Opinion
No. C0-00-794.
Filed February 20, 2001.
Appeal from the District Court, Redwood County, File No. DC246652.
Michael H. Boyle, Morgan City Attorney, (for respondent)
Michael P. Kircher, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Crippen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant appeals from a conviction for misdemeanor driving under the influence in violation of Minn. Stat. § 169.121, subd. 1 (e) (1998). Appellant argues that a call to a dispatcher from a casino employee reporting that two intoxicated individuals had left the casino, which was then relayed over a police radio, did not provide a particularized and objective basis for the police officer to pull over appellant's vehicle. Appellant further contends the district court erred by refusing to reopen the omnibus hearing and allow appellant to offer the dispatcher's testimony as evidence. We affirm.
FACTS
Appellant Lori Lynn Noren Blickem was convicted of driving under the influence of alcohol based on the following stipulated facts.
Sometime just before midnight on September 17, 1999, Chief Robert Fischer of the Morgan Police Department overheard a police radio dispatch reporting a call from a Jackpot Junction Casino employee requesting assistance because of a disturbance involving two intoxicated individuals who had been cut off from alcohol use. The radio report was provided by Angie Sandgren, a dispatcher for the Redwood County Sheriff's Department. Shortly thereafter, Chief Fischer overheard another radio dispatch by Sandgren reporting a second call from an employee at Jackpot Junction, who informed Sandgren that two intoxicated individuals had left Jackpot Junction in a dark colored Blazer with the personalized license plate BLICK. Sandgren ran the plates and discovered the registered owner lived in Madelia. Sandgren radioed this information to Chief Fischer because she believed the vehicle was traveling his direction due to the home address of the registered owner.
In response to this information, Chief Fischer positioned himself along Highway 67 in Morgan. A short time later, Chief Fischer saw a vehicle matching Sandgren's description with two passengers inside. Chief Fischer followed the vehicle for a few blocks and did not observe any traffic or equipment violations. Based on Sandgren's radio dispatch information, Chief Fischer pulled Blickem's vehicle over shortly after midnight on September 18, 1999. After Blickem failed a heel-to-toe sobriety test and failed a preliminary breath test, she was arrested for driving under the influence of alcohol and was transported to the Redwood County Law Enforcement Center. An intoxilyzer test was conducted, which reported Blickem's blood alcohol concentration was 0.18 at 1:17 a.m.
Blickem was charged with misdemeanor driving while under the influence of alcohol in violation of Minn. Stat. § 169.121, subd. 1(a), (d), and (e), (1998). Blickem moved to dismiss the charges, challenging Chief Fischer's stop of her vehicle. Following an omnibus hearing on November 12, 1999, Blickem's motion was denied. After losing at the omnibus hearing, Blickem then filed a motion in limine requesting that the district court reopen the omnibus hearing so that Blickem could call Sandgren as an additional witness, based on Sandgren's testimony at Blickem's implied consent hearing. The district court denied the motion to reopen. The case was then submitted to the district court on stipulated facts. In an order filed on May 2, 2000, the district court found Blickem guilty of driving under the influence in violation of Minn. Stat. § 169.121, subd. 1(e). Blickem now appeals this decision.
DECISION
Validity of the Stop
The parties do not dispute the facts in this case. The validity of a stop on given facts is a question of law. Jobe v. Commissioner of Pub. Safety, 609 N.W.2d 919, 921 (Minn.App. 2000). On review, an appellate court "may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed." State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
A vehicle stop "is lawful if the officer articulates a particularized and objective basis for suspecting the particular persons stopped of criminal activity." In re G.M., 560 N.W.2d 687, 691 (Minn. 1997) (citation and quotation omitted). The stop must not be "the product of mere whim, caprice, or idle curiosity." State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (quotation omitted). The factual basis for a stop, however, "need not arise from the officer's personal observation, but may be supplied by information acquired from another person." Marben v. State, Dep't. of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). But, "an informant's tip must possess sufficient indicia of reliability" in order to justify a stop. Jobe, 609 N.W.2d at 921 (quotation omitted). The basis of the stop is evaluated in light of the totality of the circumstances, which include identifying information provided by the informant and facts that support the "informant's assertion that a driver is under the influence." Id. (citation omitted). Further, "[a]n officer is justified in relying on [a] dispatcher's message." State v. Pealer, 488 N.W.2d 3, 4 (Minn.App. 1992) (citation omitted).
Blickem argues Chief Fischer's stop of her vehicle violated her right to be free from unreasonable search and seizure because the call from Jackpot Junction to the dispatcher did not have sufficient indicia of reliability to justify Chief Fischer's stop of Blickem's vehicle. Specifically, Blickem contends the caller was anonymous; and the caller did not provide any information regarding how he or she came about the information reported, who was driving, or whether the driver was intoxicated. Because Blickem believes the caller was unreliable, she argues Chief Fischer did not have a particularized and objective basis to believe Blickem had committed a crime.
