Opinion
No. C4-97-1919.
Filed March 3, 1998.
Appeal from the District Court, Dakota County, File No. K597643.
Hubert H. Humphrey III, Attorney General, (for appellant)
Elliott B. Knetsch, Matthew K. Brokl, Cambell Knutson, P.A., (for appellant)
Richard A. Bowen, (for respondent)
Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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 State of Minnesota charged respondent Craig Allan Loeschke with gross misdemeanor driving under the influence of alcohol and other related offenses. The district court granted Loeschke's motion to dismiss. We reverse.
FACTS
On December 14, 1996, at about 3:00 a.m., a City of Lakeville 911 operator received a call from an employee of the Super America store located on Cedar Avenue
and 162nd Street. The employee stated that there were people drinking beer in a motor vehicle parked in the front lot of the store. Lakeville police were dispatched to the area. An Apple Valley police officer heard the vehicle description over the squad radio, spotted the vehicle about two blocks from the Super America store, followed it for several blocks, and then made a stop. At that time Lakeville police officer J. D. Erickson arrived on the scene and took over the investigation. Loeschke, the driver of the suspect vehicle, failed the breathalyzer and field sobriety tests and was arrested and charged with gross misdemeanor driving while under the influence of alcohol, open bottle, and other related violations.
Loeschke filed a motion to dismiss. The matter was submitted to the court based on a transcript of the 911 call and memoranda of counsel. The district court concluded the information was insufficient to support the stop and granted Loeschke's motion to dismiss.
We are asked to decide this case based solely on the transcript of the 911 audiotape, which is as follows:
No tape was available for this court's review. The trial court file contained two written transcriptions of the conversation. Both appear to have been prepared by counsel. Despite minor differences in the transcribed copies, there was no argument that either was inaccurate. We have quoted the respondent's version.
Female caller: Um, hi, this is Lakeville Super America up at Cedar and 162nd
Dispatcher: Yeah.
Female caller: and I have a car that's here
Dispatcher: Yeah.
Female caller: and there's a guy that just came in and there's a bunch of open bottle beers in the car
Dispatcher: Ok.
Female caller: and they're drinking. Right now the car is here. It hasn't left the store yet.
Dispatcher: What kind of car is it?
Female caller: It's a Chrys What kind of car is that?
Male (overheard): Chrysler.
Female caller: Chrysler what?
Male (overheard): Concorde.
Female caller: Chrysler Concorde.
Dispatcher: Color?
Female caller: It's a burgundy color.
Dispatcher: And it's in the front lot?
Female caller: Um hmm.
Dispatcher: It's got a plate on it?
Female caller: Yep.
Dispatcher: What is it?
Female caller: Umm813J8JXF.
Dispatcher: Ok and this is at 162 and Cedar?
Female caller: Um hmmYep.
Dispatcher: And how many people are
Female caller: Ummthree or four.
Dispatcher: Ok, now they're in the store now?
Female caller: No, no one is in the store right now. I just can't tell right now how many people are in there but the custone peopperson came in and then
Dispatcher: Uh huh.
Female caller: there was someone outside and the guy came in and said you know you guys should call the cops on them people they got a bunch of beer open bottle beers in the car.
Dispatcher: Ok
Female caller: So
Dispatcher: I'll start somebody up that way if they leave that you can get a direction of travel that'd be helpful.
Female caller: Ok, thank you.
Dispatcher: All right. Bye.
Female caller: Bye.
DECISION
The issue of whether the stop was valid is a question of law. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). A reviewing court need not give deference to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).
A police officer may not stop a vehicle without reasonable cause. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). The "stop is lawful if the officer articulates a `particularized and objective basis for suspecting the particular persons stopped of criminal activity.'" In re G.M., 560 N.W.2d 687, 691 (Minn. 1997) (citing Berge , 374 N.W.2d at 372) (quoting United States v. Cortez , 449 U.S. 411, 417-18 (1981) (emphasis in Berge )). However, the factual basis for a stop "need not arise from the officer's personal observation, but may be supplied by information acquired from another person." Marben, 294 N.W.2d at 699. Police generally may not make a stop based on "an anonymous informant's tip unless they have some minimal information suggesting the informant is credible and obtained the information in a reliable way." G.M., 560 N.W.2d at 691.
Stops based on tips have been held "valid upon a showing that there was a basis for the informant's knowledge." Playle v. Commissioner of Pub. Safety, 439 N.W.2d 747, 748 (Minn.App. 1989). Information received from a private citizen is presumed reliable. Marben, 294 N.W.2d at 699. In Marben, the supreme court reasoned that the trooper could verify the trucker-informant's close proximity to the suspect car which suggested the information was based on the trucker-informant's personal observations of the suspect car. Id. In State v. Davis, 393 N.W.2d 179, 180 (Minn. 1986), a passenger in a car pulled up to a police officer and told him that the car behind her just ran a red light. The court held that the police officer had a strong basis for thinking the informant had obtained her information in a reliable way because the informant or the driver had seen the car in question drive through a red light and there was a "face-to-face confrontation between the tipster and the officer." Id. at 181. Additionally, in City of Minnetonka v. Shepherd, 420 N.W.2d 887, 888-891 (Minn. 1988), the supreme court held the tip reliable where the caller identified himself as an attendant at a particular gas station and the facts "suggested that the driver had been in the station and that the caller's information was based on personal observation of the driver himself."
