Opinion
No. CX-01-1882.
Filed July 9, 2002.
Appeal from the District Court, Stearns County, File No. T8012100.
Mike Hatch, Attorney General, and Jan F. Petersen, St. Cloud City Attorney, Janis L. Hovda, Assistant City Attorney, (for respondent)
John J. Berglund, Scott C. Baumgartner, (for appellant)
Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his conviction of third-degree DWI on the ground that the police lacked reasonable suspicion to stop his vehicle. Because we find that the officer had reasonable articulable suspicion to stop appellant's vehicle, we affirm.
FACTS
On January 25, 2001 at 1:24 a.m., Officer Martin Sayre of the St. Cloud Police Department stopped a vehicle driven by appellant after appellant's tire squealed as he accelerated from a stopped position at an intersection. As Officer Sayre identified the driver as appellant Steven Michael Bizal, he noticed obvious signs of intoxication. Appellant subsequently failed several field sobriety tests and was charged with two counts of third-degree DWI under Minn. Stat. § 169A.20, subd. 1(1), (5) (2000), and one count of open container under Minn. Stat. § 169A.35 (2000).
Appellant moved to dismiss the charges, arguing that Sayre lacked reasonable suspicion to stop his vehicle. Officer Sayre testified at the omnibus hearing that he saw appellant's tire spin as the vehicle accelerated rapidly and heard the engine rev and the tires squeal. Officer Eric Warhol, Officer Sayre's partner that night, testified to the same observations. The trial court denied appellant's motion on the ground that Officer Sayre reasonably suspected that appellant had violated St. Cloud's ordinance against unreasonable acceleration.
The parties then stipulated to the facts in the complaint and police report pursuant to State v. Lothenbach, 269 N.W.2d 854 (Minn. 1980). The state agreed to dismiss the charges under Minn. Stat. §§ 169A.20, subd. 1(1) and 169A.35 and to submit the single issue of appellant's guilt under Minn. Stat. § 169A.20, subd. 1(5), to the court. The trial court found appellant guilty of third-degree DWI under Minn. Stat. § 169A.20, subd. 1(5). This appeal follows.
DECISION
Appellant contends that the officer did not have reasonable articulable suspicion to justify the stop because Officer Sayre's trial testimony differed from the report he prepared immediately after the stop and because appellant was not cited for the ordinance violation. Appellant asserts that his case is similar to State v. Bender, 381 N.W.2d 896 (Minn.App. 1986), in which this court affirmed a trial court's finding of no reasonable suspicion when the record did not establish that the officer observed any criminal conduct justifying a stop.
When reviewing the legality of an investigatory stop, we examine the findings of fact for clear error, but review questions of reasonable articulable suspicion de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). Under the totality-of-the-circumstances test adopted by the Minnesota Supreme Court, a stop is valid if
the police who made the stop are able to articulate at the omnibus hearing that they had a particularized and objective basis for suspecting the particular persons stopped of criminal activity.
State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (quotation and citations omitted). This suspicion must be more than the product of "mere whim, caprice, or idle curiosity." State v. Harris, 572 N.W.2d 333, 337 (Minn.App. 1997) (quotation omitted). But, "if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle." State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Because reasonable suspicion is enough to justify a stop, failure to ticket the person for the suspected violation does not render the stop invalid. State v. Clark, 394 N.W.2d 570, 572 (Minn.App. 1986).
The record of the omnibus hearing clearly shows that the officers reasonably suspected that appellant violated the city ordinance prohibiting unreasonable acceleration. Both officers testified that appellant's vehicle rapidly accelerated and that they saw his tires spin and heard them squeal. Appellant's argument is, in its essence, a challenge to Officer Sayre's credibility. We will not reverse a trial court on a credibility determination where it had the opportunity to observe the witness at trial. See Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995) (stating that this court defers to the fact-finder on credibility determinations). Here, the trial court clearly credited the officers' testimony and discredited appellant's testimony.
Finally, appellant's analogy to Bender is misplaced. In Bender, this court determined that the officer lacked reasonable articulable suspicion to stop the defendant's car because the officer did not believe that the defendant had committed any traffic offenses or any other crime. Bender, 381 N.W.2d at 897-98. Instead, the officer testified that he stopped the defendant's vehicle because he subjectively felt that the car was making "excessive noise." Id. at 898. Unlike Bender, the testimony here shows that the officers reasonably suspected appellant of violating the ordinance prohibiting unreasonable acceleration. See Clark, 394 N.W.2d at 572 n. 1 (distinguishing Bender on the basis that two traffic violations could be inferred from the officer's testimony).