Opinion
No. C3-98-1145.
Filed April 13, 1999.
Appeal from the District Court, Hennepin County, District Court File No. 97118419.
Mike Hatch, Attorney General, and Jay M. Heffern, Minneapolis City Attorney, Cheri A. Townsend, Assistant Minneapolis City Attorney, (for respondent).
John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, (for appellant).
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
After a jury trial, appellant Dale Carroll Johnson was found guilty of carrying a pistol without a permit pursuant to Minn. Stat. § 624.714, subd. 1(a) (1996), and refusal to submit to chemical testing pursuant to Minn. Stat. § 169.123, subd. 4(a) (Supp. 1997). Prior to trial, the court found the police officer legally performed a search and seizure, and, as a result, evidence seized and used to convict Johnson was admissible. Johnson appeals this ruling and argues the police officer was not justified in arresting him and performing a full custodial search. We affirm.
FACTS
On December 30, 1997, at approximately 6:00 p.m., Officer John Giovinco was northbound on Interstate 35W in the City of Richfield. In his rearview mirror, Giovinco saw a van passing him at a high rate of speed. Giovinco estimated that the van was going approximately 70 miles per hour. He moved behind the van and turned on his emergency lights in an attempt to make a traffic stop. The van did not appear to notice his emergency lights (or did not stop for other reasons), so Giovinco activated the rest of his light bar, got on the PA system, and instructed the driver to pull to the right and stop. The van slowed but continued northbound on 35W. Officer Giovinco turned on his full emergency equipment, which included the siren, remaining lights, and spotlight and continued behind the vehicle. Giovinco again ordered the driver to pull to the right and stop.
Giovinco reported to dispatch that he was behind a vehicle that was not responding to his requests. A second trooper joined Giovinco at 60th Street and came in behind him with emergency equipment activated. When the van continued on, Giovinco pulled up alongside it, got on the PA, and again told the driver of the van to pull over. His requests continued to be ignored. The van finally exited at the 46th Street ramp, slowed, and stopped. The pursuit was approximately a mile and a half.
Giovinco and the second officer initiated a "felony stop" procedure because they felt they were engaged in a slow speed pursuit. Giovinco explained that a "felony stop" is where the officers are concerned for their own safety and the safety of others in the area. The two officers got behind the van with their weapons drawn. Giovinco instructed the driver to shut off the van and stated that he needed to see the hands of both the driver and the passenger. Giovinco testified he was not getting much compliance. Meanwhile, a third squad car arrived at the scene.
Giovinco ordered the driver to get out of the van. Finally, after several minutes the driver, later identified as appellant Dale Carroll Johnson, slowly got out of the van. Giovinco told Johnson to walk backwards towards him and to keep his hands up. Johnson did not immediately comply. Giovinco noticed Johnson was not going to walk back any further, so he told Johnson to kneel down, and Giovinco left his "safe zone" near the car to go over and handcuff Johnson. Once Giovinco had the first handcuff on Johnson, Johnson moved his free hand away from behind his back. At that point, Giovinco did a "wristlock takedown." That forced Johnson to the ground, and another officer assisted Giovinco with the handcuffs. They did a quick pat search for safety reasons. A handgun was not found during the pat-down, but was found later at the Hennepin County Jail.
Giovinco smelled a strong odor of alcohol on Johnson. Another officer got the second person out of the van, and Giovinco transported Johnson to his squad car. Giovinco observed that Johnson had glassy, watery, bloodshot eyes. Giovinco stated the odor of alcohol was stronger once Johnson got into the squad car and testified that Johnson did not volunteer any explanation as to why he did not yield to the police officer. Giovinco also noticed Johnson had confused, slurred speech. Giovinco put Johnson under arrest for DWI. He did not administer any field sobriety tests at the time because Johnson was uncooperative and would not take any of the tests. Giovinco read Johnson the Implied Consent Advisory. Johnson stated that he was acting as his own attorney, he refused everything, and he told the officer to take him to jail. The officers then completed a custody inventory of the van and found an open bottle of vodka in the front seat.
