This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Kenneth Earl Dennis,
Filed October 17, 2000
Lincoln County District Court
File No. KO99113
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Michael W. Cable, Lincoln County Attorney, 214 North Norman Street, Ivanhoe, MN 56142 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
In an appeal from conviction of burglary and theft, Kenneth Dennis challenges the constitutionality of a police investigative seizure. We agree that a seizure occurred when a police officer asked for, received, and retained Dennis’s identification to check for outstanding warrants. But because a particular and objective basis existed for the limited investigatory seizure, we affirm.
Kenneth Dennis’s arrest stemmed from a police investigation of a hang-up 911 telephone call from a pay telephone in a Brookings, South Dakota, park. Brookings Police officer David Erickson, following department policy to investigate the location of all hang-up 911 calls, drove to the park pay phone. Erickson saw Dennis, the only person in the park, sitting in a parked car approximately 50 yards away from the phone where the 911 call originated. Dennis was sitting in the driver’s seat with the driver-side door open and one foot on the ground.
Erickson parked directly behind Dennis’s vehicle on the park roadway and approached Dennis to find out if he had any knowledge of the 911 phone call, if he had made the call, or if he had seen anyone else do it. Dennis told Erickson that some kids had been “messing around” with the pay phone but they had left the area. Erickson asked Dennis for identification, and Dennis gave him an out-of-state driver’s license.
Erickson “ran [Dennis’s] name through dispatch” and received a report that Dennis had an active Mississippi arrest warrant for grand larceny. Erickson arrested Dennis. The police inventory of the car produced several items that Dennis admitted he stole from residences in Hendricks, Minnesota. He also admitted that he had stolen the car he was driving. Based on these admissions, the State of Minnesota brought burglary and theft charges against Dennis in Lincoln County.
Before trial, Dennis moved to dismiss the charges for lack of a constitutional basis to support an investigative seizure. The district court denied the motion, finding that police acted reasonably in inquiring about the 911 call and that Dennis was not seized until he was arrested on the outstanding warrant.
Dennis stipulated to the state’s case under the procedure outlined in State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980). Based on the stipulated facts contained in the complaint, the district court found Dennis guilty of burglary in the first degree in violation of Minn. Stat. § 609.582, subd. 1(a) (1998), theft of a motor vehicle in violation of Minn. Stat. § 609.52, subd. 2(17), 3(2) (1998), and two counts of theft in violation of Minn. Stat. § 609.52, subd. 2(1), 3(5) (1998).
Dennis appeals, contending that (1) the district court incorrectly ruled that retaining the driver’s license to run a computer check did not amount to a seizure, and (2) the seizure was constitutionally unreasonable.
D E C I S I O N
When reviewing a district court’s ruling on a Fourth Amendment issue based on undisputed facts, this court determines independently whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). The legality of a limited investigatory detention turns on whether the police officer’s act constitutes a seizure and, if so, whether the state is able to demonstrate an objectively reasonable articulable suspicion for the seizure. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
“Not all contact between citizens and police constitutes a seizure.” State v. Cripps, 533 N.W.2d 388, 390 (Minn. 1995) (citation omitted). Rather, a seizure occurs “‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’” Id. at 391 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)). A person has been seized if, considering the totality of the circumstances surrounding the incident, a reasonable person would not believe that he or she was free to disregard the police questions or terminate the encounter. Florida v. Bostick, 501 U.S. 429, 436-37, 111 S. Ct. 2382, 2387 (1991).
When an officer approaches and talks to a driver seated in a stopped, parked car, no seizure occurs. State v. Vohnoutka,292 N.W.2d 756, 757 (Minn. 1980). But a seizure occurs when “the police engage in some other action or show of authority which one would not expect between two private citizens.” State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990) (citing 3 Wayne LaFave, Search and Seizure § 9.2(h) (2d ed. 1987)), review denied (Minn. Dec. 20, 1990).
The district court found that no seizure occurred until after Erickson conducted a warrant check on Dennis. But Minnesota courts have held that retaining a person’s identification may constitute a seizure. See State v. Holmes, 569 N.W.2d 181, 184-85 (Minn. 1997) (finding a seizure when an officer asked for and retained a student-identification card); Cripps, 533 N.W.2d at 391 (holding that the police officer seized the suspect in asking her to produce identification to prove she was of legal age to consume alcohol); Day, 461 N.W.2d at 407 (finding a seizure when a police officer summoned a motorist to approach the officer’s car to provide identification and respond to questioning).
Neither the transcript nor the district court’s findings specifically address whether Erickson kept Dennis’s driver’s license while he checked for outstanding warrants. The reasonable implication, however, from both the testimony and the court’s findings, is that Erickson did retain the license when he made the warrant check from his squad car. Other factors also point toward a seizure. Erickson was armed and in uniform and parked his marked squad car directly behind Dennis’s car.
Considering the totality of the circumstances, including the retention of Dennis’s license, a reasonable person would not feel free to disregard the officer’s questioning or terminate the encounter. Thus we conclude that Dennis was seized within the meaning of the Fourth Amendment.
A brief seizure of a person is not unreasonable if an officer has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981) (citations omitted). An officer’s particular and objective basis may include inferences and deductions that might elude an untrained person. Cripps, 533 N.W.2d at 391. “The officer, however, must be able to point to objective facts and may not base his or her conclusion on a hunch.” Id. at 391-92 (quotations omitted).
Erickson approached Dennis’s parked car to ask Dennis about the 911 hang-up telephone call. Dennis was the sole person in the area, only 50 yards away from the phone where the 911 call originated, and he was sitting in his car with one foot on the ground as if just leaving or returning to the car. Under South Dakota law, it is a misdemeanor to “knowingly cause[ ] a false * * * emergency alarm to be transmitted to * * * any * * * government agency which deals with emergencies involving danger to life or property[.]” S.D. Codified Laws § 22-11-9 (Michie 1998). The circumstances support a reasonable suspicion that Dennis might have made a nuisance 911 call and then hung up. Officer Erickson could have also reasonably suspected Dennis of impeding another’s efforts to report an emergency by not allowing that person to complete the 911 call.
Under the totality of the circumstances, Erickson’s limited investigatory seizure of Dennis was supported by a particular and objective basis for suspecting illegal activity. The district court did not err in denying the motion to suppress the evidence that police obtained as a result of the investigatory seizure.
In a pro se supplemental brief, Dennis asserts that no one actually made the hang-up 911 call. The brief provides no basis for relief because this argument was not raised in the district court and has no evidentiary support on appeal. Instead, the record supports the district court’s finding that the encounter between Dennis and Erickson resulted from Erickson’s investigation of a 911 call.