This opinion will be unpublished and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
Daniel John Oehrlein,
Commissioner of Public Safety,
Filed February 5, 2002
Crow Wing County District Court
File No. CX01716
Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101-2264 (for appellant)
Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Foley, Judge.
In this appeal from an order sustaining appellant’s license revocation, appellant argues that the district court erred in denying his petition to suppress evidence because the state trooper seized him in violation of the Fourth Amendment. Appellant contends that the state trooper did not have reasonable and articulable suspicion, and he was seized when the state trooper asked appellant to come out of the ditch and remove his helmet. We affirm.
At 9:40 p.m. on March 1, 2001, Minnesota State Trooper Dave Keenan (trooper) was patrolling Highway 169 in Crow Wing County. While stopping a driver for speeding, the trooper noticed headlights shining onto the highway from a ditch area east of Highway 169. After completing the speeding stop, the trooper went back to the location and, because the lights were still visible, decided to investigate.
The lights came from a snowmobile that was stationary in the ditch. The trooper testified that, “[i]t seemed weird that a snowmobile would be at the same spot for a long period of time,” and so he decided to “check on the driver.” The trooper asked the driver, appellant Daniel John Oehrlein, to come out of the ditch and remove his helmet. When appellant complied, the trooper asked whether he needed a tow for the snowmobile. During the conversation, the trooper noticed that appellant’s speech was “[s]lightly slurred” and he smelled “the odor of an alcoholic beverage.”
Appellant produced his driver’s license, and the trooper had him sit in the squad car so that he could “further investigate the alcohol and determine whether or not he was going to need help getting his snowmobile out.” But appellant was neither handcuffed nor frisked before entering the squad car.
Upon checking appellant’s driver’s license, the trooper discovered that it was cancelled for “use of alcohol.” He administered the horizontal-gaze nystagmus test, which measures the deviations in eye motion as the eye follows an object from side to side; appellant failed that test. The trooper then administered a breath test. The portable breath test registered an alcohol concentration of .15, and appellant was placed under arrest for DWI.
At the station, the trooper read appellant the implied-consent advisory, and appellant agreed to an alcohol-concentration test, which placed him over the legal limit. As a result, appellant’s driver’s license was revoked.
Appellant challenged the revocation, alleging that the trooper did not have reasonable and articulable suspicion to seize him, and therefore evidence obtained as a result of that seizure should be suppressed. The district court sustained the revocation, concluding that the seizure did not occur until after the horizontal-gaze nystagmus test and that the seizure was supported by “specific and articulable facts.”
A district court’s findings must be sustained unless they are clearly erroneous. Frost v. Comm’r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984). But once the facts are settled, this court determines, as a matter of law, whether the police officer’s actions constitute a seizure and whether the officer had adequate basis for the seizure. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Here, although appellant does not specifically argue that the district court erred in its factual finding, he states that the trooper “demanded” that he step away from the snowmobile, exit the ditch, and remove his helmet. The district court found that the trooper “requested” appellant come out of the ditch and remove his helmet. In his testimony, the trooper stated that he “asked” appellant to come out of the ditch and take off his helmet. The term “ask” is synonymous with the term “request.” Roget’s Thesaurus 30 (1985). Because the district court’s finding has a basis in the trooper’s testimony, the finding is not clearly erroneous. See Frost, 348 N.W.2d at 804.
Appellant argues that he was seized without reasonable and articulable suspicion the moment that the trooper asked him to come out of the ditch and remove his helmet and that the district court erred by failing to suppress evidence obtained as a result of an illegal seizure. But the district court concluded that appellant was not seized until after the trooper had administered the horizontal-gaze nystagmus test and that the seizure was “supported by specific and articulable facts.”
In addressing appellant’s argument, this court must determine whether requesting appellant to come out of the ditch and remove his helmet constitutes a seizure as a matter of law and, if so, whether that seizure was supported by reasonable and articulable suspicion. See In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993) (holding that, to justify seizure, “the police must be able to articulate reasonable suspicion”).
