This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Daniel George Semark, petitioner,
Commissioner of Public Safety,
Dakota County District Court
File No. C4992551
Paul W. Rogosheske, Joe C. Dalager, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue South, Suite 100, South St. Paul, MN 55075 (for appellant)
Mike Hatch, Attorney General, Jeffrey S. Bilcik, Sean R. McCarthy, Michael Pahl, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s order sustaining the revocation of his driver’s license, claiming the police officer’s actions constituted an unlawful seizure in violation of the Fourth Amendment. We affirm.
D E C I S I O N
Appellant contends the district court erred in concluding the officer had an articulable basis for approaching appellant’s vehicle based on the unusual way the vehicle was parked and the officer’s concern that appellant may need assistance. We disagree.
The law makes a distinction between the approach of an already stopped vehicle and the stop of a moving vehicle. It is not a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver seated in an already stopped car. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980). It is immaterial that the vehicle is running. State v. Plut, 400 N.W.2d 377, 379 (Minn. App. 1987). An officer may also approach a vehicle to determine whether its occupants need assistance, even when there is no indication that its occupants are engaged in criminal activity. Kozak v. Commissioner of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984); Blank v. Commissioner of Pub. Safety, 358 N.W.2d 441, 442-43 (Minn. App. 1984).
Appellant contends that by shining a spotlight on appellant’s parked vehicle for two seconds from 40 feet away, the officer engaged in a sufficiently strong show of authority to transform his approach of the vehicle into a seizure. We disagree.
A showing of authority can transform a chance encounter into a seizure where,
looking at all of the facts, the conduct of the police would communicate to a reasonable person in the defendant’s physical circumstances an attempt by the police to capture or seize or otherwise to significantly intrude on the person’s freedom of movement.
State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993). When an officer orders a suspect out of a vehicle or engages in some other action that one would not expect between two private citizens, the event is more likely to constitute a Fourth Amendment seizure. Klotz v. Commissioner of Pub. Safety, 437 N.W.2d 663, 665 (Minn. 1989), review denied (Minn. May 24, 1989). The test is whether a reasonable person would have believed he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). Conduct that may transform an approach into a Fourth Amendment seizure includes the use of flashing red lights, boxing in the parked vehicle, or an approach of all sides of the vehicle by many officers. 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 107-08 (3d ed. 1996).
Here, the officer shined the spotlight on appellant’s vehicle for approximately two seconds from a distance of 40 feet with the admitted intention of encouraging appellant to move his car, which was parked horizontally across three parking spaces. The officer did not block appellant’s vehicle, turn on his flashing lights, or take any other action that might be interpreted as aggressive. When appellant continued to stare blankly, the officer approached the vehicle in order to determine whether appellant required assistance. The spotlight was no longer illuminating appellant’s vehicle when the officer approached.
The encounter here did not become a seizure simply by virtue of the officer’s use of his spotlight. See Crawford v. Commissioner of Pub. Safety, 441 N.W.2d 837, 838-39 (Minn. App. 1989) (holding officer had not engaged in seizure by following suspicious driver into residential cul-de-sac and activating spotlight to locate parked vehicle). In contrast to the aggressive police conduct in the cases cited by appellant, here there is no evidence that the officer intended to restrain appellant from leaving when he flashed his spotlight.
We conclude that, under these facts, the officer’s flashing of his spotlight was not a sufficiently strong showing of authority to render his approach of appellant’s vehicle a “seizure” for Fourth Amendment purposes.