This opinion will be unpublished and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

C6-00-1125

 

Mykola Kovalenko,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed January 2, 2001

Affirmed

Holtan, Judge*

 

Dakota County District Court

File No. CX002268

 

Michael E. Molenda, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN  55124-7580 (for appellant)

 

Mike Hatch, Attorney General, Max A. Keller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Forsberg, Judge,** and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

Appellant Mykola Kovalenko challenges the trial court order sustaining the revocation of his driver’s license under the implied consent law.  He contends the officers made an unconstitutional seizure of his vehicle by blocking his lane of traffic while investigating another vehicle.  We affirm.

FACTS

In the early morning hours of February 25, 2000, appellant was traveling eastbound on a city street when he saw three squad cars, with their emergency lights activated, parked in the eastbound traffic lane and shoulder.  Because the squad cars were blocking his lane of traffic, and double yellow lines made passing in the westbound lane illegal, appellant stopped his vehicle.

An officer then walked up to his vehicle, asked whether he needed assistance, and then noticed indicia of intoxication.  It is undisputed that the squad cars were present in connection with the unrelated stop of another vehicle, that the officers had no suspicion at the time appellant stopped his vehicle that he had engaged in wrongdoing, and that the officers had not constructed a sobriety checkpoint roadblock.

            Appellant’s driver’s license was revoked pursuant to the implied consent law.  He sought judicial review, contending his vehicle was seized by the officers blocking his lane of traffic, and that the seizure was unconstitutional because it was not based on reasonable suspicion.  The trial court sustained the revocation, holding that no seizure occurred at that point.  This appeal followed.

D E C I S I O N

            When the facts are undisputed, an appellate court will review an officer’s actions as a matter of law to determine whether a seizure occurred.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

            An officer may legally seize an individual based on “particularized and objective” facts showing that the person may have engaged in criminal activity.  Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  It is undisputed that at the time appellant stopped his vehicle, the officer did not have any suspicion that appellant engaged in wrongdoing.  At issue here is whether the officers seized appellant’s vehicle by their actions in blocking the road.[1]

            A seizure occurs when an officer restrains a person’s liberty through “physical force or show of authority.”  Harris, 590 N.W.2d at 98.  The test is whether, under all the circumstances, “a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).  In determining whether a seizure has occurred, a trial court may consider factors such as “the threatening presence of several officers, the display of a weapon * * *, some physical touching * * * or the use of language or tone of voice.”  Harris, 590 N.W.2d at 98 (citations omitted). “Not all encounters between police and citizens constitute seizures.”  Id. (citation omitted).

            Appellant contends that he was seized when he was unable to proceed in the eastbound lane because the squad cars, with warning lights activated, blocked his lane of travel, and he could not legally pass in the westbound lane of traffic.  But the officers did not display any show of force, question, or otherwise engage in an ecounter with appellant at this point; instead, their display of force was directed toward the other, unrelated vehicle.  The police actions, which only incidentally stopped appellant’s vehicle, did not constitute a seizure of appellant’s vehicle.  See Erickson v. Commissioner of Pub. Safety, 415 N.W.2d 698, 701 (Minn. App. 1987) (finding no seizure where officers’ actions of parking their vehicles incidentally blocked another vehicle).

            Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

 

** Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1]  These facts superficially resemble those of a sobriety checkpoint roadblock, which requires individualized articulable suspicion of wrongdoing.  Ascher v. Commissioner of Pub. Safety, 519 N.W.2d 183, 187 (Minn. 1994).  But the issue we examine here is whether a seizure occurred; a roadblock presents the question of whether the officers had individualized suspicion of wrongdoing to justify the seizure that did occur.