This opinion will be unpublished and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

C0-01-904

 

Daniel James Bertelsen, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed December 11, 2001

Affirmed

Harten, Judge

 

Ramsey County District Court

File No. C2-01-317

 

L. Charles Peterson, 871 East Seventh Street, St. Paul, MN   55106 (for appellant)

 

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

 

            Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant Daniel James Bertelsen challenges the district court's order sustaining the revocation of his driver’s license, pursuant to the implied consent law.  Bertelsen contends that a seizure occurred when the officers immobilized his vehicle and that the seizure was not based on a reasonable suspicion as required by both the United States and Minnesota Constitutions.  He further contends that he was merely sleeping in the driver’s seat of his friend’s car with the motor running and that the officers had no reasonable and articulable suspicion to believe that he had been driving under the influence.  We affirm.

FACTS

            Bertelsen’s driver’s license was revoked pursuant to Minn. Stat. § 169.123 (1998).  The facts are undisputed.  The events leading to the revocation unfolded as follows.

On December 11, 2000, Officer Robert Flick responded to a call from dispatch regarding a “suspicious occupied vehicle,” described as a silver pickup truck, parked behind the White Bear Bar.  Flick testified that his computer showed that the call was placed by “T.J.,” whom he knew to be Tom Ricky, the manager of the White Bear Bar.  Flick considered him to be a reliable source of information.  Flick, along with Officer Krause in a separate squad car, responded to the call at 12:16 a.m.  Upon arriving at the parking lot of the White Bear Bar, the officers found a pickup truck parked in the driving lane, with the lights on and engine running. 

Both officers approached the truck on foot and found a man behind the steering wheel in the driver’s seat, apparently sleeping.  After confirming that the man was breathing, the officers situated their squad cars in front and in back of the pickup truck, positioning the squad cars’ push bumpers within approximately six inches of the bumpers of the pickup truck.  Flick explained that he had awakened sleeping persons before and that in his experience they sometimes react quickly and try to drive away.  Flick conceded that the occupant of the vehicle would have been unable to move the truck.

After positioning the squad cars, Flick approached the truck, opened the driver’s side door, reached across the sleeping man, and shut off the engine.  At this point the occupant of the vehicle, Bertelsen, awakened.  Flick reported that he noticed a strong smell of alcoholic beverages.  He asked Bertelsen if he was okay, and Bertelsen responded that he was.  After administering field sobriety tests, Flick arrested Bertelsen for being in physical control of a motor vehicle while under the influence of alcohol in violation of Minn. Stat. § 169.121 (1998). 

            In his testimony at the hearing, Bertelsen admitted that the keys to the truck were in the ignition and that he had turned on the engine, headlights, and heater while waiting for a ride.  The district court found that the placement of the squad cars did constitute a seizure, but that the seizure was lawful under the circumstances and therefore upheld the revocation of Bertelsen’s license. 

D E C I S I O N

[W]hen the facts are not in dispute, a reviewing court must determine whether a police officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure.

 

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted).  The state conceded in the district court that, when the officers placed their vehicles at the front and rear of the truck occupied by Bertelsen, a seizure occurred.  “A seizure occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (quotation omitted).  Because Bertelsen was unable to move the truck, we agree that a seizure did take place.  See State v. Sanger, 420 N.W.2d 241, 242-43 (Minn. App. 1988) (concluding seizure did occur when officer boxed in defendant's vehicle with squad car).

            Bertelsen argues that the seizure was unlawful. 

The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person seized of criminal activity.

 

Harris, 590 N.W.2d at 99 (quotation omitted).

Conclusions of law will be overturned only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case.

 

Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986) (citation omitted).

            The Fourth Amendment to the United States Constitution and Article 1, section 10, of the Minnesota Constitution prohibit unreasonable searches and seizures of “persons, houses, papers and effects.”  A police officer has probable cause to believe that an individual is in physical control of a vehicle while under the influence of alcohol when,

based on the totality of the circumstances, there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious [person] in believing that the [individual] was in physical control [of a motor vehicle]. 

 

Shane v. Comm’r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (footnote omitted) (quotation omitted).  To justify a seizure, an “officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).  “In reviewing an officer's determination of probable cause * * * great deference should be paid to the officer’s experience and judgment.”  Vertina v. Comm'r of Pub. Safety, 356 N.W.2d 412, 414 (Minn. App. 1984) (quotation omitted).

An officer decides whether to conduct a seizure based on all available information,

[a]nd in determining whether the officer acted reasonably in such circumstances, due weight must be given * * * to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. 

 

Terry, 392 U.S. at 27, 88 S. Ct. at 1883.  These circumstances include the officer’s general knowledge and experience, his personal observations, information received from other sources, the nature of the suspected offense, the time, the location, and any other relevant factor.

Bertelsen argues that Flick had no reasonable basis to seize him.  Flick received a call after midnight from the known bar manager that a suspicious occupied vehicle was parked behind the White Bear Bar.  Flick arrived minutes later and found the truck exactly as described by the manager.  The truck was parked in the driving lane of the parking lot behind the bar with the motor running and the headlights on.  Flick approached the car on foot and found it occupied by a man who appeared to be sleeping slumped over the steering wheel.  Flick instructed Krause to box in the truck because of his experience with people awakened by the police.  Considering all the facts, Flick had reasonable, articulable suspicion that Bertelsen was in physical control of a motor vehicle while impaired.  Flick had a duty to investigate and could not safely do so without at least temporarily seizing Bertelsen.  We conclude that in light of the totality of the circumstances, the seizure of Bertelsen was reasonable and lawful.  Once Flick came in contact with Bertelsen, the cause for seizure quickly ripened into probable cause to believe that Bertelsen was in physical control of a motor vehicle while under the influence of alcohol. 

Bertelsen argues that Flick was required to exhaust other possible causes for sleeping behind the wheel of a running automobile before conducting the seizure.  The United States Supreme Court has rejected this argument.  See Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335 n.13 (1983) (“the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts”).  See also State v. Combs, 398 N.W.2d 563, 565-66 (Minn. 1987) (rejecting the idea that a stop is presumptively invalid when observed facts are consistent with innocent activity).  The fact that Bertelsen’s sleeping may have been caused by something other than intoxication does not mean that reasonable, articulable suspicion did not exist.  The question is not whether Bertelsen’s sleeping established without a doubt that he was in physical control of a motor vehicle while impaired; the question is whether his slumped-over state supported reasonable, articulable suspicion that he was in physical control of a motor vehicle while impaired.  The facts of this case adequately support the conclusion that Flick had a reasonable, articulable suspicion.  

            Affirmed.