State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0652

State of Minnesota,
Respondent,

vs.

David Michael Bigham,
Appellant.

Filed January 16, 2018
Affirmed
Rodenberg, Judge

Ramsey County District Court
File No. 62SU-CR-15-6427

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Katrina E. Joseph, Falcon Heights City Attorney, Blaine, Minnesota (for respondent)

Charles F. Clippert, Clippert Law Firm, P.L.L.C., St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant David Bigham challenges his co nviction of third-de gree driving while
impaired with an alcohol concentration of 0.08 or more under Minn. Stat. § 169A.20,
subd. 1(5) (2014). Appellant argues that the di strict court erred in denying his motion to

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suppress evidence obtained after what he argues was his unconstitutional seizure by law
enforcement. He argues that law enforc ement seized him based on a tip from an
unidentified individual that ne ither established appellant’s id entity nor demonstrated that
he was driving while impaired . Appellant also argues that he was seized by a reserve
deputy who was not legally authorized to detain him. We affirm.
FACTS
On August 30, 2015, appellant was leav ing the Minnesota State Fairgrounds at
11:00 p.m. Appellant was drivin g an SUV in a long line of vehicles waiting to leave the
fairgrounds near the intersection of Larpenteur Avenue and Underwood Street in St. Paul.
A driver ahead of appellant in the line of vehicles got the attention of one of the two reserve
deputies1 who were directing traffic in the intersec tion. This driver told Reserve Deputy
Kelly Hiner that he suspected another driver behind him (who wa s later identified as
appellant) was impaired. He elaborated that he saw the driver stumbling around the parking
lot and having trouble getting into his SUV, and thought that the driver may be intoxicated.
The driver gave Reserve Deputy Hiner a desc ription of the SUV (which description the
deputy could not specifically recall at trial, but which she remembered as having enabled
her to locate appellant’s particular vehicle ). The reserve deputies then looked for the

1 Under Minn. Stat. § 626.84, subd. 1(e) (2016 ), a reserve officer is an “individual whose
services are utilized by a law en forcement agency to provide supplementary assistance at
special events, traffic, or crowd control, and administrative or clerical assistance, and shall
include reserve deputies . . . . A reserve officer’s duties do not include enforcement of the
general criminal laws of the state, and the o fficer does not have full powers of arrest or
authorization to carry a firearm.” The partie s’ briefing refers to the officer here as a
“reserve deputy.” We treat the terms as interchangeable.

3
described SUV in the line of vehicles and identified appe llant’s SUV as matching the
description. They radioed for Ramsey Coun ty Sheriff’s deputies to respond to their
location.
When appellant’s SUV reached the inters ection, the reserve deputies stopped the
vehicular traffic to allow for pedestrians leaving the fairgrounds to cross Underwood Street.
Traffic was stopped, with appellant as the fi rst vehicle in line at the intersection, for
approximately nine minutes. The reserve deputies stopped the vehicular traffic as they did
to give the sheriff’s deputie s time to respond to the repor t about appellant’s possible
impairment. At trial, Reserve Deputy Hiner testified that she knew that she was neither
authorized to perform a traffi c stop nor to hold the vehicula r traffic longer than usual to
allow pedestrians to cross, and that eventually she would have allowed appellant to proceed
and other traffic to leave the fairgrounds. The reserve deputies did not speak with appellant
or personally notice any driving conduct or other sign that he was intoxicated.
Sheriff’s Deputy Suchy and three other offi cers arrived at the fairgrounds. The
officers spoke with the reserv e deputies. Deputy Suchy ap proached appellant’s SUV.
Appellant’s window was down, and Deputy Suchy walked up and asked appellant if he had
fun at the fair. He observed that appellant s eemed to be impaired by alcohol. He had
appellant perform a number of field sobriety tests, which appellant failed. Deputy Suchy
arrested appellant, and appellant later submitted to a breath test which reported an alcohol
concentration of 0.17.
After appellant was charged with gross-misdemeanor offenses, he moved pretrial to
suppress evidence obtained following his seizure by law en forcement and to dismiss the

