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City of Minot v. Johnson12/22/1999
tion." 885 P.2d 982, 992 (Cal. 1994). Other state supreme courts have reached similar conclusions. In Maine v. Dean, the Maine Supreme Court held an officer had the requisite reasonable and articulable suspicion to stop a driver, whose driving was "unremarkable," leaving an unoccupied building site at 11:00 p.m. 645 A.2d 634, 635-36 (Me. 1994). The Maine court noted the two facts yielding a reasonable suspicion were: "(1) Dean's presence in an area of recent crime reports; and (2) the apparent absence of any reason to be in an uninhabited area at night." Id. at 636. In reaching this conclusion, the court relied on two other state supreme court cases with similar fact patterns. In People v. Ellis, the Illinois Supreme Court held an officer had reasonable suspicion to stop two men walking across a shopping center parking lot, in an area of recent burglaries, at 1:25 a.m. 446 N.E.2d 1282, 1284-85 (Ill. 1983). A decade earlier, in a case very similar to the one before us, the Missouri Supreme Court held in Missouri v. Stark, that an officer was justified in stopping a vehicle which, at 1:00 a.m., entered and quickly left an apartment complex known to have been the scene of numerous crimes. 502 S.W.2d 261, 263 (Mo. 1973).
[ ] Our Court has also recognized the time of night during which events occur may be a relevant factor in determining the reasonableness of an officer's actions when making an investigatory stop. In Ovind, a police officer responded to a report of a fight in a fast food restaurant parking lot a little before 1:45 a.m. 1998 ND 69, 2, 575 N.W.2d 901. Under the circumstances presented in that case, we held it was reasonable for an officer to "freeze" a situation where he suspected a crime may have been committed and conduct a limited investigatory stop. Id. at 17. We stated, however, that the officer's suspicions might have been less reasonable had the events occurred at a different time of day. Id.
[ ] The events giving rise to this appeal occurred at approximately 4:13 a.m. in a business and residential area of Minot, North Dakota. Activities that are unremarkable during daylight hours are more likely to arouse suspicion when conducted under cover of darkness. The time of night at which Patrolman Saltsman saw the defendant drive into a dimly lit area behind a closed business and exit the parking lot is another articulable fact, and part of the totality of the circumstances, upon which reasonable suspicion may be based.
[ ] Our duty is to view the events leading to the stop through Patrolman Saltsman's eyes, granting him the reasonable inferences drawn from training and experience. Given that standard and the totality of the circumstances presented by this case, I conclude reasonable and articulable suspicion existed to justify the investigatory stop. I would reverse the trial court's order suppressing evidence from the stop and remand for further proceedings.
[ ] Mary Muehlen Maring
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