Opinion
No. C9-02-1074.
Filed January 28, 2003.
Appeal from the District Court, Scott County, File No. 2002-00568.
Richard L. Swanson, Thomas A. Volk, (for respondent)
Mike Hatch, Attorney General, Max A. Keller, Assistant Attorney General, (for appellant)
Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Commissioner of Public Safety challenges the district court's order rescinding the revocation of respondent Nicole Ann Steinhaus's driver's license, arguing that the district court erred in ruling that an identified informant's tip as to Steinhaus's driving conduct did not provide reasonable, articulable suspicion for the stop. Because there were objective facts creating a reasonable, articulable suspicion to justify an investigatory stop, we reverse.
FACTS
While on patrol, Jordan police officer Dale Larson received a call from his dispatcher stating that an informant reported that a car traveling near him was "all over the road." The informant gave the color and license number of the car, identified himself, and gave his telephone number.
Officer Larson spotted the car and began to follow it. At this point, the car was not being driven "all over the road," but it did make an abrupt turn. Based on the informant's tip, Larson stopped the car and eventually arrested Steinhaus for driving while under the influence of alcohol. The Commissioner of Public Safety revoked her driver's license.
Steinhaus challenged the revocation of her driver's license in an implied consent hearing. The sole issue on appeal is whether the informant's tip provided the police with sufficient reasonable, articulable suspicion to justify the stop. The district court concluded that the stop was unlawful and rescinded the license revocation. The Commissioner of Public Safety appeals.
DECISION
The facts of this case are not disputed. When the facts are not disputed, we review the validity of a stop as a matter of law. Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).
Conclusions of law will be overturned only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case.
Dehn v. Comm'r of Pub. Safety, 394 N.W.2d 272, 273 (Minn.App. 1986) (citation omitted). We must determine as a matter of law whether the identified informant's tip was sufficient to provide the officer with reasonable, articulable suspicion that supported an investigatory stop of Steinhaus. We review the propriety of an investigatory stop de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).
Under the Fourth Amendment, a police officer may not stop a vehicle without a specific and articulable suspicion of a violation of the law. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968); Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). The factual basis necessary to justify a routine traffic stop is minimal and need not arise from an officer's personal observations. Marben, 294 N.W.2d at 699. The requisite factual basis may be supplied by information acquired from another person, including an informant. Id. A private citizen who provides information relevant to the stop is presumed reliable. Id.
Minnesota caselaw involving traffic stops based on informant tips has focused on two factors: (1) provision of sufficient identification of the informant, Rose v. Comm'r of Pub. Safety, 637 N.W.2d 326, 328 (Minn.App. 2001); review denied (Minn. Mar. 19, 2002); and (2) at least a modicum of specificity as to why the citizen believes the suspect driver might be engaging in illegal behavior, Olson v. Comm'r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985). Neither factor is separately dispositive, and the determination of whether the officer had a reasonable suspicion of criminal activity at the time of the stop is based on the totality of the circumstances. Jobe v. Comm'r of Pub. Safety, 609 N.W.2d 919, 921 (Minn.App. 2000).
1. Identifying Information Provided by the Informant
The informant in this case is adequately identified, and therefore is presumptively reliable. See Marben, 294 N.W.2d at 699. The court found and the record shows that the informant provided the requisite information by identifying himself and giving a phone number where he could be reached. Jobe, 609 N.W.2d at 921-22. Thus, the first requirement for informant tips is satisfied.
2. Supporting Facts
An investigatory stop need not be accompanied by a police officer's personal observations; factual information may come solely from an informant. Marben, 294 N.W.2d at 699. Here, the factual basis for the stop came exclusively from the informant's personal observations. The court found and the record shows that the identified informant called a Scott County police department's dispatcher and (1) reported that he was on the same roadway as Steinhaus's car; (2) identified the road on which Steinhaus was traveling; (3) identified the car as red with a Minnesota license number DHJ-284; and (4) described his personal observation that Steinhaus's car was "all over the road."
The Commissioner of Public Safety argues that the informant's description of the driving as "all over the road" is sufficient to support the stop because driving all over the road is a violation of traffic laws. See Minn. Stat. § 169.18, subd. 1 (2002) (stating that a "vehicle shall be driven upon the right half of the roadway"); State v. Richardson, 622 N.W.2d 823, 825-826 (Minn. 2001) (holding deputy's independent observation of erratic driving, which included crossing of fog line, after receiving report from another driver that vehicle was "all over the road," was sufficient to support the stop); State v. Wagner, 637 N.W.2d 330, 336 (Minn.App. 2001) (holding crossing of centerline is a violation of traffic laws and will generally provide the officer with an objective, reasonable suspicion to conduct investigatory stop).
Steinhaus argues that the stop was illegal because the informant's conclusion that Steinhaus's car was "all over the road" provided an insufficient factual basis under the Rose case. See Rose, 637 N.W.2d at 329-30 (holding sole reliance on informant's tip that driver was "possibly drunk" insufficient to provide a legal basis for a stop).
This case is distinguishable from Rose. In Rose, the informant gave a mere conclusion without identifying the observable facts underlying the conclusion. Id. It cannot be ascertained from the informant's conclusory tip regarding a "possible drunk driver" what suspicious driving conduct reasonably led the informant to that belief. Thus, Rose dealt with a conclusion without an articulable factual perception. Here, the informant's tip describes a sense perception, an observable, articulable fact. And because the described sense perception revealed illegal driving conduct, the requisite factual basis for the stop existed. See Marben, 294 N.W.2d at 698 (holding stop lawful based on anonymous trucker's report that a vehicle had been following him "just about under his trailer").
An informant is not required to give much detail. Rather, the
caller must provide at least some specific and articulable facts to support the bare allegation of criminal activity. Not much is required, especially for a traffic stop for a suspected traffic offense then in progress. "All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity."
Olson, 371 N.W.2d at 556 (quotation omitted).
Even a minor traffic violation can support an investigatory stop. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Furthermore, the driving conduct need not be per se a violation of the law as long as it is sufficient to raise the suspicion of illegality. See Olmscheid v. Comm'r of Pub. Safety, 412 N.W.2d 41, 42 (Minn.App. 1987) (upholding an investigatory stop where police stopped a car on a dead-end street behind a business after hours that previously experienced theft without having observed any illegal activity or driving conduct and without having received any report of illegal activity), review denied (Minn. Nov. 6, 1987).
The district court found the facts insufficient here because the informant did not identify some ultimate illegality, such as "there's a drunk in front of me." Neither an informant nor a police officer is required to identify the ultimate illegality stemming from the observed conduct. Rather, there need only be some objectively observable conduct that can be described and that reasonably arouses suspicion that there might be illegal behavior afoot. The requirement was satisfied here, and the district court erred in rescinding the revocation of Steinhaus's driver's license.