4
charges against him, arguing that he was ill egally seized by Reserve Deputy Hiner and
Deputy Suchy. The district court found that the reserve deputies were acting as government
agents when they stopped appellant’s SUV from crossing the street and their actions were
thus subject to Fourth Amendment limitati ons. The district court also found that,
considering the totality of the circumstances, appellant was not seized until Deputy Suchy
approached his SUV and began talking to him. The district court found that the reserve
deputies directing traffic as they did was pe rmissible under the Fourth Amendment. It
found that appellant was seiz ed when Deputy Suchy appr oached his SUV, because a
reasonable person would not have felt free to le ave at that point, taki ng into account the
length of the stop and appellant’s position at the front of the line.
Further, the district court found that the seizure was not illegal because the tip from
the other driver leaving the fairgrounds in formed the reserve deputies about a possible
impaired driver behind him and “came pursuant to a face to face conversation” between
the informant and one of the reserve deputies. In the district court’s judgment, this was a
“legitimate basis” to draw the conclusion that appellant was impaired after the other driver
had observed him in person. And, although the reserve deputies did not record the license
plate of the other driver’s car, the informant was subject to being identified at the time he
provided the information. Th e district court denied appellant’s motion to suppress the
evidence obtained after appellant’s seizure by law enforcement.
Appellant waived his right to a jury trial and was convicted after a bench trial of
third-degree driving while impa ired with an alcohol concen tration of 0.08 within two
hours, pursuant to Minn. Stat. § 169A.20, subd. 1(5).

5
This appeal followed.
D E C I S I O N
Appellant contends that the district court erred when it denied his motion to suppress
evidence. He contends that law enforcement seized him based on a tip from an unidentified
individual that failed to establish appellant’s identity or that he was driving while impaired
by alcohol. In the alternative, appellant argu es that he was detained by a reserve deputy
who had no authority to detain him, and th erefore the evidence obtained following the
seizure must be suppressed on that basis.
Appellant first argues that there was not reasonable suspicion to support his seizure
by law enforcement while he wa s attempting to leave the fa irgrounds. “When reviewing
pretrial orders on motions to suppress eviden ce, we may independently review the facts
and determine, as a matter of law, whether th e district court erred in suppressing—or not
suppressing—the evidence.” State v. Harris , 590 N.W.2d 90, 98 (Minn. 1999). “[W]e
review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.” State v. Gauster , 752 N.W.2d 496, 502
(Minn. 2008).
The United States and Minnesota Stat e Constitutions prohi bit “unreasonable
searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. 1, § 10. Law enforcement
may, however, “conduct a brief, investigator y stop when the officer has a reasonable,
articulable suspicion that cr iminal activity is afoot.” Illinois v. Wardlow , 528 U.S. 119,
123, 120 S. Ct. 673, 675 (2000). We have stated that, in order to comply with the Fourth
Amendment, law enforcement “may not stop a vehicle without a specific and articulable

6
suspicion of a violation.” Rose v. Comm’r of Pub. Safety , 637 N.W.2d 326, 328 (Minn.
App. 2001). “The factual basis necessary to maintain a routine traffic stop is minimal and
need not arise from an officer’s personal observations. A factual basis may also be supplied
by information acquired from another pe rson, including an informant.” Id. (citation
omitted).
Law enforcement may detain an individual ba sed on an informant’s tip, so long as
the tip has “indicia of reliability[,]” and that, if law enfo rcement makes the stop based on
the tip alone, the tip “must prov ide at least some specific and articulable facts to support
the bare allegation of criminal activity. Not much is required, especially for a traffic stop
for a suspected traffic offe nse then in progress.” Olson v. Comm’r of Pub. Safety , 371
N.W.2d 552, 556 (Minn. 1985). Generally, when considering whether a traffic stop based
on an informant tip is permissible under the Fourth Amendment, we consider “(1) [the]
identifying information provided by the in formant; and (2) the facts supporting the
informant’s assertion that a driv er is under the influence.” Rose, 637 N.W.2d at 328.
“Neither factor is separately dispositive, ” and we consider th e “totality of the
circumstances” when considering “whether the officer had a reasonable suspicion of
criminal activity at the time of the stop.” Id. Further, a tip from an informant, given in a
“face-to-face confrontation” with law enforc ement when “his iden tity may easily be
traced,” may be found to be reliable regardless of whether the informant is identified at the
time of the tip. State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986).
Here, the driver who informed Reserve De puty Hiner about appellant’s suspected
intoxication was unidentified. That driver expressed his suspicions about appellant to

7
Reserve Deputy Hiner in a face-to-face conversation. He described the SUV, including a
unique design of some sort, and described the male driver as having been “stumb[ling,]”
having “difficulty getting in” his SUV, and appear ing to the informant to be intoxicated.
At trial, Reserve Deputy Hiner could not recall the description of the SUV provided to her,
but testified that, at the time, the descriptio n was sufficient for her and her partner to
identify the vehicle in question. Reserve Deputy Hiner told the responding officers about
her conversation with the informant and pointed out appellant’s SUV.
The district court found that the info rmant provided a reasonable, articulable
suspicion that appellant was driving while im paired, justifying the seizure of appellant
when Deputy Suchy approached.
In challenging this conclusion, appellant first argues that the tip from the other
driver leaving the fairgrounds “lacked identifying information.” Appellant correctly points
out that Reserve Deputy Hiner was not able to testify at trial regarding the make, color,
model, or plate number of the SUV or give a description of the driver (beyond that he was
“male”). He compares th e facts of this case with the situation in Olson, where an
anonymous caller was able to provide law en forcement with the ma ke, color, and plate
number of the car which a suspected impaired driver was driving, but the supreme court
nonetheless found that the informant’s tip was not reliable. 371 N.W.2d at 553. There, the
supreme court stated that “we know nothing ab out the informant and nothing about what
the informant saw which led him or her to be lieve that the [defendant] was ‘possibly’
drunk.” Id. at 556.

