Opinion
No. A06-1267.
Filed May 29, 2007.
Appeal from the District Court, Lake County, File No. 38-CR-05-429.
Lori Swanson, Attorney General, St. Paul, MN, and Russell H. Conrow, Lake County Attorney, Two Harbors, MN, (for respondent).
Deborah A. Macaulay, St. Paul, MN, (for appellant).
Considered and decided by Randall, Presiding Judge, Willis, Judge, and Crippen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
John Waldron appeals from his conviction for gross misdemeanor driving while impaired, arguing that the district court erred because police officers did not have an articulable suspicion of criminal activity when they made the initial investigatory stop; the officers did not have probable cause to arrest him; and the evidence is insufficient to show that he was driving or in actual physical control of a motor vehicle while impaired by alcohol. Because the police officers had a reasonable suspicion of criminal activity based on a credible tip by a citizen informant to make an investigatory stop, and because there is no merit to appellant's other contentions, we affirm.
FACTS
On August 14, 2005, David Baldes, a clerk at the Citgo gas station in Two Harbors, called police dispatch to report that two possibly intoxicated men, who had been bothering customers, left the Citgo on motorcycles, heading west on Seventh Avenue. Baldes gave a Minnesota license plate number, 24517, for one of the motorcycles.
Deputy Sheriff Corey Johnson was nearby, responded within minutes, and spotted two motorcycles in the parking lot of the Viking Bait and Tackle Shop, which was closed, a few blocks west of the Citgo on Highway 61. One of the motorcycles had Minnesota license plate 24517. Johnson pulled his squad car into the parking lot and was joined shortly thereafter by Officers Kristina Schulte and Richard Hogenson of the Two Harbors Police Department.
Johnson spoke to the two men, appellant and Robert Arra. Both men were smoking as they stood beside the motorcycles, which were apparently not running. Johnson asked for identification and noted an odor of alcohol about the two men. He asked them to take a preliminary breath test, which showed that both men were over the legal blood alcohol limit. Both men admitted that they had been drinking earlier and that they had driven up from the Twin Cities.
Schulte administered some field sobriety tests, such as walking a line with a pivot turn, a balance test, and a horizontal gaze nystagmus test. Although she was unable to explain the physiological reason for giving these tests, she testified that she followed department instructions, which stated how each test was to be administered and what to look for in order to determine if someone failed the test. She indicated that neither man was entirely successful in performing the field sobriety tests. None of the officers observed appellant or Arra driving. One motorcycle was registered to Arra, the other to a Seamus Mahoney; this motorcycle had the license plate number reported by Baldes. There was no one else in the parking lot.
An omnibus/implied consent hearing was held jointly with appellant and Arra. In December 2005, the district court issued its order denying appellant's motion to dismiss or suppress evidence, and revoking appellant's driving privileges. In March 2006, appellant waived his right to a jury trial and submitted the matter to the court in a Lothenbach proceeding. In April, the court returned a verdict of guilty. Pending appeal, the court stayed execution of its subsequently imposed sentence.
DECISION
Investigatory Stop
In order to make an investigatory stop, police must have a reasonable and articulable suspicion of criminal activity. State v. Fort, 660 N.W.2d 415, 418 (Minn. 2003). But police may approach and speak with a person in a public place or a parked car without converting the encounter into a stop or seizure. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Appellant first argues that the police acted here on information given by an anonymous tipster whose credibility was not proven. "The factual basis necessary to maintain a routine traffic stop is minimal and need not arise from an officer's personal observations . . . [but] may also be supplied by information acquired from another person, including an informant." Rose v. Comm'r of Pub. Safety, 637 N.W.2d 326, 328 (Minn.App. 2001), review denied (Minn. Mar. 19, 2002). A private citizen, who is identifiable and can be located, is presumed to be reliable. Id. Here, the informant was not anonymous. He was identified by name (David Baldes), location (the Citgo station), and position (clerk at the Citgo station).
Even if reliable, the informant must provide enough facts to support the assertion that a driver is under the influence. Id. Appellant argues that David Baldes failed to furnish enough information to establish reasonable suspicion. But Baldes reported that the motorcyclists were intoxicated and had been "harassing customers"; that these men were traveling as a pair; that they proceeded westerly as they left the station; that the reported behavior occurred only moments before appellant and Robert Arra were seen by officers; that the observation occurred at the Citgo station, only blocks from where the men were seen; and that one of the motorcycles had a license numbered 24517. This information was detailed and adequately permitted the officers to identify suspects.
