This opinion will be unpublished and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

C1-01-135

 

 

Birk Holger Juul, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed August 7, 2001

Affirmed

Halbrooks, Judge

 

Redwood County District Court

File No. CX-00-492

 

 

Barry L. Hogen, Tyrol West, Suite 320, 1500 South Highway 100, Golden Valley, MN 55416 (for appellant)

 

Mike Hatch, Attorney General, Matthew G. Frank, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

 

 

            Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Lindberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            This is an appeal from the district court order sustaining the revocation of appellant’s driver’s license.  Appellant argues that there was no reasonable, articulable suspicion for seizing him and that the district court erred in finding that the police officer approached an already-stopped vehicle.  Appellant argues that instead, he was seized when the officer pulled up behind him with the squad car’s emergency lights activated.  Because we conclude that the district court’s findings were not clearly erroneous and appellant was not seized, we affirm.   

FACTS

            At approximately 10:39 p.m. on August 25, 2000, Redwood Falls Police Officer Kenneth Harmon was patrolling an area of County Road 101 that had been closed to general traffic since early summer.  Signs indicating the road closure were posted on each end of the closed area.  Several private residences along County Road 101 had exclusive access from the closed road, but the businesses in the area had a temporary access road.  Harmon was concluding the stop of another vehicle when appellant Birk Juul’s car approached from the opposite direction.  Suddenly, appellant made a u-turn, stopped, and turned off his lights.  Harmon got into his squad car with his emergency lights still flashing from the previous stop and proceeded to pull his car behind appellant’s vehicle.  Both Harmon and appellant were beyond the turn-off from County Road 101 to the private residences.  While speaking with appellant, Harmon noticed indicia of intoxication and placed appellant under arrest for driving while intoxicated.     

            At the implied-consent hearing, Harmon testified that he had not taken any action to stop appellant before pulling in behind appellant’s stopped vehicle.  Appellant impeached Harmon with his written police report.  The officer’s report stated that, after the previous stop, Harmon turned on his emergency lights, followed, and then stopped appellant.  Harmon acknowledged that his report was incorrect. 

The district court made its findings on the record.  The court found that Harmon “reasonably acted in approaching the already stopped vehicle” and that there was “probable cause for [Harmon] to approach the already stopped vehicle.”  The court issued an order sustaining the revocation of appellant’s license.  This appeal follows.        

D E C I S I O N

I.

            Appellant argues that, because Harmon’s testimony conflicted with his written report, the district court erred in finding that Harmon approached appellant’s stopped vehicle.  This court will not set aside a district court’s findings of fact, whether based on oral or documentary evidence, unless such findings are clearly erroneous.  Minn. R. Civ. P. 52.01.  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  Witness credibility and the weight given to the evidence are issues for the trier of fact.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). 

Here, appellant impeached Harmon with the report.  But the district court, given the opportunity to observe the witness, believed his testimony and found that Harmon approached appellant’s already-stopped vehicle.  Nothing in the record indicates that this finding is clearly erroneous.  

II.

 

Appellant argues that, because Harmon had no basis to believe that appellant was in the area illegally, the seizure was illegal.  See Minn. Stat. § 160.27, subd. 5(14) (2000) (making it a misdemeanor to “drive over, through, or around any barricade * * * erected for the purpose of preventing traffic from passing over a portion of a highway”). 

An officer’s conduct constitutes a seizure if, looking at all of the facts, it communicates to a reasonable person in the defendant’s position that the officer is attempting “to capture or seize or otherwise significantly intrude on the person’s freedom of movement.”  State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993).  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).  An officer may also approach a vehicle even when there is no indication that its occupants are engaged in criminal activity to determine whether they need assistance.  Kozak v. Commissioner of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984). 

In Hanson, the supreme court held that an officer’s use of his flashing red lights behind a stopped vehicle on the shoulder of the highway at night does not necessarily turn the encounter into Fourth Amendment seizure.  504 N.W.2d at 220.  Similarly, in this case, Officer Harmon testified, and the district court found, that Harmon did not stop the vehicle.  Because Harmon simply approached appellant’s already-stopped vehicle, there was no seizure. 

            Even if we were to conclude that a seizure occurred, there is reasonable, articulable suspicion to support the stop.  The factual basis required to support a traffic stop is minimal.  Klotz v. Commissioner of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989), review denied (Minn. May 24, 1989).  The police must show that the stop was not the product of mere whim, caprice, or idle curiosity.  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996).  “[T]he officer must have objective support for his belief that the person is involved in criminal activity.”  State v. George, 557 N.W.2d 575, 578 (Minn. 1997). 

            Appellant argues that Harmon had no reasonable, articulable suspicion to believe that any traffic violation or criminal activity had occurred.  In a similar case, this court found no reasonable suspicion when a police officer stationed at a barricade marked “road closed local traffic only” stopped every car passing to verify whether the driver was an area resident.  State v. Anderson, 620 N.W.2d 56, 57 (Minn. App. 2000).  In Anderson, the state conceded that the officer did not know if the defendant lived in the area and had “no reason to believe that appellant was acting unlawfully.”  Id.  The court held that because “[t]he officer could not reasonably state a basis to stop a driver,” the officer did not have a reasonable, articulable belief that a traffic offense was occurring.  Id. at 58. 

            But here, unlike the defendant in Anderson, appellant had passed the point at which local traffic would have turned off to the private residences.  On this record, Harmon had a reasonable, articulable suspicion to support his belief that appellant had violated Minn. Stat. § 160.27, subd. 5(14).

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.