Opinion
No. A04-761.
Filed January 11, 2005.
Appeal from the District Court, Scott County, File No. 2003-23102.
Richard Lee Swanson, (for appellant).
Mike Hatch, Attorney General, Joan Marie Eichhorst, Assistant Attorney General, (for respondent).
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this implied consent proceeding, appellant challenges the district court's order sustaining the revocation of his driver's license arguing that the seizure leading to his arrest lacked reasonable suspicion of criminal activity. Because we conclude that no improper seizure occurred, we affirm.
FACTS
Officer Clay Johnson received information from the police dispatcher at approximately 1:06 a.m., regarding a hit-and-run property damage incident by a possible intoxicated driver of a Chevrolet Malibu. Two to three minutes later, the officer saw what appeared to be a Malibu on the road. Without using his lights or siren, Officer Johnson followed the vehicle into a hospital parking lot. As the officer was pulling up to park, appellant Robert Beckrich began to exit the Malibu. Officer Johnson then proceeded to park his squad car behind the vehicle next to Beckrich's so as not to block Beckrich in.
As Beckrich exited his vehicle, Officer Johnson shone his spotlight on him and the vehicle. Officer Johnson observed that Beckrich "appeared very dazed and confused" as he got out of the vehicle, and that his "movements were slow, deliberate and lethargic," taking an over-average amount of time to shut his car door and walking away very slowly.
As Officer Johnson got out of his squad car, Beckrich walked away from him toward the hospital. When they were about 15 to 20 feet apart, the officer asked him "sir, could you hold on a second?" As Officer Johnson approached Beckrich, he observed that Beckrich was "staggering," continued to have "slow, deliberate movements," and smelled of alcohol.
Beckrich stopped and answered Officer Johnson's questions evasively. After about 30 seconds, the officer asked Beckrich to sit in Beckrich's vehicle because "he was staggering and so uneasy on his feet." While Beckrich was in his vehicle, Officer Johnson received the license plate number of the suspect vehicle and confirmed that Beckrich's license plate matched it. The officer then arrested Beckrich for driving while impaired.
Beckrich's license was subsequently revoked, the revocation was sustained by the district court, and this appeal followed.
DECISION
Beckrich contends that Officer Johnson's actions of shining his police spotlight, asking Beckrich to "hold on a second," and further directing him to sit in his vehicle constitute a seizure.
The determination of whether a seizure is constitutional is a question of law subject to de novo review. State v. Day, 461 N.W.2d 404, 406 (Minn.App. 1990), review denied (Minn. Dec. 20, 1990). When the facts of a case are not significantly in dispute, a reviewing court must determine whether "a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure." State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Under Article I, Section 10 of the Minnesota Constitution relating to unreasonable searches and seizures, a person has been seized when, in consideration of all the circumstances surrounding the incident, a reasonable person would believe that he or she was not free to terminate the encounter or disregard the police officer's questions. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). Circumstances that might indicate a seizure would be "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). In addition, a seizure occurs when an officer, "by means of physical force or showof authority, has in some way restrained the liberty of a citizen." Cripps, 533 N.W.2d at 391 (quoting Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S. Ct. 1868, 1879 n. 16 (1968)). Conduct that is likely to be considered a show of authority is behavior that a person would not expect between two private citizens. Day, 461 N.W.2d at 407. But even though citizens may feel a moral or instinctive pressure to cooperate, and they may defer to a police officer in a situation because they believe that they should, it does not automatically convert the encounter into a seizure. See E.D.J., 502 N.W.2d at 782.
The use of a police spotlight alone is not a show of police authority and does not constitute a seizure. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (concluding no seizure when officer walked to vehicle and shined flashlight into passenger compartment, after observing driver shut the lights off, drive into closed service station, and stop); Crawford v. Comm'r of Pub. Safety, 441 N.W.2d 837, 838-39 (Minn.App. 1989) (concluding no seizure when police officer followed suspicious driver into residential cul-de-sac and activated a spotlight to locate parked vehicle); State v. Reese, 388 N.W.2d 421, 422-23 (Minn.App. 1986) (concluding no seizure when police officers observed two vehicles stopped in adjacent lanes blocking intersection with engines running and headlights on, positioned squad car to allow headlights to illuminate vehicle, approached vehicle, asked driver for identification, and observed indicia of intoxication), review denied (Minn. Aug. 13, 1986). Furthermore, an officer approaching a person in a public place to ask questions, without more, is not a show of police authority and does not constitute a seizure. E.D.J., 502 N.W.2d at 782.
Here, there is no evidence that Officer Johnson intended to restrain Beckrich from leaving when he illuminated his spotlight, nor is there evidence that Beckrich felt that he was not free to leave when the spotlight was on him and his vehicle. Rather, Officer Johnson's use of his spotlight was to determine how many people were in the vehicle and for officer safety. In addition, when Officer Johnson illuminated his spotlight, Beckrich "shut the car door and walked away." Beckrich was also outside his already-stopped vehicle when Officer Johnson approached him and asked him, in a "professional, nice" tone of voice, if he "could hold on a second." A reasonable person in Beckrich's position would not feel as though he or she was not free to leave. Even if Beckrich complied with Officer Johnson because he felt his own moral or instinctive pressure to do so, it cannot transform the encounter into a seizure.
When Officer Johnson instructed Beckrich to sit in the back seat of his vehicle, however, we conclude, that seizure did occur. After such an instruction, a reasonable person would not feel as though he or she was free to leave. But, the seizure, at this point, was proper and justified because it was supported by a specific, articulable basis of criminal activity. See Harris, 590 N.W.2d at 99; see also LaBeau v. Comm'r of Pub. Safety, 412 N.W.2d 777, 779-80 (Minn.App. 1987) (concluding police officer's initial observation of parked vehicle and driver displaying signs of intoxication, along with tip that driver may be intoxicated, constituted specific and articulable facts to support officer's request that driver produce identification and exit vehicle).
Officer Johnson initially observed that Beckrich appeared dazed and confused and that his movements were very slow. It was after observing this behavior that Officer Johnson exited his squad car and approached Beckrich. After speaking with Beckrich, Officer Johnson also observed that he was staggering, uneasy on his feet, and smelled of alcohol. Officer Johnson's observations of indicia of intoxication coupled with dispatch information that the Malibu driver might be intoxicated constitute specific and articulable facts to justify a seizure by requesting that Beckrich sit in his vehicle.
Therefore, the seizure was supported by an adequate basis and the district court properly sustained the license revocation.