Opinion
No. C4-97-1225.
Filed March 17, 1998.
Appeal from the District Court, Dakota County, File No. K4970441.
Hubert H. Humphrey, III, Attorney General, and
James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, (for appellant)
Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Christopher Berendt, convicted of second-degree burglary, contends that the trial court erred in failing to suppress evidence of stolen items seized from his vehicle when he was stopped near the scene of the crime, shortly after the burglary occurred. We affirm.
FACTS
Appellant's van was stopped while police were investigating an Apple Valley burglary. The trial court found he was stopped (a) because of a loud muffler and (b) to "freeze the situation." The court also found that the subsequent search of appellant's van was justified under the theory of consent.
DECISION
1. Lawful Stop
Police may make investigative stops of vehicles if they have 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 officer need not observe an actual violation of the law, but rather the officer must show that the stop was not the product of "mere whim, caprice or idle curiosity." Id. If a factual basis for the stop can be articulated, suspicion is all that is required. Berge v. Commissioner of Pub. Safety , 374 N.W.2d 730, 733 (Minn. 1985).
Appellant asserts that "the state should be required to show more than a vague `noisy muffler' allegation; it should have to prove that the vehicle was at least close to being in violation of the legal noise standards." Minn. Stat. § 169.69 (1996) provides that vehicles must be equipped with a muffler that is in good working order "to prevent excessive or unusual noise." Appellant cites State v. Bender , 381 N.W.2d 896, 897-98 (Minn.App. 1986), where we affirmed a finding that a stop was not justified on an officer's mere "loud exhaust" observation, unaccompanied by a statement of the officer's belief that a violation had occurred. Bender does not govern this case. The Apple Valley police officer, stating a belief that the muffler was illegal, testified that appellant's muffler was "popping and crackling * * * it was making a very loud rattling noise." The officer's observations were corroborated by the trial court's independent inspection of the muffler. In these circumstances, an investigatory stop was constitutional. See State v. Pierce , 347 N.W.2d 829, 833 (Minn.App. 1984) (holding that an initial stop for a noisy muffler was proper).
The State contends the stop was also permissible since (a) it occurred at 3:22 a.m. when there was little or no traffic; (b) before stopping appellant the officer ran a registration check on the vehicle's license and found that it did not belong to an Apple Valley resident; and (c) although 15 minutes had lapsed since the burglary, appellant was in close proximity to the scene of the crime. See Appelgate v. Commissioner of Pub. Safety , 402 N.W.2d 106, 108 (Minn. 1987) (setting forth six factors for determining propriety of a stop to "freeze the situation"). Because we are satisfied that the stop was based on a reasonable and articulable suspicion of a traffic violation, we decline to fully analyze this case under the Appelgate factors.
2. Consent to Search
Appellant asserts that he merely acquiesced to the search, citing State v. George , 557 N.W.2d 575 (Minn. 1997). In response, the State argues that appellant more than acquiesced. The officer testified that after he asked appellant if "[he] could look in his van," appellant replied "Go right ahead" and made an open arm gesture.
The present situation is distinguishable from George and the record supports finding that appellant consented to the search. George dealt with the unique situation of a targeted stop of a motorcyclist under the guise of a traffic violation. Id. at 577. Moreover, the persistent questioning in George , with the inference that the search would occur without consent, can be distinguished from this case. Id. at 579. In the immediate case, an appropriate question produced more than acquiescence: the officer asked for permission to look in the vehicle and appellant stated "Go right ahead."