Opinion
No. C8-02-1213.
Filed April 29, 2003.
Appeal from the District Court, Kandiyohi County, File No. C902262.
Barry L. Hogen, (for appellant)
Mike Hatch, Attorney General, Darren Dejong, Assistant Attorney General, (for respondent)
Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Kelly Anna Syverson challenges the revocation of her driver's license and impoundment of her license plates for operating a motor vehicle while impaired. Appellant argues that she was unlawfully seized when she was asked to approach a police officer. Because a reasonable person under the circumstances would not have considered herself to be seized at this point, we affirm.
FACTS
Early in the evening on January 26, 2002, Kandiyohi County Deputy Todd Neumann was in the parking lot of the Food and Fuel convenience station in Spicer, attempting to aid a motorist who had locked her keys in her car. Because Neumann was having difficulty, Deputies Halbasch and Tollefson were dispatched to aid him. When they arrived at the Food and Fuel, Tollefson went to help Neumann, and Halbasch began fueling his squad car. As Halbasch fueled his vehicle, he noticed appellant park a dark pickup in the parking lot. After Tollefson and Neumann unlocked the motorist's car, Neumann drove to the front of the station and left his vehicle. As he got out of his car, Neumann felt a pat on his back and when Neumann turned around, he identified Ryan Fadness as the source of the contact. Based on Fadness's poor balance and strange demeanor, Neumann determined that Fadness was quite intoxicated. Neumann briefly engaged Fadness in conversation and asked if he was driving that night. Fadness stated that he was not driving.
As Neumann and Fadness were talking, Neumann noticed a woman, later identified as appellant, get out of the driver's side of the dark pickup in the Food and Fuel lot. It became apparent that appellant and Fadness were together and, concerned that Fadness would have a sober driver to give him a ride home, Neumann asked appellant if she was driving. Appellant stated that she was not. Neumann thought this was strange, because he saw her get out of the driver's side of the pickup moments earlier. When Neumann asked appellant about this, she stated that she had just come from a bar across the street and the pickup had been parked at the present location for about an hour. Although Neumann had been in the parking lot for roughly an hour, he had not noticed the pickup. Appellant further stated that "Holly," otherwise unidentified, was the designated driver.
Contrary to appellant's version of events, Halbasch informed Tollefson and Neumann that he saw appellant drive the dark pickup into the parking lot while Halbasch was fueling his squad car.
Neumann was now suspicious that appellant had been driving while impaired and instructed Tollefson to check appellant to see if she was "okay" to drive. When Tollefson approached appellant, she was standing on the sidewalk next to the Food and Fuel building. Tollefson, intending to perform a Horizontal Gaze Nystagmus (HGN) test, asked appellant to step off the sidewalk, toward him. Appellant complied. As Tollefson began administering the test, he noticed an odor of alcohol about appellant. Appellant failed the HGN test. Subsequently, appellant submitted to an intoxilyzer test under Minnesota's Implied-Consent Law. The results of the intoxilyzer test revealed a blood alcohol concentration in excess of the legal limit.
Appellant's driver's license was revoked under Minn. Stat. § 169A.52, subd. 4 (2000), and her license plates were impounded under Minn. Stat. § 169A.60, subd. 2 (2000). Appellant petitioned for judicial review. By order dated May 15, 2002, the district court sustained the revocation and impoundment. This appeal followed.
DECISION
The only issue presented for decision by this court is whether appellant was seized when she was asked to step off the sidewalk in the direction of the deputy making the request.
Whether or not a seizure has been effectuated is a question of law that we review de novo. State v. Day, 461 N.W.2d 404, 406 (Minn.App. 1990), review denied (Minn. Dec. 20, 1990). When a reasonable person under the circumstances, "would have believed that because of the conduct of the police he was not free to leave," a seizure has occurred. In re E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). Obviously, not all encounters between police officers and citizens are seizures. But when the officer engages in a show of authority or other action that goes beyond the expectations of the average citizen, a seizure has likely taken place. Day, 461 N.W.2d at 407. Whether a seizure has occurred depends on the totality of the circumstances, as applied to a reasonable person. State v. Harris, 572 N.W.2d 333, 336 (Minn. 1997). Circumstances that may indicate that a seizure has occurred, even when the individual did not attempt to terminate the encounter, include
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.
E.D.J., 502 N.W.2d at 781.
Appellant makes much of the presence of several uniformed deputies at the moment of the request to appellant, but there is no indication that a reasonable person in appellant's circumstances would believe compliance with a deputy's request to step forward was compelled. Virtually none of the factors that the supreme court has found significant in determining that a seizure has taken place was present here. There was no display of weapons by the officers, and there was no physical touching or language or tone indicating that compliance with the officer's request might be compelled. See id. at 781 (listing examples of circumstances indicating a seizure has occurred). Indeed, the only factor identified by the supreme court that might apply here is "the threatening presence of several officers." Id. But here only one officer approached appellant and it is not at all clear from this record that the other officers in the area were in any way involved with the particular request at issue.
We conclude that until Tollefson began administering the HGN test, a reasonable person in appellant's position would have considered herself free to terminate the encounter with law enforcement and thus no seizure occurred. Because we find that no seizure occurred, we do not address appellant's argument that there was no articulable suspicion justifying a seizure. Accordingly, we affirm the district court.
It is, of course, undisputed that a seizure occurred shortly after the incident described here. But it is clear that there was reasonable, articulable suspicion to seize appellant after Tollefson administered the HGN test, smelled alcohol on her breath, and it became known that she had been observed driving the vehicle by one deputy and yet another deputy saw her leaving the driver's side of the vehicle.