Opinion
No. C2-98-1296.
Filed February 23, 1999.
Appeal from the District Court, Hennepin County, File No. 97-77170.
Martin J. Costello, Richfield City Attorney, (for respondent)
Harlan Goulett, Allan H. Caplan Assoc., P.A., (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Gregg Brusehaver appeals from his conviction of gross misdemeanor driving while under the influence of alcohol. Minn. Stat. § 169.121, subds. 1(a)(d)(e), 3(c)(1) (1996). Because the arresting officer had a particularized, objective basis for suspecting Brusehaver of criminal activity, we agree with the district court that the officer's investigative stop and seizure of Brusehaver were valid under the Fourth Amendment. We therefore affirm Brusehaver's conviction.
This court addressed and rejected Brusehaver's challenge to the validity of the stop and seizure when it affirmed revocation of his driver's license in Brusehaver v. Commissioner of Pub. Safety , C4-98-621 (Minn.App. Oct. 6, 1998).
DECISION
On given facts, whether an investigative stop is valid is a question of law. State v. Hjelmstad , 535 N.W.2d 663, 664 (Minn.App. 1995). The test is not whether the trial court's decision is clearly erroneous, but whether, as a matter of law, the basis for the stop was adequate. Berge v. Commissioner of Pub. Safety , 374 N.W.2d 730, 732 (Minn. 1985).
The Fourth Amendment applies to brief investigatory stops of vehicles, and an officer must have a "`particularized and objective basis for suspecting the particular person stopped of criminal activity'." State v. Pike , 551 N.W.2d 919, 921-22 (Minn. 1996) (quoting United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 695 (1981)). Although a "seizure" does not occur when an officer approaches an already stopped vehicle, a "show of authority" may convert the officer's actions to a seizure. State v. Vohnoutka , 292 N.W.2d 756, 757 (Minn. 1980); Blank v. Commissioner of Pub. Safety , 358 N.W.2d 441, 442 (Minn. 1984); Klotz v. Commissioner of Pub. Safety , 437 N.W.2d 663, 665 (Minn.App. 1989), review denied (Minn. May 24, 1989); Paulson v. Commissioner of Pub. Safety , 384 N.W.2d 244, 246 (Minn.App. 1986). Nonetheless, an investigative seizure is "commonly referred to as an investigative stop" and need only meet the same standards as a stop to be valid. State v. Holmes , 569 N.W.2d 181, 184-85 (Minn. 1997).
In this case, Brusehaver argues that the arresting officer "seized" him when he walked up to his already parked vehicle and ordered him to place his hands where the officer could see them. The district court basically agreed, but nevertheless concluded that the brief, investigatory stop, or seizure was justified because (1) the officer believed Brusehaver's vehicle was the same one he had seen moments earlier driving without its headlights on, and (2) when the officer drove by Brusehaver's parked vehicle, he observed Brusehaver "slouch down" as if to avoid being seen by the officer.
Driving a vehicle with its headlights off between sunset and sunrise is a misdemeanor. Minn. Stat. §§ 169.48, subd. 1(1), 169.468, subd. 4 (1996). Such a traffic violation may justify a brief, investigatory stop. See, e.g., Pike , 551 N.W.2d at 922 (officer knew vehicle owner had revoked license); Berge , 374 N.W.2d at 733 (officer observed facts justifying inference that driver ran stop sign); Holm v. Commissioner of Pub. Safety , 416 N.W.2d 473, 475 (Minn.App. 1987) (driver failed to dim headlights when approaching oncoming traffic). The officer's belief that Brusehaver's parked vehicle was the same one he had seen moments earlier, together with his observation of Brusehaver "slouching" in his seat, represent specific, articulable facts to justify the officer's investigatory stop and seizure of Brusehaver.
We therefore affirm Brusehaver's conviction.