This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Linda Marie Stober, petitioner,
Commissioner of Public Safety,
Carver County District Court
File No. C5001885
Sharon D. Aizer, PO Box 286, Shakopee, MN 55379 (for appellant)
Mike Hatch, Attorney General, Melissa J. Eberhart, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Appellant challenges the revocation of her driver’s license on the ground that the officer lacked reasonable suspicion to justify an investigatory seizure of her. Appellant contends that a reliable tip concerning her erratic driving became stale when the officer learned that the driver made an intermediate stop at a friend’s residence. Because we find that the facts raised a reasonable suspicion that the driver leaving the residence after a brief stop was also the erratic driver, we affirm.
On October 21, 2000, a citizen on a cellular telephone called the Chaska police to report an individual in a white Chevrolet Lumina driving erratically. The caller informed the dispatcher that the vehicle, traveling west on County Road 10, had just crossed the centerline and nearly caused an accident. The caller identified himself and gave his cellular and home telephone numbers and provided the dispatcher with the vehicle’s license plate.
Chaska Police Officer Rueben Kelzenberg took a wrong turn in responding to the call and ended up more than a mile from the identified location. During this time, the caller followed the vehicle until it stopped at a residence in a mobile-home park and the driver got out. The caller relayed this information to the dispatcher and then drove away. Kelzenberg “cleared the call,” but drove to the mobile-home park to see if he could find the vehicle.
As he approached the park, Kelzenberg saw a vehicle pulling out that had the same make, model, color, and license-plate number as the one described by the caller. Kelzenberg followed the vehicle and observed it traveling 5-10 miles per hour under the speed limit in the middle of an unmarked, residential road. The vehicle turned into the parking lot of an apartment building at 625 Ravoux Road, the address of the vehicle’s registered owner. Kelzenberg pulled his squad car behind the vehicle, effectively blocking it. A total of 13 minutes elapsed between dispatch’s initial call and Kelzenberg’s contact with appellant.
Kelzenberg approached the vehicle and stood next to the driver’s door. He identified appellant Linda Marie Stober as the driver and owner of the vehicle and confirmed with her that no one else had driven the vehicle that evening. He noticed an “obvious odor” of alcohol, and appellant acknowledged that she had been drinking “some.” Kelzenberg asked her to perform a field sobriety test and then placed her under arrest for driving under the influence.
Appellant challenged her subsequent driver’s license revocation at a hearing on December 27, 2000. At the hearing, Kelzenberg testified that he intended the conversation with appellant to be an investigatory stop; appellant testified that she felt that she was unable to leave and was compelled to answer the officer’s questions.
The district court issued an order sustaining the revocation of appellant’s driving privileges. The court found that the totality of the circumstances, including the detailed information about the vehicle provided to dispatch and the brief time interval between the initial call and the stop, provided a sufficient basis for a limited investigatory inquiry. This appeal follows.
Appellant contends that she was unlawfully seized when Officer Kelzenberg pulled his police car behind her vehicle, approached the driver’s side of the car, and began questioning her. Thus, we must determine whether there was a seizure and, if so, whether that seizure was justified.
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). The test of whether a seizure occurred is if, 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). 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). Moreover, there is no seizure when the driver voluntarily stops her car. Blank v. Comm’r of Pub. Safety, 358 N.W.2d 441, 442 (Minn. App. 1984). But a seizure does occur 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).
Here, the circumstances are such that a reasonable person may not have felt free to have disregarded the officer’s questions. Although appellant stopped voluntarily and Kelzenberg did not flash his emergency lights, he did pull his squad car behind appellant in a way that prevented her from moving her car. He also approached the driver’s side of the car and “made contact” with appellant as she sat in the vehicle, making it impractical for her to walk away. Finally, Kelzenberg asked appellant questions about the report of erratic driving and requested that she produce identification. See State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994) (concluding that more intrusive requests for identification are more likely to be seizures), review denied (Minn. Mar. 14, 1995). Similarly
a reasonable person would believe that he or she has been seized when an officer approaches that person for the express purpose of investigating him or her for specific criminal violations and begins to ask for information.
Cripps, 533 N.W.2d at 391 (citing State v. Kearns, 867 P.2d 903, 907-08 (1994)). Because Kelzenberg blocked appellant’s car while he asked her for identification and questioned her, we hold that appellant was seized.
The corollary inquiry is whether the seizure was justified by a reasonable suspicion of illegal activity. Appellant argues that the seizure was unjustified because the officer was aware that the driver had gotten out of the vehicle at the mobile-home park after the initial report of erratic driving.
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, 417-18, 101 S. Ct. 690, 695 (1981) (citations omitted). In forming specific and articulable suspicion, an officer may rely on the observations of another person. In re Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997); Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). But the informant’s tip must contain sufficient “indicia of reliability” to justify a traffic stop. Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn. 1985). The reliability of the informant’s information is judged
mainly on two factors: (1) identifying information given by the informant, and (2) the facts that support the informant’s assertion that a driver is under the influence.
Jobe v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000) (citation omitted). This court begins its analysis with the assumption that information from private citizens is reliable. Marben, 294 N.W.2d at 699.
Here, the identity of the citizen-informant was known. He provided his name and cellular and home telephone numbers so he could be contacted in follow-up, if necessary. In addition, the informant provided the dispatcher with thorough information about the vehicle. He told the dispatcher the make, model, and license number of appellant’s car and provided specific examples and locations of appellant’s erratic driving. The dispatcher relayed the information to the officer, who encountered appellant 13 minutes later.
Appellant argues that the seizure was unlawful because the tip only described the vehicle and how it was being driven and gave no physical description of the driver. As a result, appellant contends that the tip became stale once the officer knew the driver got out of the vehicle in the mobile-home park. In other words, because the officer could not be certain that the person driving away from the mobile-home park was the earlier erratic driver, the officer had no basis to block appellant’s car in her apartment-building parking lot.
While it is true that the officer could not be certain at that time that appellant was the erratic driver, all that is required is an articulable, reasonable suspicion. Within 13 minutes of the initial report, the officer followed the identified car from the mobile-home park to the confirmed address of the registered owner. Under the totality of the circumstances, it was reasonable for the officer to assume that it was the same driver. As a consequence, the officer’s brief investigatory seizure of appellant was justified. Cf. Harris, 590 N.W.2d at 99 (“a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure”) (citation omitted)).