Opinion
No. C1-96-233.
Filed August 13, 1996.
Appeal from the District Court, Hennepin County, File No. IC473150.
Michael McGlennen, (for Appellant).
Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, (for Respondent).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
In challenging the revocation of his driving privileges, appellant contends the arresting officer lacked reasonable suspicion to seize him and lacked probable cause for arrest. We affirm.
FACTS
On the evening of June 23, 1995, two concerned citizens called the St. Louis Park Police Department to report that a man was slumped over in a parked vehicle in a parking lot of an apartment complex. When the officers arrived, the two concerned citizens pointed out the vehicle in question. Although the engine was not running, the brake lights were illuminated. The driver's window was rolled down, and a man, who appeared to be sleeping, was in the driver's seat. Officer Reuben called for a backup and parked his car near the vehicle in question. The backup officer parked adjacent to him.
Officer Reuben then focused his spotlight inside the vehicle and approached. As he got closer to the vehicle, he smelled the odor of alcohol coming from the vehicle and saw the key in the ignition. Officer Reuben shook the man and asked him if he was all right. Officer Reuben testified that he was primarily checking on the welfare of this man. The man awakened and was later identified as appellant Dennis Samuel Griffin. Appellant was confused and incoherent; his speech was slurred. When the officers asked him to exit the vehicle, he was unsteady getting out of the vehicle and required assistance walking back to the squad car. The officers did not conduct field sobriety tests, but did give appellant a preliminary breath test (PBT) which produced a "fail" reading; the PBT is calibrated to fail at alcohol concentrations of .11 or over. On the basis of what he had observed, Officer Reuben placed appellant under arrest for driving while intoxicated (DWI) in violation of Minn. Stat. § 169.121, subd. 1 (1994). His driving privileges were revoked pursuant to the implied consent statute, Minn. Stat. § 169.123, subd. 4 (1994). After a hearing to review appellant's case, the district court sustained the revocation.
DECISION
Appellant challenges the propriety of Officer Reuben's initial contact with appellant, claiming the officer had no reasonable suspicion to stop him.
Whether an officer's actions amounted to a "stop" and "seizure" for purposes of Fourth Amendment protection is a question of law for the court to determine. State v. Day, 461 N.W.2d 404, 406 (Minn.App. 1990), review denied (Minn. Dec. 20, 1990). Similarly, whether the officer had an adequate basis for the stop and seizure is a question of law. Id.
We note first that Officer Reuben did not "stop" appellant's vehicle. The officer responded to a call from concerned citizens that a man was slumped over in a parked vehicle; the car was already parked and stopped before the officer approached. Nor did the officer seize appellant when he first approached the vehicle.
[I]t does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car.
State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980). Officer Reuben lawfully approached appellant, without first suspecting criminal activity, because he came to the scene to check on appellant's welfare. See State v. Compton, 293 N.W.2d 372, 373 (Minn. 1980) (holding seizure did not occur when police "stopped to help" motorist whose truck was stopped along highway); Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244, 245 (Minn.App. 1986) (holding seizure did not occur when officer pulled up behind legally parked car with light on "to determine whether there were people in need of assistance").
Appellant next contends the officer seized him when he parked near his vehicle and shone a spotlight on him. When evaluating the nature of interaction between an officer and a citizen, the court compares it to inoffensive conduct that would occur between ordinary citizens. State v. Sanger, 420 N.W.2d 241, 242-43 (Minn.App. 1988). Questions within routine conversation may be acceptable if the officer does not harass or act overbearing. Id. at 243. In Sanger, where police boxed in the defendant's car, activated flashing red lights on the squad car, and sounded the horn, this court held that strong show of authority was "far beyond the realm of private citizens' interactions and resulted in a seizure." Id. at 243. The police in Sanger, however, used those tactics to intimidate a defendant who had attempted to flee.
In contrast here, Officer Reuben saw that appellant appeared asleep; the record contains no evidence that he turned on the spotlight as a show of force. Officer Reuben's use of the spotlight was appropriate, because he had lawfully approached appellant to check his welfare. See State v. Alesso, 328 N.W.2d 685, 687 (Minn. 1982) (court generally upholds officer's use of spotlights or flashlights to see inside vehicle, so long as officer lawfully acquired his "position vis-a-vis the vehicle"). With regard to Officer Reuben's call for a backup officer, we consider that action reasonable in light of the violence against Minnesota officers that has occurred in the line of duty when checking on occupied vehicles. Officer Reuben's conduct was not overbearing or harassing, but similar to that between two ordinary citizens, if one was checking on the welfare of the other. Sanger, 420 N.W.2d at 243. The officer did not seize appellant at this juncture.
As Officer Reuben came close to the vehicle, he smelled the odor of alcohol and saw the key in the ignition. He shook appellant to determine his condition. When appellant awoke, he exhibited slurred speech and a confused mental state. Officer Reuben then asked appellant to exit the vehicle.
Summoning appellant from his vehicle constituted a seizure under the Fourth Amendment. Day, 461 N.W.2d at 407. This seizure was valid and justified, because the officer had a reasonable suspicion that a crime had been committed, i.e. the officer believed that appellant was in control of a motor vehicle while intoxicated. See Crawford v. Commissioner of Pub. Safety, 441 N.W.2d 837, 839 (Minn.App. 1989) (officer had basis for Fourth Amendment seizure after she observed that driver had glassy and watery eyes and smelled of alcohol). The officer did not summon appellant from his vehicle until after observing this evidence of intoxication: appellant smelled of alcohol, was confused, and exhibited slurred speech. These facts do not constitute a "fishing expedition" in which the police stop someone on a whim and see what, if any, criminal activity they can find. Cf.
Day, 461 N.W.2d at 408 ("restraint of appellant was for idle curiosity outside the parameters of conduct acceptable under the fourth amendment"). The officer here approached appellant to check on his welfare and saw sufficient indicia of intoxication to establish reasonable suspicion to seize him.
Appellant also argues the officer lacked probable cause for the arrest. Minn. Stat. § 169.121, subd. 1(a) (1994) makes it a crime for anyone to "be in physical control of any motor vehicle * * * when the person is under the influence of alcohol." A person may be in physical control of the vehicle even though the motor is not running. State, Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 320 (Minn. 1981). Officer Reuben observed appellant asleep in the driver's seat with the keys in the ignition and the brake lights illuminated. These facts establish probable cause that appellant was in physical control of the vehicle.
Although many "telltale" signs of intoxication may exist, an officer need see only one objective indicator of intoxication to establish "reasonable and probable grounds" that the person is under the influence of alcohol. Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 365 (Minn.App. 1983); see also State v. Hicks, 301 Minn. 350, 353-54, 222 N.W.2d 345, 348 (1974) (holding officer need not observe all indicia of intoxication before determining individual is under the influence). In addition to the signs of intoxication the officer had observed before he seized appellant, the officer witnessed appellant's unsteadiness on his feet; he needed assistance to walk. Furthermore, appellant failed the PBT, which meant his alcohol concentration was at least .11.
Based on these facts, the court properly determined that Officer Reuben had probable cause to believe that appellant had committed DWI. The trial court properly sustained the revocation of appellant's driving privileges.