Johnson disputed the officer's testimony. He claimed he was not speeding. Johnson testified that at first when he saw the squad car with lights on, he did not think the officer was after him. Johnson claimed he was unable to pull to the right immediately because there was no safe place to pull over. Around 46th Street, Johnson realized the officer was after him, so he went up the ramp, turned the engine off, and waited for the officer to come ask for his driver's license. Johson stated that he had a hard time complying with the officer's orders to get out of the van because he is 66 years old and has limited mobility. He testified that he has diabetes and is hard of hearing. Johnson claimed he told Giovinco he was not trying to resist arrest, he was just having trouble putting his hands behind his back.
The jury found Johnson guilty of carrying a pistol without a permit and failing to submit to a chemical test. For the pistol charge, Johnson was sentenced to 365 days in jail. For the chemical-test charge, Johnson was sentenced to 180 days in jail and fined $210.
DECISION
Johnson argues he was under arrest when the officers stopped his van, drew their weapons, and handcuffed him. We agree. But we conclude Giovinco initially had an objective basis for stopping Johnson. See Berge v. Commissioner of Pub. Safety , 374 N.W.2d 730, 732 (Minn. 1985) (holding traffic stop is lawful if officer is able to articulate particularized and objective basis for suspecting persons of criminal activity). In response to Johnson's lack of compliance, the officers began a felony-stop procedure. At the time Giovinco handcuffed Johnson, he was under arrest. See State v. Blacksten , 507 N.W.2d 842, 846 (Minn. 1993) (holding suspect was under arrest from time he was ordered to the ground at gunpoint, handcuffed, and put in squad car); State v. Carver , 577 N.W.2d 245, 248 (Minn.App. 1998) (holding suspect was under arrest at time he was placed in handcuffs).
Johnson argues that if there was articulable suspicion to stop him, there was no probable cause to arrest him. We disagree. First, because this issue affects constitutional rights, we court review the facts de novo. State v. Moorman , 505 N.W.2d 593, 599 (Minn. 1993). The test for probable cause is:
[W]hether the officers in the particular circumstances, conditioned by their own observations and information and guided by the whole of their police experience, reasonably could have believed that a crime had been committed by the person to be arrested.
State v. Olson , 436 N.W.2d 92, 94 (Minn. 1989) (citation omitted), aff'd , 495 U.S. 91, 110 S.Ct. 1684 (1990). Each case is decided based on its own facts and circumstances. State v. Harris , 265 Minn. 260, 264, 121 N.W.2d 327, 331 (1963). Whether the officer's actions were reasonable is an objective inquiry and is not dependent on the officer's subjective frame of mind at the time of the arrest. State v. Speak , 339 N.W.2d 741, 745 (Minn. 1983).
Fleeing or attempting to flee a police officer is a felony. Minn. Stat. § 609.487, subd. 3 (1998).
For purposes of this section, the term "flee" means to increase speed, extinguish motor vehicle headlights or taillights, or to use other means with intent to attempt to elude a peace officer following a signal given by any peace officer to the driver of a motor vehicle.
Id. , subd. 1 (1998) (emphasis added). The record indicates several facts, including but not limited to the following that support the trial court's finding of probable cause. When Giovinco turned on his lights, Johnson continued to drive for more than a mile even though Giovinco ratcheted up the "pull-over signals" emanating from his car, including multiple flashing lights and a loud speaker. According to Giovinco, there were several safe places for Johnson to stop alongside the road long before he finally pulled over and before there were the two squad cars needed to get Johnson to finally pull over. When Johnson finally stopped his vehicle, based on his previous conduct, the officers had an objective basis to be suspicious and go into felony-arrest procedure. Johnson appeared to Giovinco to be evasive, as he appeared slow to respond to the officer's request, and was pulling his hand away when Giovinco attempted to handcuff him. Cf. State v. Varnado , 582 N.W.2d 886, 890 (Minn. 1998) (holding search unreasonable where traffic violation fully cooperated with officer's requests and did not make any furtive or evasive movements). Although Johnson now provides explanations for his failure to stop the van and to comply with the officer's orders, Giovinco could only interpret what was in front of him at the time. See State v. Ailport , 413 N.W.2d 140, 143 (Minn.App. 1987) (holding police officer's actions must be judged according to circumstances existing at time of stop), review denied (Minn. Nov. 18, 1987). Giovinco reasonably could have believed Johnson was attempting to flee. Based on the totality of the circumstances, Giovinco had probable cause to arrest Johnson for fleeing a police officer. The district court properly found the search and seizure lawful.