Loeschke relies on three cases. In Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552 (Minn. 1985), nothing was known about the informant and nothing was known about the reasons or basis for the informant's knowledge. Id. at 556. Thus, there was no particularized factual basis for suspecting criminal activity and reliability could not be inferred. Id. In another case, a dispatcher conveyed a tip that an intoxicated person was driving without a license. State v. Hjelmstad , 535 N.W.2d 663, 664 (Minn.App. 1995). The stop was held invalid because there was no information about the informant to verify the tip. Id. at 666. Finally, in Schwartz v. Commissioner of Pub. Safety , 422 N.W.2d 761, 762 (Minn.App. 1988), this court held that because the officer had no other information about the informant, other than his location, there was an insufficient basis for the stop. Olson, Hjelmstad and Schwartz are not analogous to the instant case.
Here, the tip is based on personal observations and the caller-clerk can be tracked down and may well be able to identify the customer. The customer is heard on the 911 tape assisting the clerk in identifying the vehicle in question which shows reliability. In fact, it appears that much of the information given by the clerk was from her own personal observations.
We note that on questioning by this court, the state's counsel advised that the clerk from the Super America store was present in court and prepared to testify at the hearing on Loeschke's motion to dismiss.
We conclude, based on Marben , that the trial court erred.
Reversed.
I respectfully dissent and would affirm the trial court. That court found that "the 911 caller did not personally observe any illegal conduct on the part of [appellant] or the other occupants of the vehicle" and "there is nothing in the record to indicate the source of her information * * * is a reliable informant."
Deference is owed to the trial court determinations, I believe, and therefore we are not justified in relying on City of Minnetonka v. Shepherd , 420 N.W.2d 887, 890-91 (Minn. 1988) (tip reliable where caller was gas station attendant and facts suggested that information was based on personal observation); State v. Davis , 393 N.W.2d 179, 181 (Minn. 1986) (police officer had basis for thinking information was reliable because the passenger or the driver of the vehicle witnessed the suspect vehicle run a red light); and Marben v. State , 294 N.W.2d 697, 699 (Minn. 1980) (informant's proximity to suspect car suggested that the information was based on personal observation and therefore enhanced its reliability).
Here, the 911 audio tape does not reveal whether the clerk was relying on her own personal observations or those of the unidentified customer. The caller made two references to the fact that the occupants of the vehicle had open bottles of beer in the car. First, the caller said: "I have a car that's here * * * and there's a guy that just came in and there's a bunch of open bottle beers in the car." In the second instance, the caller said: "[T]here was someone outside and the guy came in and said you know you guys should call the cops on them people they got a bunch of beer open bottle beers in the car."
In both instances, it appears that the source of the caller's information was an unidentified customer, a proposition fully consistent with the trial court's determination that there was nothing in the record to indicate that "the source of [the caller's] information, the unidentified `guy,' is a reliable informant."
Mindful of the deference owed to the trial court in this matter, I recognize the continuing effort courts are called upon to make in distinguishing and discriminating between " Marben -type" cases and cases following Olson v. Commissioner of Pub. Safety , 371 N.W.2d 552, 556 (Minn. 1985) (holding that reliability could not be inferred when nothing was known about the informant or his factual basis for suspecting criminal activity). See, e.g., State v. Hjelmstad , 535 N.W.2d 663, 665 (Minn.App. 1995) (tip unreliable because nothing known about the informant to verify the tip); and Schwartz v. Commissioner of Pub. Safety , 422 N.W.2d 761, 762 (Minn.App. 1988) (holding that tip was unreliable when the police had nothing more than the location of the informant and distinguishing Shepherd because there was no way of holding informant accountable for false information). I submit this case is more like the " Olson -type" cases.
In this case, as in Olson , Hjelmstad , and Schwartz , there is not sufficient information about the informant to create the "indicia of reliability." See Olson , 371 N.W.2d at 556. As a result, the court could be subjecting itself to "the mere whim of an anonymous" informant. Id.
Finally, although I take no issue with the majority's observation that perhaps the caller in this case would be available to testify, the facts as determined by the trial court indicate that the caller would be in no better position to testify than would the 911 operator who received the information over the phone.
The trial court's determinations that "the 911 caller did not personally observe any illegal conduct" and that "the `guy' is an anonymous informant, and the basis for his statement * * * cannot be determined," merit deference, I believe. I would grant that deference and affirm.