Finally, appellant contends that the officers who stopped appellant had no reasonable suspicion that he and Robert Arra were the men seen by David Baldes. Appellant particularly disputes whether the record adequately shows that officers saw the matching cycle license number before the investigatory stop occurred. But appellant and Arra were found as a pair of persons next to two motorcycles, the stop occurred only blocks from the reported misconduct and moments thereafter, and it occurred at a place in the direction the cyclists were reported traveling. Moreover, the testimony of Deputy Johnson indicates what is otherwise undisputed, that the cycles he observed as he lawfully approached appellant and Arra matched the description given by Baldes, an observation that he made at least minutes before any stop arguably occurred as a result of other officers blocking a drive to the lot where the men were approached. Mindful that the factual basis to support an investigatory stop is minimal, this information amply provided the officers with the necessary factual basis for a reasonable and articulable suspicion of criminal behavior, which is the basis for a proper investigatory stop.
Probable Cause
An officer has probable cause to arrest a person for driving while impaired when, "based on the totality of the circumstances, there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the person was in physical control" while impaired. Shane v. Comm'r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (quotation and footnote omitted). This court reviews a determination of probable cause as a question of law. Id.
The DWI statutes prohibit not only driving or operating a vehicle, but also being in physical control of a motor vehicle while impaired. Minn. Stat. § 169A.20, subd. 1 (2004). The question of what is physical control of a motor vehicle is one that is given "the broadest possible effect." State, Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981); see accord, Shane, 587 N.W.2d at 641.
[A] person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle, and this is true whether the vehicle can be driven upon the highway at that point or not.
State v. Hendricks, 586 N.W.2d 413, 415 (Minn.App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999). "[P]hysical control is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property." State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992).
In Starfield, police responded to a report of a car stuck in a snow-filled ditch. Id. at 835. The headlights were on but the motor was not running, and the driver could not find the ignition keys. Id. The supreme court nevertheless concluded that the jury had properly found that the defendant was in physical control of the vehicle. Id. at 839-40. The supreme court noted that despite the lack of direct testimony that the defendant had driven the car into the ditch, circumstantial evidence could provide a foundation for the jury's decision that she had driven the car to its resting place. Id. at 838.
Circumstantial evidence supports a finding of probable cause that appellant was driving or in physical control of the motorcycle while impaired. As reported above, officers had reason to suspect that the report of David Baldes, including the description of a cycle license number, concerned appellant and Robert Arra. In addition, Deputy Johnson found that appellant and Arra were the only people in the parking lot, and officers learned that appellant showed distinct signs of impairment by alcohol and failed a preliminary breath test.
Based on all these circumstances, the arresting officers had probable cause to believe that appellant had driven a motorcycle and was in physical control of a motorcycle, all while impaired by alcohol.
Sufficiency of the Evidence
This court reviews a claim of insufficiency of the evidence to determine whether the record facts and legitimate inferences drawn from those facts would permit a fact-finder to conclude that the defendant was guilty of the offense. Bernhardt v. State, 684 N.W.2d 465, 476 (Minn. 2004). Evidence is viewed in the light most favorable to the verdict. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995).
Circumstantial evidence is entitled to the same weight as direct evidence, but is more closely scrutinized; a conviction based on circumstantial evidence will be affirmed if the reasonable inferences drawn from the evidence are inconsistent with any rational hypothesis other than the defendant's guilt. State v. Gates, 615 N.W.2d 331, 337-38 (Minn. 2000).
Appellant challenges the sufficiency of the evidence that he was driving or in physical control of the motorcycle. We conclude that there was sufficient direct and circumstantial evidence in the Lothenbach proceeding to permit the district court to make a finding of guilt. The Baldes report indicated that two men were intoxicated, which was confirmed by the officers who dealt with appellant and Robert Arra. As set forth above, there were numerous facts suggesting that appellant was one of the men seen by Baldes. Beyond this, appellant admitted that he had driven the motorcycle earlier in the day.
Although much of the evidence that appellant drove or was in physical control of the motorcycle is circumstantial, it forms a "complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt." State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994) (quotation omitted). The evidence is sufficient to sustain appellant's conviction.