If a stop is to be justified, it must be on the factual basis of the tip itself . Olson v. Commissioner of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985). We agree with Blickem that the tip must be based on more than a hunch. Here, Officer Fischer overheard two calls over his police radio. The dispatcher reported that the first call was from a Jackpot Junction employee requesting assistance because of a disturbance involving two intoxicated individuals cut off from alcohol use. At oral argument, Blickem offered a number of reasons why the two individuals could have been cut off, which included the possibility that they were making too much noise over a slot machine complaint. But, the phrase "cut off from the bar" has a well-known common-sense meaning. It is not unreasonable (and more reasonable than Blickem's speculation) to assume that the two individuals were cut off at the bar due to indicia of intoxication. Shortly thereafter, the dispatcher reported another call, again from a Jackpot Junction employee, reporting that two intoxicated individuals had left the casino and drove away in a dark colored Blazer with the personalized license plate BLICK. Chief Fischer overheard the dispatcher report each call. The dispatcher ran the license plate and reported to Chief Fischer that the vehicle was likely traveling in his direction because the registered owner of the vehicle lived in Madelia. At the approximate time the vehicle should have arrived at Chief Fisher's location on Highway 61, Chief Fisher observed a vehicle matching Sandgren's description.
In Olson, the supreme court held that where nothing was known about the informant or what led the informant to believe the driver of the vehicle was possibly drunk, there was a "complete lack of even the most minimal indicia of reliability for the anonymous tip." Olson, 371 N.W.2d at 556. This case has far more facts. Unlike Olson, here there is sufficient information about the informant and what led the informant to believe the person leaving the casino in the Blazer was intoxicated. There were two separate calls placed to the Redwood County Sheriff's office, each containing a personal observation with a fair amount of detail. Although the caller did not provide a name, that information could be ascertained because both calls were made by a Jackpot Junction employee, thereby making the caller accountable for the information provided. See City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890-91 (Minn. 1988) (upholding stop where caller identified himself as gas station attendant and could therefore be held accountable for his report). Further, unlike Olson, this is not a case where an anonymous informant called to report a "possibly" drunk driver. In this case, the calls were made by a Jackpot Junction employee who personally observed intoxicated individuals leave the casino. See Shepherd, 420 N.W.2d at 891 (stating tip reliable when circumstances allowed inference of informant's personal observation).
Further, this is not a case where a "snitch" was offering information to the police. Here, we are dealing with a private citizen providing information to the police. Generally, information received from a private citizen is presumed reliable. Marben, 294 N.W.2d at 699.
Based on these facts, the information provided by the Jackpot Junction employee was not based on a mere hunch. Given the totality of the circumstances, we conclude that the information was sufficiently reliable to provide a particularized basis for Chief Fisher to stop Blickem's vehicle.
Denial of Blickem's Motion to Reopen Evidentiary Hearing
Blickem argues the district court erred by refusing to reopen the omnibus hearing. Blickem asserts that Sandgren's testimony, which she intended to introduce after the omnibus hearing was reopened, was material and relevant to Blickem's contention that the call from Jackpot Junction did not have sufficient indicia of reliability to warrant the stop of Blickem's vehicle.
The district court may reopen an omnibus hearing where a party was not given advance notice of the issues to be raised at the hearing. See State v. Needham, 488 N.W.2d 294, 296-97 (Minn. 1992) (concluding it was proper to reopen hearing to allow state to present additional evidence where state did not have advance notice of issues to be raised at omnibus hearing).
In this case, Blickem filed a motion to dismiss, broadly claiming that there was insufficient evidence for Chief Fischer to form a particularized and objective basis for him to stop Blickem's vehicle. At the omnibus hearing, Blickem was free to call Sandgren as a witness. She failed to do so. Further, Blickem knew or should have known about Sandgren's involvement as the dispatcher on the night Blickem's vehicle was stopped because Chief Fischer's narrative report states that he received a radio dispatch from a Redwood County dispatcher. Finally, Blickem does not allege that Sandgren's testimony was newly discovered evidence or that it constituted unfair surprise. We conclude that the district court's refusal to reopen the omnibus hearing was proper.
Blickem's Conviction for Driving Under the Influence
Blickem argues her conviction for driving under the influence must be reversed because the stop of her vehicle violated her right to be free from unreasonable search and seizure due to an insufficient indicia of reliability on which Chief Fischer could have relied when he stopped Blickem's vehicle.
Because information relayed by the Jackpot Junction employee was sufficiently reliable to provide the basis for Chief Fisher to stop Blickem's vehicle, her constitutional rights have not been violated. Accordingly, her challenge to the conviction is without merit.