State of Minnesota, Appellant, vs. Allan Lee Hirschuber, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-867

State of Minnesota,

Appellant,

vs.

Allan Lee Hirschuber,

Respondent.

Filed October 5, 2004

Reversed and remanded

Lansing, Judge

Olmsted County District Court

File No. K5-03-4845

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, Jeffrey D. Hill, Assistant County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for appellant)

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Suite 140 2499 Rice Street, Roseville, MN 55113-3724 (for respondent)

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The state appeals a pretrial order suppressing evidence and dismissing charges of driving after revocation, failure to provide vehicle insurance, and unlawful use of an unregistered vehicle.  Because a discrepancy between Hirschuber's displayed license tabs and data from the officer's mobile computer terminal combined with Hirschuber's evasive driving provided the officer with a reasonable, articulable basis for the investigative stop, we reverse and remand.

F A C T S

An Olmsted County deputy sheriff observed Allan Hirschuber's car pulling away from a stop sign in the City of Oronoco.  The officer thought that the speed at which Hirschuber pulled away from the squad suggested evasive action and ran a check of the vehicle's license.  The registration tab affixed to the rear license plate showed a current 2004 tab, but the computer showed that the registration had expired in 2002.  As Hirschuber pulled into a parking lot, the officer turned on his lights and stopped Hirschuber's car. 

In the course of the stop, the officer ascertained that Hirschuber's license was revoked, that the car was uninsured, and that the car had a tab on the back plate registered to a different vehicle and a tab on the front plate registered to yet another vehicle.  The back tab was for 2004 and the front tab was for 2003.  The officer issued three citations: driving after revocation, failure to provide vehicle insurance, and unlawful use of an unregistered vehicle.

            Hirschuber moved to dismiss all charges and to suppress all statements and evidence acquired after the stop.  At the contested omnibus hearing, the state introduced a videotape of the forty-minute exchange.  On the videotape the officer explained to Hirschuber that he stopped him because of the discrepancy between the 2004 tab and the system's records.  Near the end of the videotape the officer further explained to Hirschuber that he had first caught the officer's attention and prompted the computer check because of how quickly he had pulled away from the squad car. 

The district court concluded that the officer lacked a reasonable, articulable basis for the stop and dismissed the charges.  The state appeals the suppression order and the dismissal.

D E C I S I O N

The state may obtain reversal of a district court's pretrial order in a criminal prosecution only if it demonstrates clearly and unequivocally that the district court erred in its judgment and that the error will have a critical impact on the outcome of the trial.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998). The dismissal of the state's case resulting from the suppression of evidence establishes critical error because it bars the state from prosecuting its case.  See State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997) (determining that dismissal of charges following suppression of all evidence clearly meets requirement of critical impact). 

When the district court's decision to suppress is a question of law that does not involve a factual dispute, the reviewing court independently reviews the facts and determines, as a matter of law, whether the evidence must be suppressed.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  If facts are at issue, the district court's suppression findings are reviewed for clear error; the ultimate determination of reasonable suspicion is a question of law, which is reviewed de novo.  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996)).

The Fourth Amendment to the United States Constitution and Article I of the Minnesota constitution provide protection against unlawful searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  An investigatory stop of an automobile is a permissible seizure of a person if based on a reasonable, articulable suspicion.  Marben v. State Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).  To be reasonable, the state must show "the officer to have had a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.'" State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). 

The threshold for reasonableness is minimal; the stop simply may not be the "‘product of mere whim, caprice, or idle curiosity.'"  Marben, 294 N.W.2d at 699 (quoting People v. Ingle, 330 N.E.2d 39, 44 (N.Y. 1975)).  "To justify a stop an officer must be able to state something more than an unarticulated ‘hunch'; the officer must be able to point to something objectively supporting that suspicion."  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  An appellate court reviews "the events surrounding the stop and consider[s] the totality of the circumstances in determining whether the police had a reasonable basis justifying the stop."  Id. (citation omitted). 

A traffic violation, although insignificant, objectively justifies a limited investigatory stop.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  But conduct short of a detectable and actual violation of a traffic law may also provide a basis for a stop.  Pike, 551 N.W.2d at 921.  For instance, when a "driver's conduct is such that the officer reasonably infers that the driver is deliberately trying to evade the officer and if, as a result, a reasonable police officer would suspect the driver of criminal activity, then the officer may stop the driver."  State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989).  But seemingly evasive conduct that is not unusual will not alone provide justification for an investigatory stop.  See State v. Schrupp, 625 N.W.2d 844, 848 (Minn. App. 2001) (observing that quickening one's pace upon seeing a police car is not unusual), review denied (Minn. July 24, 2001). 

In concluding that the stop lacked a constitutional basis, the district court relied on State v. Lincoln, No. C7-01-1094 (Minn. App. Feb. 2, 2002).  Lincoln held that an officer did not have a reasonable, articulable basis to stop a car that displayed current July 1999 tabs when the officer's mobile computer terminal showed that the car's  registration was valid only through July 1998.  We recognize that Lincoln is an unpublished case, and therefore not precedential, but because the district court looked to it for guidance, we address the distinctions between the facts of Lincoln and Hirschuber's stop.

First, the time lapse for the discrepancy between the displayed registration and the computer registration was significantly shorter in Lincoln.  The stop in Lincoln occurred only two months after the computerized records showed the tabs had expired.  The discrepancy between the displayed valid tabs and the computer records could have been attributable to a lag in the state's record-keeping system.  The discrepancy on Hirschuber's back-plate tab was two years, thus it was unlikely attributable to delayed updating.  Second, the officer in Lincoln acknowledged that he thought that the computerized information may not have been promptly updated.  Third, and most significantly, the officer in this case acted on two bases of suspicion:  Hirschuber's evasive action in quickly pulling away from the stop sign and the discrepancy in the registration information.

            When the officer learned that the apparently current tab that was displayed on Hirschuber's back plate did not correspond with the computerized registration information, he could reasonably suspect that Hirschuber might be violating a traffic law by using invalid tabs.  See Minn. Stat. § 168.36 subd. 2 (2002) (prohibiting driving without proper registration or with improper registration tabs on vehicle).  The officer indicated that he believed that the mismatched tab might also indicate that the plate or the vehicle was stolen.  See Cortez, 449 U.S. at 418, 101 S. Ct. at 695 (recognizing that officers may found suspicions on inferences and deductions on police training or experience). 

This suspicion was compounded by the officer observing Hirschuber quickly pull away from the squad car at the stop sign, an action that appeared to be an attempt to evade police.  While the apparently evasive conduct might not alone have justified the stop, it makes the officer's suspicions about the registration discrepancy more reasonable.  Therefore, in considering the totality of the circumstances, including both the driver's evasiveness and the registration discrepancy, we conclude that the officer had a reasonable, articulable basis for the stop.

            Reversed and remanded.