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Here, despite Reserve Deputy Hiner’s inability to recall at trial the description the
other driver gave of appellant’s SUV, she testified that when that description was given to
her it was sufficient to locate appellant’s SUV in a line of vehicles. Unlike the facts in
Olson, the other driver was in the same vicinity as appellant at the time he made the report,
the report was made directly and in person to Reserve Deputy Hiner, and the other driver
was able to explain to Reserve Deputy Hine r the behavior displayed by appellant which
led to his inference that appe llant was intoxicated. The facts of this case are more
comparable to those in Davis, where an informant yelled out of the window of a car that
law enforcement should stop a vehicle behind her because it ran a red light . 393 N.W.2d
at 180. There, the supreme court held that the officer was justified in stopping the vehicle
referenced by the informant, because there was a “face-to-face confrontation” between law
enforcement and the informant, and “[c]learly” the informant had witnessed conduct on the
part of the suspected impaired driver th at justified an investigative stop by law
enforcement. Id. at 181.
Appellant next argues that the tip lacked facts supporting the other driver’s assertion
that appellant was impaired. The other driver told Reserve Deputy Hiner that he watched
the SUV driver “stumble to hi s vehicle” in the fairground pa rking lot and have difficulty
getting into his SUV. Appella nt argues that this informa tion was too vague to support
seizing him, because people can stumble for reasons unrelated to intoxication and the other
driver did not observe any erra tic driving conduct. As discussed, the supreme court in
Olson found a tip to be unreliabl e when the informan t provided no information that “led
him or her to believe” that the driver was drunk. Id. at 556. Here, unlike in Olson, the

9
other driver who reported appella nt’s behavior to Reserve De puty Hiner explained to her
that he had personally observe d appellant’s behavior leadi ng him to the conclusion that
appellant was intoxicated and was able to describe that behavior in detail. See City of
Minnetonka v. Shepard, 420 N.W.2d 887, 890 (Min n. 1988) (distinguishing Olson where
the court inferred that a gas station attendant providing a tip regarding an intoxicated driver
had witnessed the driver’s condu ct inside the station, thus basing his reliable tip “on
personal observation of the driver himself”).
Under the totality of the circumstances , Reserve Deputy Hiner received enough
information from the other driv er to form a reasonable and articulable suspicion that
appellant was driving while impaired. She communicated this information to Deputy
Suchy and the other law enfo rcement officers, providing a reasonable and articulable
suspicion sufficient to justify appellant’s seizure in his vehicle.
Appellant next argues that Reserve Deputy Hiner illegally seized him at the point in
time when she stopped the vehicular traffic le aving the fairgrounds with his SUV at the
front of the line of vehicles, and that she lacked the authority to seize him. Appellant argues
that he was “detained by Hi ner’s show of authority” when Reserve Deputy Hiner held
traffic until the sheriff’s deputies arrived. Th erefore, he argues, ev idence obtained from
his improper seizure must be suppressed on this basis. But the dist rict court found that
Reserve Deputy Hiner did not seize appellant. Instead, it found that Deputy Suchy seized
appellant “at the moment [he] approached [appellant’s] ve hicle on foot and initiated a
conversation.” The district court found that the actions of the reserve deputies in stopping
vehicles to let foot traffic through were “initially . . . permissible.” It further found that the

10
seizure was triggered by the duration of the stop “ and the fact that [appellant] was
ultimately singled out by law enforcement .” (Emphasis added.) The district court found,
and we agree, that Reserve Deputy Hiner had no authority to perfo rm a traffic stop.
Reserve Deputy Hiner testified that she understood that her authority was so limited and
that, despite her wish that law enforcement would arrive while she had appellant stopped
in line, she did not intend to hold traffic any longer than usual to allow pedestrians to pass.
The district court found that Reserve Deputy Hiner’s actions did not amount to a seizure
of appellant. The record evidence supports these findings.
Appellant was not seized until Deputy Suchy, a law enforcement officer,
approached his SUV. That seizure was based on Deputy Su chy’s reasonable and
articulable suspicion that appellant was impair ed. We see no error in the district court’s
application of the law to its findings.
Affirmed.