Contact between an officer and a private person does not always involve a seizure. Harris, 590 N.W.2d at 98. In determining whether a seizure has occurred, this court determines whether a police officer’s actions would lead a reasonable person, under the same circumstances, to believe that he was not free to leave. State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993).
The courts, however, generally give police officers wide latitude in assisting the public. For instance, in Hanson, the supreme court held that an officer’s use of flashing lights upon seeing a stopped vehicle did not turn the encounter into a seizure. 504 N.W.2d at 220. In Hanson, the court stated that “[a] reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help.” Id.
Appellant alleges that the trooper’s requests cannot be explained by his interest in assisting the public, arguing that inquiry into whether “assistance was desired or required could have been accomplished without having [appellant] exit the ditch,” and, therefore, the requests for appellant to come out of the ditch constituted behavior that “would make a reasonable person feel as though they could not disregard the order or terminate the encounter.” But appellant cites no authority, and none exists, for the proposition that an officer seizes an individual when he asks the individual to come over so that he can inquire whether that individual needs help and the officer “could have” accomplished the inquiry from a distance.
In fact, it is reasonable for a person wishing to talk to appellant, given the winter conditions and the difficulty in descending into the snow-filled ditch, to ask him to come out of the ditch. A seizure does not generally occur when an officer approaches a vehicle during winter conditions to assist the driver because it is common practice to approach stopped vehicles in winter out of concern for the welfare of the occupants. See Blank v. Comm’r of Pub. Safety, 358 N.W.2d 441, 442-43 (Minn. App. 1984); see also State v. Pfannenstein, 525 N.W.2d 587, 588-89 (Minn. App. 1994) (holding that officer approaching seemingly stranded motorcycle did not constitute seizure); Kozack v. Comm’r Pub. Safety, 359 N.W.2d 625, 627-28 (Minn. App. 1984) (holding that officer approaching a stranded vehicle does not constitute a seizure). It follows, then, that the less intrusive act of requesting an individual to come out of a snow-filled ditch to determine if help is needed is also generally not a seizure. In this case, the trooper testified that he decided to “check on the driver” because “[i]t seemed weird that a snowmobile would be at the same spot for a long period of time.” Given the circumstances, a reasonable person would not have concluded that the officer was investigating criminal wrongdoing and that he was not free to leave.
Appellant also alleges that when the trooper asked him to exit the ditch and take off his helmet, he was seized because the request for appellant to take off his helmet was “unnecessary” and a product of the trooper’s “hunch” that appellant was engaged in criminal wrongdoing. Appellant relies on State v. Johnson for the proposition that an investigatory stop based on the hunch of criminal wrongdoing, without additional evidence of criminal misconduct, violates the Fourth Amendment. 444 N.W.2d 824, 825-26 (Minn. 1989). But the district court’s findings do not support the allegation that the trooper requested appellant to remove his helmet because of a hunch of criminal wrongdoing. The district court found that
[the trooper] requested that the helmet be removed for three distinct reasons. One reason was to facilitate voice communication. A second reason was officer safety (apparently based on the opinion that his ability to view the eyes of a person could serve to alert him to potential actions and contribute to his safety along the side of a busy highway in non-daylight hours). A third reason was [the trooper’s] opinion that the point of focus of a person’s eyes is an indicator of whether they are speaking truthfully.
Additionally, in Minnesota, it is customary and courteous for a person to remove their helmet before engaging in conversation. We are not prepared to say that, as a matter of law, any time a person is requested to remove their helmet the encounter becomes a seizure.
Under these facts, appellant was not seized as a matter of law when the trooper requested he exit the ditch and remove his helmet. Because appellant was not seized, it is not necessary to examine whether the trooper had reasonable and articulable suspicion at that time, and we conclude that the district court did not err by failing to suppress evidence as fruit of illegality.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.