Schwartz v. Commissioner of Public Safety
422 N.W.2d 761
Minn. Ct. App.
1988
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*1 OPINION SCHWARTZ, Timothy Jeffrey SCHUMACHER, Judge. Petitioner, Respondent, Respondent’s driver’s license was re- voked for while under the influ- COMMISSIONER OF PUBLIC revocation, challenged ence. He based SAFETY, Appellant. part upon sufficiency of the basis for the initial of his The vehicle. referee revocation, sustaining recommended Court but the district court rescinded the revoca- 3,May tion. The Commissioner of Public appeals. We affirm.

FACTS Ricky Officer Donald Karnitz re- spondent’s dispatch- vehicle a based message er’s and on his observation of respondent making a U-turn after missing dispatcher a turn. The advised pay telephone from call came a station, particular gas a but the officer did not know whether the informant told the a “911” call. or whether was vehicle, got respondent After out of his intoxication, signs Karnitz observed implied Respon- invoked the consent law. test, Intoxilyzer which showed dent took an alcohol concentration of .11. After his revoked, petitioned license was Schwartz review, legality judicial challenging the for stop. finding that referee recommended The received a radio Officer Karnitz possible driver “all over call of a in a Highway 169 road” northbound on truck, license King pick-up Ford Cab black and that he observed number LOU pass his matching description this vehicle come make a back He concluded the intersection. grounds to make had articulable officer complaint of upon the citizen based together with Hiller, Edina, over the road” Neff, for “all L. Bruce Fred apparent respondent’s his observation petitioner, respondent. turn, missing a driving in Gen., III, Atty. Humphrey, H. Hubert experience officer’s in the was consistent Gen., Watne, Sp. Atty. St. Joel A. Asst. credibility intoxicated driver. with an Paul, appellant. provided tip was identify his location. willingness to citizen’s Heard, decided considered and sustaining recommended WOZNIAK, C.J., The referee and FOLEY < SCHUMACHER, revocation. JJ. *2 762 activity.” court of criminal United that the trial moved

Respondent Cortez, 411, 417-18, 101 rescind his v. 449 U.S. and States recommendations reject the 690, 694-95, (1981), 66 L.Ed.2d 621 concluded S.Ct. The court license revocation. 563, Combs, 398 N.W.2d stop solely quoted on the infor- in State v. the Karnitz based (Minn.1987). stop the 565 must not be dispatcher, which from the mation received whim, caprice, or product of “mere idle enough to form the basis not was 413, Ingle, 36 N.Y.2d curiosity.” People did v. It noted Karnitz suspicion. 67, 74, 39, 44 369 330 N.E.2d driving, that the N.Y.S.2d any and bad not observe (1975), Depart- quoted in Marben v. of legal not indicative U-turn was N.W.2d The court ment the influence. while under of by dis- 699 told the that Karnitz was found being errati- was driven patcher the vehicle In Olson v. Commissioner of indi- nothing in the record cally, but (Minn.1985), Safety, 371 N.W.2d wording anonymous of the the exact cated stop improper supreme court held a the report caller, transcript of the was and no person reported “pos- an unidentified when not wheth- The record did show produced. driver,” sibly and the car’s a drunken told the vehicle was dispatcher was er the travel, description and license of direction this was an the whether “all over noth- plate number. The court noted that dispatcher, or what by the embellishment the informant or ing was known about him which led to believe informant saw the was led him to believe the driver what a drunk driver on the may have been there there “possibly” drunk. Id. at 556. While the officer did The court concluded road. by the testimony the officer that was some facts specific and articulable not have being indicated the car was driv- radio call tip and the did not warranted manner, court conclud- erratic en minimal indicia of the most provide even never made clear whether ed it was It rescinded the informant. reliability of by anony- dispatcher had told this been respondent’s driver’s li- of caller, or this was an embell- mous whether cense. dispatcher or the by the ishment added ap- of Public The Commissioner arresting officer. Id. at 556. order the trial court peals from controlling, is hold that Olson We the revocation. had an insufficient basis that the officer had no respondent. Here the officer ISSUE informant, other information about specific facts officer articulate Did the City Minnetonka his location. than Cf. which, rational infer- together taken facts, a reason- those created ences from 1988) (informant himself as sta identified stop? warranting the suspicion able station). gas particular tion attendant Shep distinguishable from This case is ANALYSIS way in no herd, here there was because argues first The Commissioner held account informant could be which the rejected the ref- when it trial court erred informa knowingly providing false able for that the determination eree’s factual Further, referee’s and both the tion. Id. suspicion raised both was based to a findings fact refer the trial court’s complaint the citizen’s the radio court As the trial “possible driver.” the U-turn. observation of and the officer’s additional noted, is not clear whether its deter- decision reflected The trial court’s tip relayed by facts were legal matter of law mination as a dis ster or were an embellishment stop re- provide a basis to Olson, at 556. patcher. spondent. is court by the trial finding of fact made v. Com Appelgate clearly erroneous. not stop, the officer In to make a valid order objective missioner “particularized have a must addition, trial (Minn.1987). In persons particular suspecting basis for correctly court found that the officer’s ob- U-turn was not suffi-

servation Minnesota, Appellant, STATE of particularized objec- cient to create a suspicion. tive QUINN, al., Mara Therese et DECISION Respondents. *3 trial court The order of the is affirmed. Court of FOLEY, J., dissents. May

FOLEY, Judge (dissenting). respectfully I dissent. The officer testi Review 29, 1988. Granted June told him the infor fied reported mant had a vehicle which was “all specific

over the as well as a de

scription occupants, its These facts as found

its direction. clearly Appel

referee are not erroneous.

-gate Safety, v. Commissioner Unlike

Olson v. Commissioner of (Minn.1985),the dis

371 N.W.2d

patcher specific told the officer and articu- facts which formed the basis

lable suspicion that the driver of the influence.

vehicle was under the identify him

While informant

self, the location of his call was known. it was known because he called

Whether it, the officer had a

911 or because he

basis, Department as in Marben (Minn. 1980), concluding informant had in City Minnetonka

fact seen driver. Shepherd, 420 N.W.2d

1988). reliability presumption There is a Marben, private

of a citizen informer.

N.W.2d at 699. U-turn, respondent’s legal while

Finally, in itself for a showed

insufficient consistent, in the offi- per- of a experience,

cer’s pro- is under the influence.

son who tip. for the minimal corroboration

vided n. 2. court and sus-

I reverse the trial would respondent’s driver’s revocation of

tain the license, as the referee recommended.