal observations. State v. Warren, 404 N.W.2d 895, 896 (Minn.App. 1987). Information from a private citizen is presumed reliable. Id.
Deputy Koehler's basis for stopping Durose was for suspicion of violating Minn. Stat. § 84.90, subd. 2, which provides:
Within the seven county metropolitan area, no person shall enter and operate a recreational motor vehicle on lands not owned by the person, except where otherwise allowed by law, without the written or oral permission of the owner, occupant, or lessee of such lands.
Id. Here, Deputy Koehler received a call from dispatch that a citizen informant was complaining of two vehicles four-wheeling on private property behind the informant's apartment building. Deputy Koehler confirmed the informant's tip that the vehicles were on the property in question and that possible criminal activity was taking place. This provided a sufficient individualized suspicion to justify an investigative stop.
Durose also argues that the stop was unconstitutional because it exceeded the scope and duration of a lawful investigative stop. "[N]either the [Minnesota] nor the U.S. Supreme Court recognize a rigid time limit for the length of investigatory detentions." State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999). The scope of an investigative detention is limited to that time necessary for police officers to confirm or allay their suspicions, after which the suspect must be released unless there is probable cause to arrest. State v. McKissic, 415 N.W.2d 341, 345 (Minn.App. 1987). The primary concern is "whether the police diligently pursued a means of investigation likely to confirm or dispel their suspicions quickly." Id. at 344 (citing United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645 (1983)). "The general rule is that the detention of the person stopped may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop." State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (citing United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568 (1985)).
Durose was handcuffed and placed in the back seat of the squad car after Deputy Koehler noticed what he thought was a gun at Durose's feet. After Deputy Koehler determined that the gun was a plastic water gun, he continued to question Durose in the squad car. Once Deputy Koehler determined that he did not have probable cause to arrest Durose for illegal possession of a firearm, he should have changed the nature of the detention accordingly and released Durose from the car. Investigative stops are to be minimally intrusive. See Place, 462 U.S. at 709, 103 S.Ct. at 2645 ("[T]he brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion.").
The record is silent, however, as to how long Durose was in handcuffs in the back of the squad car. But Deputy Koehler returned to Durose soon after discovering that the gun was plastic and, almost immediately, noticed an odor of alcohol upon speaking with Durose. Under these circumstances, we cannot conclude that the length of Durose's detention was unreasonable.