This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-1976

 

Kevin John Griser, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed May 1, 2001

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. C5-00-4769

 

 

Daniel Spivey Adkins, Richard Sand & Associates, P.A., 168 Nina Street, St. Paul, MN 55102 (for appellant)

 

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

 

 

Considered and decided by Randall, Presiding Judge, Foley, Judge,* and Huspeni, Judge.*


U N P U B L I S H E D O P I N I O N

R.A. RANDALL, Judge

The Commissioner of Public Safety cancelled appellant's driver's license, which was conditioned on his total abstinence from alcohol. A police officer, after a short investigation, determined that appellant had consumed alcohol. The district court sustained the cancellation and denial of appellant's driving privileges. On appeal, Griser contends that the officer illegally seized him and that evidence should have been excluded. We affirm.

FACTS

Following a series of alcohol-related driving incidents in July 1982, June 1984, and November 1984, respondent Commissioner of Public Safety revoked appellant Kevin J. Griser's driver's license and then cancelled and denied his driving privileges under Minn. Stat.  171.04 and 171.14 (1984), effective December 8, 1984. Griser's driving privileges were reinstated on October 20, 1994, with the agreement that he would abstain from all use of alcohol or controlled substances as long as he wished to remain licensed to drive in this state.

On March 26, 2000, around 11:00 a.m., while checking vehicle registrations, Officer D. Wilson checked a car parked just outside of a St. Paul bar. The car was registered to Griser, who had a valid driver's license with a "B" restriction. The "B" restriction states that any use of alcohol or drugs invalidates the license. Griser's physical description on the driver's license was 5'11", 235 pounds, and hazel eyes. Wilson entered the bar to try to identify Griser and see if he was drinking alcohol. Several people fit the general description, one of whom was sitting at the bar drinking a Grain Belt Premium beer. Wilson did not identify anyone at that time.

Wilson returned to headquarters and obtained a booking photo of Griser from 1995 and returned to the bar with the photo and another officer around 2:15 p.m. Griser's vehicle was still parked in front of the bar. Two people resembling the photo were identified as not being Griser. The same man sitting at the bar earlier was still at the bar drinking from a twelve-ounce bottle of Grain Belt Premium beer. Wilson approached and asked the man for identification, which he presented and identified himself as Kevin J. Griser. Wilson picked up the bottle of beer and asked Griser to step outside. There, Wilson explained the circumstances about Griser's B-card stipulations. Griser admitted to drinking a couple of beers and knowing that he was violating his B-card. Wilson issued Griser a citation for violating his restricted license.

The City of St. Paul did not pursue any criminal charges because of insufficient evidence that Griser was operating a motor vehicle. But the city did report the incident to the Commissioner of Public Safety for possible violation of driving privileges.

Based on the police reports, the commissioner revoked Griser's driver's license and canceled and denied all further driving privileges on May 2, 2000. Griser petitioned for reinstatement of his driving privileges. For purposes of the hearing, Griser stipulated to the facts contained in the police report. The issue before the district court was whether the evidence obtained at the time of Griser's detention by the police was excludable at trial as the product of an unreasonable seizure. Based on the record, the district court ruled that the seizure was unconstitutional, but that the exclusionary rule did not preclude the commissioner from considering the evidence in an administrative hearing. Griser's petition was denied and his license revocation was sustained. This appeal followed.

D E C I S I O N

I. Exclusionary Rule.

Whether the exclusionary rule should be applied in an inimical-to-public-safety hearing is a legal question, which this court reviews de novo. See State v. Nelson, 608 N.W.2d 913, 915 (Minn. App. 2000) (stating reviewing court not bound by and need not give deference to district court's decision on purely legal issue).

Griser argues that because the district court found the seizure to be unconstitutional and there was no criminal activity involved in this case,[1] the incriminating evidence obtained from the seizure should not have been admissible at the hearing. The commissioner argues that it is not necessary to address the exclusionary rule in this case based on the facts that (1) the officer had ample evidence of Griser's alcohol use before any arguable illegal seizure occurred, and (2) Griser made a judicial admission of alcohol consumption, which is a sufficient basis in and of itself that he violated his abstinence restriction.

