State of Minnesota v. Cynthia Jayne Holmes-Buscher ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1935
State of Minnesota,
Respondent,
vs.
Cynthia Jayne Holmes-Buscher,
Appellant.
Filed July 21, 2014
Affirmed
Hudson, Judge
Hennepin County District Court
File No. 27-CR-09-8882
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Corrine Heine, Minnetonka City Attorney, Rolf A. Sponheim, Assistant City Attorney,
Minnetonka, Minnesota (for respondent)
John L. Lucas, Minneapolis, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
HUDSON, Judge
Appellant challenges the district court’s denial of her motion to suppress evidence
relating to her convictions of second-degree driving-while-impaired (DWI) and
possession of an open bottle, arguing that police lacked reasonable suspicion to stop her
vehicle based on the uncorroborated tip of an unidentified informant. Because, under the
totality of the circumstances, police had reasonable suspicion to conduct the stop, we
affirm.
FACTS
The state charged appellant Cynthia Jayne Holmes-Buscher with two counts of
gross-misdemeanor second-degree driving-while-impaired (DWI) and an open-bottle
violation after police stopped her vehicle following a report from a 911 caller that
appellant had been driving erratically during rush hour in Minnetonka. The defense
moved to suppress evidence, arguing that police lacked reasonable articulable suspicion
to conduct the stop because it was based on an uncorroborated report from an
unidentified caller.
At an evidentiary hearing, a Minnetonka police officer testified that he received
information from dispatch that a person following a driver reported that the driver was
behaving erratically, stopping in the middle of the road and weaving from side-to-side.
Dispatch referred to the vehicle as a dark-colored Hummer, which the officer described
as a “large four-wheel drive truck” that was “fairly uncommon.” The caller stated that
the driver was “driving really weird,” driving over the center line and then towards the
ditch, and that she had also exited the vehicle in the middle of the road with a line of cars
behind her. The caller identified the license plate of the vehicle and gave a physical
description of the driver.
According to the tape of the 911 call, when the dispatcher asked for the caller’s
name, she stated, “I would like to remain anonymous if I can.” When told that the police
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would then have to locate the vehicle, she asked, “Will she know that it was me that
called?” The dispatcher told the caller that if she did not want to get involved, there was
no sense in continuing to follow the driver or give her name, and that if she still followed
it, investigating police would stop her own vehicle. The caller replied, “Oh that’s fine,”
identified her own vehicle by make and model and continued to follow the Hummer until
police stopped it.
The arresting officer testified that after receiving the report from dispatch, he
located the dark-colored Hummer and stopped it two to three miles from its first reported
location. He testified that he did not personally observe illegal driving behavior, but that
he believed the Hummer was heading toward the freeway, where it could be more
dangerous at high speeds. The officer asked appellant, the driver, why she had stopped in
the middle of the road, and she replied that turkeys were crossing the road. After
observing that appellant showed signs of intoxication and attempting to administer a
preliminary breath test (PBT), which appellant declined to finish, the officer arrested her
for DWI.
The officer testified that about ten minutes later, while he was interviewing
appellant, he directed another responding officer to interview the caller, who had parked
about 100 yards behind the Hummer. The second officer testified that he spoke to the
caller, who declined to give any personal information and stated that she “didn’t want to
be involved.” He later obtained the driver’s license photo of K.G., the person who later
picked up appellant’s dogs and children at the police station, and he testified that it
appeared to be the same person he interviewed. Through phone and driver and vehicle-
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services records, police identified the person who had made the driving complaint as a
person with the same first and middle names as K.G., but a different last name. An
investigator testified that this change was consistent with a person marrying and changing
names.
The district court denied the motion to suppress evidence, finding that the 911
caller provided sufficient information to the dispatcher to render her identifiable because
she called 911 using an unblocked telephone number, continued to provide the dispatcher
with the location of her vehicle and the Hummer, described her own vehicle with
specificity, and agreed to pull her vehicle over so that police could speak with her.
Therefore, the district court concluded that, based on appellant’s driving conduct as
observed by an identifiable 911 caller, police acted reasonably in conducting the stop.
