State of Minnesota,
Charles Anthony Sonmor,
Filed July 11, 2001
Ottertail County District Court
File No. KX00736
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55101; and
David J. Hauser, Otter Tail County Attorney, Kurt A. Mortenson, Nicole S. C. Hansen, Otter Tail County Courthouse, 121 West Junius, Fergus Falls, MN 56537 (for respondent)
Paul Thorwaldsen, Janelle R. Steger, Thorwaldsen, Malmstrom, Sorum & Donehower, P.L.L.P., 1105 Highway 10 East, P.O. Box 1599, Detroit Lakes, MN 56502 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of gross misdemeanor DWI, appellant Charles Anthony Sonmor argues that the trial court erred when it admitted evidence obtained by a police officer who stopped Sonmor without a reasonable articulable suspicion and that without the improperly admitted evidence, there was not probable cause to arrest Sonmor. We affirm.
On February 17, 2000, at approximately 2:11 a.m., Officer Scott Sachs received a call from dispatch informing him that a person was walking along Highway 59. Sachs responded and saw an individual who was later identified as Sonmor walking north on Highway 59, several blocks south of the Pelican Rapids city limits. Sachs also saw zigzagging footprints in the snow behind Sonmor. Sachs drove past Sonmor, made a u-turn, stopped his patrol car in front of Sonmor, turned on his emergency lights, and approached Sonmor.
Sachs asked Sonmor if he had any problem or needed any help. Sonmor told Sachs that he was fine and did not need any help. Sachs asked Sonmor for identification, which he provided. Sachs noticed that there was snow on Sonmor’s jeans and that the jeans were rolled up as if Sonmor had been in deep snow. Sachs testified that he noticed a moderate odor of alcohol from Sonmor and that Sonmor “seemed to be real brief” in his responses. Because Sonmor appeared to be shivering, Sachs asked him to sit in the squad car. The parties disagree as to whether Sonmor sat in the front or back seat of the car, and the district court made no finding in that regard. Sachs then told Sonmor that he noted a strong odor of alcohol.
While Sonmor was seated in the car, Sachs asked him what brought him to be where he was. Sonmor said that he had been fired from his job that evening for coming to work with alcohol on his breath, that a stranger gave him a ride to a club two miles north of Pelican Rapids, that he had been drinking there, and that he had met another stranger at the club who offered to give him a ride home. According to Sonmor, while en route to his home in Erhard, he got into an argument with the stranger and was kicked out of the vehicle.
Sachs testified at the omnibus hearing that Sonmor’s story did not make sense because Sonmor was walking in the opposite direction of Erhard when Sachs approached him. Sachs also testified that he spoke to Sonmor for approximately five to seven minutes while Sonmor was seated in the squad car. Sachs then asked Sonmor if he had actually been driving a vehicle and if that was why he was walking back towards Pelican Rapids. Sonmor replied that he had not. Sachs then asked Sonmor, “If we turned around, and go south a little ways where you’ve come from, am I going to find your vehicle?”
With Sonmor in the squad car, Sachs turned the car around and drove approximately one mile south, where he saw a pickup truck in the ditch. Sachs turned the spotlight from the squad car down onto the truck, which was in deep snow in the east ditch. Sachs asked Sonmor if that was his vehicle, and Sonmor replied that it was. Sonmor said that his earlier story was not true and that he had been driving the pickup, which ended up in the ditch when he tried to light a cigarette. Sachs then administered a horizontal gaze nystagmus test and a preliminary breath test. After Sonmor failed the tests, Sachs arrested him for DWI.
Sonmor was charged with gross misdemeanor DWI. He moved to dismiss the charge on the grounds that no articulable suspicion existed to stop him and that there was no probable cause for his arrest. The omnibus court found that Sonmar was seized in violation of his Fourth Amendment rights but that if Sonmor had not been illegally seized, Sachs inevitably would have discovered the evidence of his driving while intoxicated. Therefore, the court denied the motions to dismiss. Sonmor entered a guilty plea pursuant to State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980), specifically reserving his right to appeal the ruling on his motions.
[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.
State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Here, we are reviewing the omnibus court’s initial determination that evidence should be suppressed because Sonmor was illegally seized.
[G]enerally the mere act of approaching a person who is standing on a public street or sitting in a car that is parked and asking questions is not a “seizure.”
In re Welfare of E.D.J., 502 N.W.2d 779, 782 (Minn. 1993). But, if,
under all the circumstances, a reasonable person would have believed that because of the conduct of the police he was not free to leave, then there was a “seizure,” and the police must be able to articulate reasonable suspicion justifying the seizure, else any evidence that is the fruit of the seizure is suppressible.
Id. at 783.
The omnibus court did not explicitly state when a seizure occurred, but its order suggests that it concluded that a seizure occurred either when Sachs asked Sonmor for identification or when Sachs asked Sonmor to get into the squad car. We conclude that under all the circumstances of this incident, neither asking for identification nor asking Sonmor to get into the squad car constituted a seizure.
