April 9, 1996
KAREN ANN PRANGE, PETITIONER, APPELLANT,
STATE OF MINNESOTA, RESPONDENT.
Appeal from District Court, Ramsey County; Hon. Bertrand Poritsky, Judge. District Court File No. C3-95-60032.
Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
The opinion of the court was delivered by: Randall
Appellant challenges the district court's decision to sustain the revocation of her driver's license following an implied consent hearing. We affirm.
Early one morning in May 1995, Officer Michael Reuss received two radio calls within six minutes of one another from a police dispatcher relaying information about two calls from an Embers restaurant. After the first call, the dispatcher reported a possible disorderly customer problem at Embers. After the second call the dispatcher reported that a possibly drunk driver was leaving the same restaurant.
Immediately following the first call, Officer Reuss went to the restaurant to investigate. A night manager at the restaurant informed Reuss that he had just called the police about a disorderly customer problem. The night manager stated that he did not think that the customers he called about were creating a disturbance, but he felt that three female customers in the restaurant were possibly intoxicated. The manager pointed out the women to Reuss, who looked at them in their booth from his position in the front of the restaurant. Officer Reuss testified that in viewing the three women, they did not appear to be disorderly or causing any problems. Reuss spent a short time in the restaurant and left.
Within six minutes of leaving the restaurant, Reuss received a second radio call from a police dispatcher. The dispatcher informed Reuss that a caller "from the Embers" had reported that a white vehicle with a particular license plate number "was leaving with three females in it that were possibly intoxicated."
From his position around the corner from the Embers restaurant, Reuss noticed a car, matching the description of the automobile identified by the dispatcher, leaving the Embers parking lot. Reuss followed the vehicle in his car for about a distance of one-half mile. As he followed the white car, Reuss claimed he saw the driver commit the following errors: (1) signalling in the middle of a turn, instead of 100 feet in advance; (2) making a "wide turn" at another intersection. Reuss also testified that he observed an object hanging from the rearview mirror of the white car, which would be a technical violation of the law.
Approximately two-and-one-half blocks beyond the intersection where Reuss said he witnessed the wide turn and noticed the object in the car's windshield, he signalled for the car to pull over to the side of the road. After administering various field sobriety tests to the driver of the white car, Reuss arrested appellant for driving while under the influence of alcohol.
Reuss returned to the Embers restaurant after making the arrest. He then confirmed that the person who had placed the second call to the police from Embers was the night manager with whom he had spoken after the first call.
Appellant's driver's license was subsequently revoked for one year, because she refused to submit to testing for intoxication. Following appellant's petition for judicial review of the revocation, the district court held an implied consent hearing and sustained the revocation.
Appellant argues that Officer Reuss's stop was unconstitutional because he did not have an articulable suspicion to stop, and thus the district court should have rescinded the revocation of her driver's license.
When an appellate court reviews a stop based on given facts, the test is whether, as a matter of law, the basis for the stop was adequate. City of St. Paul v. Uber, 450 N.W.2d 623, 625 n.1 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990). To make a constitutionally valid stop, an officer must first have "specific and articulable suspicion of a violation." Marben v. State, 294 N.W.2d 697, 699 (Minn. 1980). To establish the existence of specific and articulable suspicion,
all that is required is that the stop be not the product of mere whim, caprice or idle curiosity.
Id. When an officer bases a stop on an anonymous tip, the tip must have some indicia of reliability before it can justify a stop. Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985) (police cannot stop on the basis "of the mere whim of an anonymous caller").
In support of her argument that Reuss did not have specific and articulable suspicion of a violation before stopping her vehicle, appellant claims that the facts of this case are similar to those of State v. Hjelmstad, 535 N.W.2d 663 (Minn. App. 1995). In the Hjelmstad case, this court found a stop to be invalid where an officer stopped a vehicle after receiving one call from a police dispatcher about a single anonymous tip giving a description of a vehicle with an allegedly intoxicated driver who was heading in a particular direction and who did not have a valid driver's license. Id. at 664-67. The officer did not corroborate the tip with any observations of erratic driving. Id. at 666 (driver merely hesitated four seconds before making turn as traffic signal changed to green). Appellant asserts that, because the vague dispatch to Officer Reuss regarding a possibly drunken driver provided no more information than the call that was found to be inadequate for the stop in Hjelmstad, the stop here must also have been invalid. We recognize the Hjelmstad analogy and we agree the case is close. But on these facts, the officer here had more and better corroboration than in Hjelmstad. If Reuss had based his stop of Prange's vehicle on nothing more than one call from the dispatcher about three "possibly intoxicated" women leaving Embers, these facts would be closer to Hjelmstad. But unlike the officer in Hjelmstad, Reuss had more information available to him than just a purely anonymous tip.
Reuss had first been called to the Embers where he talked directly to the night manager and had identified to him three women that the night manager thought were possibly intoxicated. Six minutes after acquiring this information personally, Reuss received a second dispatch about a call from the same restaurant. The dispatcher told Officer Reuss that a caller "from the Embers" reported that three possibly intoxicated women were leaving the restaurant in a white car. The dispatcher did not give Officer Reuss any further identifying information at that time about the person who had made the second call. Nevertheless, soon after the arrest, Officer Reuss returned to the Embers and learned that the person who had made the second call was the night manager with whom he had spoken after the first call. Although the night manager perhaps had not identified himself to the dispatcher on the second call, Reuss's ease in confirming the manager's identity as the second caller provided Reuss with sufficient information to hold the manager accountable for his tip and to make the tip reliable. See Minnetonka v. Shepherd, 420 N.W.2d 887, 890 n.1 (Minn. 1988) (finding adequate basis for stop where caller identified himself as gas station attendant and police subsequently located him with ease). Also, Reuss could reasonably have concluded when he received the second call from the dispatcher that the unnamed source of the information was the same night manager to whom he had spoken personally a few minutes before.
It is significant that the trial court did not make specific findings stating that Reuss's alleged observations of the improper signal and "wide turn" justified the stop. *fn1
The individual facts of the claimed driving violation would have provided Officer Reuss with only a weak basis for a stop. Our review here, however, requires us to consider the totality of the information available to Officer Reuss before he made the stop. That review leads us to conclude the trial court acted properly in finding that Reuss, considering the totality of the information available to him, made a proper stop. See United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981) ("The totality of the circumstances * * * must be taken into account.").
R. A. Randall