"I respectfully dissent. On appeal, we must determine whether Officer Barrett's investigatory stop, based on the totality of the circumstances, was lawful, or whether it was “the product of mere whim, caprice, or idle curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn.App.2005) (quotation omitted), review denied (Minn. June 28, 2005). The district court here considered the totality of the circumstances, and determined that appellant's driving conduct, though not illegal, was “maybe barely enough” to sustain the stop. But allowing officers to initiate investigatory stops on what can best be articulated as “maybe barely enough” invites even more questionably motivated police conduct.
In Warrick v. Comm'r of Pub. Safety, this court concluded that a vehicle's “subtle” weaving within its lane, without crossing over either the center line or the fog line, did not constitute “sufficient articulable facts” that “warrant[ed] the intrusion of a brief investigatory stop.” 374 N.W.2d 585, 586 (Minn.App.1985). I conclude that the factual circumstances in this case present no greater basis for allowing an officer to conduct an investigatory stop.
The record reflects that Officer Barrett spotted the tail lights of appellant's vehicle about three miles ahead of him on Highway 1. The officer did not observe any traffic violations or suspicious activity prior to simply spotting the tail lights. Officer Barrett's only reason for giving chase was that “bars close at 1:00 a.m.” But he admitted that he had not seen appellant come from the only bar in Cook open until 1:00 a.m.
Officer Barrett took chase in the whimsical hope that appellant might provide cause for a stop. He accelerated his squad car to 70 miles per hour (mph), 15 mph faster than appellant who, the officer noted, was properly traveling within the designated 55 mph speed limit. Using simple mathematics, traveling at 15 mph over the speed limit, it would have taken Officer Barrett 12 minutes, and 14 miles, to close the three-mile gap and catch up to appellant. He observed no traffic violations during his chase. Once he caught up to appellant, Officer Barrett tailed appellant at a distance of 120 feet for two more miles.
At no time did Officer Barrett notice any driving violations. Appellant drove the speed limit and did not drive carelessly. However, the officer claimed that while following appellant for two miles, he noticed appellant's left tire touch—but not cross—the center line twice; and similarly, claimed that appellant's right tire twice touched—but did not cross—the fog line on the right side of the highway. In each instance, this touch lasted for only a few feet. At 55 mph, this insignificant encroachment onto the lane markers would have lasted for only a fraction of a second. Other than that, Officer Barrett testified that appellant's driving behavior was not objectionable. Officer Barrett, by now many miles outside of Cook, stopped appellant and determined that he was driving while intoxicated. But like Warrick, the subtle weaving does not constitute sufficient articulable facts that warranted an investigatory stop. See 374 N.W.3d at 586. Therefore, because the record reflects that the investigatory stop was the product of mere whim, caprice, or idle curiosity, I would reverse."