Citing State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995), Sonmor argues that a seizure occurred when Sachs took his identification card and continued to hold it. Sonmor states the holding in Cripps too broadly. In Cripps, the defendant was in a bar when she was asked by an armed and uniformed police officer to produce her identification. Before the officer asked for the defendant’s identification, the defendant watched the officer check the identifications of other bar patrons. The Cripps court did not hold that a seizure occurs whenever a police officer asks a citizen for identification. Instead, the court carefully limited its holding to the facts of the case before it. The court stated:
By asking [the defendant] to produce identification, [the officer] was asking [the defendant] to prove that she was of legal age to consume alcohol. [The officer’s] request, therefore, involved more than a simple inquiry into [the defendant’s] identity. Under these circumstances, we conclude that an objectively reasonable person would have believed that he or she was neither free to disregard the officer’s request nor free to terminate the encounter, knowing that he or she was being asked to prove his or her innocence of the crime of underage consumption of alcohol.
Id. (emphasis added). Unlike the circumstances in Cripps, Sachs’s request for identification involved nothing more than a simple inquiry into Sonmor’s identity.
The supreme court explained in E.D.J. that the standard for determining whether a seizure has occurred:
rests upon the proposition that police, without having later to justify their conduct by articulating a certain degree of suspicion, should be allowed “to seek cooperation, even where this may involve inconvenience or embarrassment for the citizen, and even though many citizens will defer to this authority of the police because they believe—in some vague way—that they should.” If “the moral and instinctive pressures to cooperate are in general sound and may be relied on by the police,” then a street encounter does not amount to a fourth amendment seizure merely because of those pressures—that is, merely because the other party to the encounter is known to be a policeman. Rather, the confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse. The critical inquiry is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens.
E.D.J., 502 N.W.2d at 782 (quoting Wayne R. LaFave, “Seizures” Topology: Classifying Detentions of the Person to Resolve Warrant, Grounds, and Search Issues, 17 U.Mich.J.L.Ref. 417, 424-25 (1984) (footnotes omitted)).
Sonmor might have provided his identification and gotten into the squad car because he felt some inherent pressure to cooperate with the requests of a policeman. But this inherent pressure is not sufficient to make either of these events a seizure. There was not a seizure unless Sachs’s conduct went significantly beyond that accepted in social intercourse. We conclude that Sachs’s conduct did not.
Sonmor provided his identification in response to a single request. There was no show of authority or other intimidating conduct that would indicate to a reasonable person that he or she was not free to decline the request. See State v. Pfannenstein, 525 N.W.2d 587 (Minn. App. 1994) (police officer’s single request for identification not a seizure when there was no show of authority or other conduct that indicated request could not be declined), review denied (Minn. Mar. 14, 1995). Furthermore, the record does not indicate what the temperature was when Sachs came upon Sonmor, but Sachs testified that it was cold, and the incident occurred in February. Even if Sonmor was not shivering, there is no question that it was cold out, and the car provided shelter from the cold. Under these circumstances, asking Sonmor to get into the car “would be perceived as a nonoffensive contact if it occurred between two ordinary citizens.”
We conclude that in view of all of the circumstances surrounding this incident, Sach’s conduct could no longer be perceived as a nonoffensive contact between two ordinary citizens, and therefore constituted a seizure, only when Sachs asked Sonmor if he turned the car around and drove the other way, would he find Sonmor’s car. At that point, Sonmor became aware that he was the focus of an investigation and that Sachs suspected him of drunken driving. Under those circumstances, a reasonable person would no longer feel free to leave.
When a seizure occurs, “the police must be able to articulate reasonable suspicion justifying the seizure, else any evidence that is the fruit of the seizure is suppressible.” E.D.J., 502 N.W.2dat 783. Sachs articulated his suspicion when he asked Sonmor, “If we turned around, and go south a little ways where you’ve come from, am I going to find your vehicle?” The question indicated that Sachs suspected that Sonmor had been driving and that his car would be found down the road in the direction from which Sonmor was walking.
And Sachs’s suspicion was reasonable. Sachs had smelled alcohol, which indicated that Sonmor had been drinking, and Sonmor had admitted that he had been drinking in a club north of Pelican Rapids. In addition, Sonmor had told Sachs that he was walking because he had been kicked out of a car driven by a stranger. When Sonmor’s story was combined with Sachs’s observation that Sonmor’s pants were covered with snow as if Sonmor had been walking in deep snow, the story became implausible. If Sonmor had been kicked out of a car, there was no reason why he would have been walking in deep snow. But if his car had gone in the ditch, there was a reason for him to have been walking in deep snow. It was reasonable for Sachs to make these inferences based on the information he had. Consequently, the seizure was valid.