If there had been a seizure, as Griser argues, the suppressible items would be the beer bottle and Griser's statements to the police outside the bar. First, as to Griser's statements to the officer inside the bar, there is no constitutional issue. Those statements are admissible. "[I]t does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place * * * ." State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); see also State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (stating person generally not seized merely because police officer approaches person in public place and begins to ask questions). Asking for identification does not, generally, in and of itself, constitute a seizure; there needs to be more of a substantial intrusion by the officer. State v. Pfannenstein, 525 N.W.2d 587, 588-89 (Minn. App. 1994), review denied (Minn. Mar. 14, 1995).

We do not even have to reach the issue of whether there was a seizure and whether the beer bottle and Griser's statement outside should be suppressed. Wilson knew, even before identifying Griser, that a Minnesota driver by the name of Kevin John Griser had a B-card restriction requiring total abstention from alcohol. Wilson approached Griser only after investigating the situation and eliminating other possible candidates in the bar as Griser. While approaching Griser, Wilson saw him drink a beer. Wilson asked Griser for identification, and Griser complied. Griser was then asked to leave the bar where further discussion with Wilson took place and additional possible incriminating evidence was obtained.

Even assuming it was a seizure when Griser told Wilson to step outside the bar, Wilson saw enough evidence inside the bar to proceed. Inside the bar, a public place where Wilson had a right to be, he personally saw Griser drink from a bottle of beer. We do not have to reach the issue of whether the bottle should be suppressed. It is just incidental corroboration of what Wilson testified he saw Griser doing, with his own eyes, meaning Griser drinking from a bottle. Further Griser admitted drinking while inside the bar. Before any arguable seizure took place, Wilson had a good reason to notify the commissioner's office that he believed Griser violated his B-card restriction. At this point, there was enough evidence for the commissioner to revoke Griser's driving privileges, thus setting the stage for Griser's right to a district court hearing on the commissioner's actions.

Griser signed a form acknowledging that his driving privileges were conditioned on his complete abstinence from alcohol and drugs and that failure to abstain would result in the immediate and mandatory cancellation of driving privileges as soon as the commissioner had notice of the consumption. A B-card states that any use of alcohol or drugs invalidates the license. "[A]ny violation of that condition is a ground for cancellation and denial of driving privilege[s]." State v. Tofte, 563 N.W.2d 322, 324 (Minn. App. 1997) (citations omitted). "This is true regardless of whether the alcohol consumption was connected to driving." Id. at 325 (citation omitted). The city's decision not to pursue a criminal charge because of insufficient evidence that Griser was operating a motor vehicle does not affect Wilson's right to forward what he personally observed, as evidence, to the commissioner. Whether Griser's drinking beer was in connection with driving or operating a vehicle was not the issue with Griser's B-card. The simple fact of drinking or not was the issue.

II. Estoppel.

Griser argues that a "contract" exists between the commissioner and each driver in the State of Minnesota. He further argues that because of the reliance the commissioner has on police officers in the state to gather information for the commissioner's administrative duties, that necessarily makes the officers part of this "contract." He states that the relationship between the commissioner and the police officers is a principal-agent relationship and one of respondeat superior. He asserts that both the commissioner and the officers are parties to the contract with the drivers and, therefore, certain duties and obligations exist between the parties to the contract. Griser claims that the commissioner hid behind a "civil-case/no-exclusionary-rule curtain," and disregarded his duty to "abide by the Constitutions of both the United States and the State of Minnesota, as well as * * * protect driver's rights and remedies at law" by allowing an "unreasonable intrusion on [his] privacy." Griser concludes that because the commissioner breached his duty to him, the commissioner should be estopped from revoking his driving privileges.

First, we can find no breach by the commissioner of any of his duties in this case. More importantly, Griser did not raise this issue at trial. This court generally does not review issues not raised and addressed at trial. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Even examining the argument, it is not persuasive, considering the fact that under Griser's contract theory, Griser himself breached the "contract" with the commissioner by drinking and violating his B-card restriction, even before the officer went inside the bar.

Affirmed.



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

 

[1] There was no criminal activity. There was insufficient evidence that Griser operated a motor vehicle, and the city declined to prosecute Griser.