After considering the matter on stipulated facts, the district court found appellant guilty
of all counts. This appeal follows.
DECISION
“When reviewing pretrial orders on motions to suppress evidence, [appellate
courts] may independently review the facts and determine, as a matter of law, whether the
district court erred in suppressing—or not suppressing—the evidence.” State v. Harris,
590 N.W.2d 90, 98 (Minn. 1999). We review the district court’s findings of fact under a
clearly erroneous standard, but review its legal determinations de novo. State v. Bourke,
718 N.W.2d 922, 927 (Minn. 2006).
Both the United States and Minnesota Constitutions guarantee a person’s right to
be free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const.
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art. I, § 10. With a few exceptions, warrantless searches are unreasonable. Katz v.
United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). Officers conducting a
warrantless investigatory seizure “must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). “Evidence
obtained as a result of a seizure without reasonable suspicion must be suppressed.” State
v. Diede, 795 N.W.2d 836, 842 (Minn. 2011). We review de novo the legal issue of
whether reasonable articulable suspicion exists. Wilkes v. Comm’r of Pub. Safety, 777
N.W.2d 239, 242-43 (Minn. App. 2010).
Appellant argues that the police lacked reasonable suspicion to stop her vehicle
based solely on the uncorroborated report of an anonymous tipster. “[T]he factual basis
for stopping a vehicle need not arise from [an] officer’s personal observation.” Marben
v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). An informant’s tip
may be adequate to support an investigative seizure if the tip has sufficient indicia of
reliability. In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997). When examining
the sufficiency of a tip to provide reasonable articulable suspicion for a stop, courts
examine two factors: identification of the informant and facts supporting the informant’s
basis of knowledge. Rose v. Comm'r of Pub. Safety, 637 N.W.2d 326, 328 (Minn. App.
2001), review denied (Minn. Mar. 19, 2002). Neither factor is independently dispositive,
and the overall determination of reasonable suspicion is based on the totality of the
circumstances. Jobe v. Comm'r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000)
(citing Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)). “[U]ltimate
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reliability depends not only on the identification of the informant but also on the nature of
the information he or she gives.” Yoraway v. Comm’r of Pub. Safety, 669 N.W.2d 622,
626 (Minn. App. 2003).
We agree with the district court that, based on the circumstances surrounding the
stop, the caller was identifiable. “When an informant provides sufficient information so
that he may be located and held accountable for providing false information, the officer is
justified in assuming the caller is being truthful in so identifying himself.” Playle v.
Comm'r of Pub. Safety, 439 N.W.2d 747, 748 (Minn. App. 1989). Here, although the
caller did not give her name and stated that she did not wish to be involved, she continued
to follow the Hummer even after dispatch told her that her own vehicle would be stopped
as well. And she provided sufficient additional information, such as the make and model
of her own vehicle, so that police could later locate her. See id. (concluding that when an
unnamed employee of a particular restaurant provided a tip, and police subsequently
identified the employee, information as to the caller’s identity was adequate, and the case
did not involve an anonymous caller); see also Minnetonka v. Shepherd, 420 N.W.2d
887, 890 (Minn. 1988) (concluding that when a person identified himself as an unnamed
employee of a certain gas station, he had placed himself in a position from which he
might be located and held accountable for providing false information, so that his report
of an intoxicated driver had indicia of reliability).
Further, additional specific facts supported the caller’s basis of knowledge. She
identified appellant’s vehicle as a dark-colored Hummer, an uncommon vehicle, with a
certain license plate number. And her use of the 911 call system, while not dispositive,
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also lends reliability to her tip. See Navarette v. California, 134 S. Ct. 1683, 1690 (2014)
(holding that an informant’s “use of the 911 system is . . . one of the relevant
circumstances that, taken together, [may] justif[y] . . . reliance on the information
reported in [a] 911 call”). The caller’s tip was corroborated when the officer located the
Hummer within a few minutes of the 911 call and observed it turn at a certain
intersection, as dispatch was simultaneously describing that turn to him. Based on the
totality of the circumstances, the officer had reasonable articulable suspicion to stop
appellant’s vehicle, and the district court did not err by declining to suppress the
evidence.
Affirmed.
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