The omnibus court determined that Sonmor was arrested when Sachs began driving the squad car with Sonmor in it because at that point, Sonmor “was subjected to constraints comparable to those associated with formal arrest.” We disagree. Sachs was reasonably suspicious that Sonmor had been driving a vehicle while intoxicated and detained Sonmor based on that suspicion. Sachs turned the squad car around and drove down the highway looking for a vehicle. While Sachs conducted this investigation, he detained Sonmor in the squad car. The supreme court has indicated that when there is an investigative detention, as long as the reasonable suspicion for the detention remains, the police may continue the detention provided they act diligently and reasonably. State v. Moffatt, 450 N.W.2d 116, 119 (Minn. 1990).
In Moffatt, police stopped a car that was leaving the scene of a suspected burglary in progress and detained three men in the car because the men were soaked in sweat and gave a lame reason for being in the area, which made police suspect that the men were involved with the burglary. The men were taken from the car and placed in separate squad cars. They were told that they were being detained, and they were held in the squad cars while the tennis shoes they had been wearing were taken to compare the treads on the shoes with footprints at the scene of the suspected burglary. When it appeared that the treads on two of the shoes matched the footprints, the men were handcuffed, told that they were being taken into custody, and given Miranda warnings. This occurred 61 minutes after the car was stopped.
The men moved to suppress items found during a search of the car following their arrests. The trial court suppressed the items because the police did not have a reasonable basis for putting the men in squad cars and detaining them as long as they did, and if they had let them go when they should have, they would not have been able to seize the shoes or search the car. This court affirmed because the police exceeded the permissible duration of an investigative stop by placing the men in squad cars and by continuing to detain them after stopping the car failed to produce evidence establishing probable cause to arrest.
The supreme court reversed explaining:
We disagree with the trial court and the court of appeals that once the officers put the men in the squad cars they converted what might have been deemed to be a detention into a de facto arrest for which there was no probable cause. The court of appeals in effect adopts a rule that putting suspects in squad cars from which they are not free to leave amounts to a de facto arrest. The court relies for this on Florida v. Rover, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed. 229 (1983), but that is a plurality opinion which does not support such a rule. See discussion of Royer at 3 W. LaFave, Search and Seizure, § 9.2(g) (2ed. 1987). Further, the “not free to leave” language is unfortunate, because a person who is being detained temporarily is not free to leave during the period of detention, yet that does not convert the detention into an arrest. Additionally, the holding ignores State v. Herem, 384 N.W.2d 880 (Minn. 1986), where a stopped motorist was placed in a squad car. There we said that “simply requiring defendant to sit in a police car for a short time * * * did not take the situation beyond the realm of the ordinary traffic stop.
Id. at 119-20.
As in Moffatt and Herem, Sonmor was not free to leave the squad car once it began moving. But in Moffatt and Herem, the fact that the detained individuals were not free to leave the squad cars did not convert the detentions into de facto arrests. The issue is whether the police acted diligently and reasonably while the detention continued. Here, Sachs continued the detention for only about one minute after seizing Sonmor. We conclude that Sachs acted reasonably and diligently. Moving the car did not convert Sonmor’s detention into a de facto arrest.
We recognize that in Moffatt, the supreme court expressly declined to address the general issue whether police in some circumstances may move a person being detained a reasonable distance to the scene of the crime. Moffatt, 450 N.W.2d at 120. But this does not change our analysis because the omnibus court’s decision was based on its determination that Sonmor was not free to leave the squad car once it began to move, and therefore, he was subject to constraints comparable to a formal arrest. We see no basis for distinguishing between detained individuals who are not free to leave a squad car because it is locked and individuals who are not free to leave because a squad car is moving.
Furthermore, courts in other jurisdictions have concluded that a detained suspect may be brought to the scene of a crime without converting the detention into a de facto arrest. See Michigan v. Summers, 452 U.S. 692, 700, 101 S. Ct. 2587, 2593 n.12 (1981) (under certain circumstances the police must be able to detain the individual for longer than the brief time period involved in Terry and Adams); United States v. Short, 570 F.2d 1051, 1054 (D.C. Cir. 1978) (detention and removal of suspect to scene of burglary for purposes of identification permissible without probable cause for arrest).
Because we conclude that the omnibus court erred when it determined that Sonmor was illegally seized, we need not address the court’s determination that the evidence is admissible under the inevitable discovery doctrine. We affirm the determination that the evidence is admissible because we conclude that Sachs properly seized and arrested Sonmor. See Bains v. Piper, Jaffray & Hopwood, Inc., 497 N.W.2d 263, 270 (Minn. App. 1993) (appellate court will not reverse correct decision simply because trial court based its conclusion on incorrect reasons), review denied (Minn. Apr. 20, 1993).
 Sachs testified that Sonmor was shivering, but Sonmor denied that he was shivering.
 In Herem, the defendant was placed in the back seat of a squad car while he was questioned. The court stated that putting the defendant in the back seat of the squad car did not convert the seizure into a de facto arrest. 384 N.W.2d, at 883.