This opinion will be unpublished and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
State of Minnesota,
Perry James Krohn,
Hubbard County District Court
File No. K300720
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Gregory D. Larson, Hubbard County Attorney, P.O. Box 486, Park Rapids, MN 56470 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Willis, Judge.
Appellant challenges the trial court’s determination that no seizure of his person occurred when a police officer blocked appellant’s van and then ordered him to wait until completion of the officer’s investigation. Because appellant was seized and this occurred without any reasonable, articulable suspicion, we reverse.
At approximately 8:45 a.m. on October 10, 2000, Officer Phillip Juve, on routine patrol duty, was dispatched to investigate a white van that was parked in a 30-minute parking zone adjacent to an apartment complex. The officer was told that two men previously exited the van, entered the apartment building and then headed toward a nearby river, while a third man was still in the van. Upon arrival, Officer Juve parked his squad car perpendicularly behind the van, blocking it.
As Officer Juve positioned his car, appellant Perry James Krohn got out of the van and walked over to the officer. Officer Juve testified that appellant was cooperative and calm throughout the encounter. The officer questioned appellant as to what he was doing. Appellant replied that he was waiting for some friends to return from a walk. At some point the officer discovered that appellant did not have keys to the vehicle. Officer Juve then commanded appellant to wait by the vehicle while he proceeded to walk into the apartment complex, speak to the complainant (the apartment caretaker), and walk down to the river to look for appellant’s companions. Officer Juve estimated that this took him approximately five minutes.
Upon returning to the vehicle, Officer Juve asked appellant for identification. In the next several minutes, the officer found good cause to believe appellant was falsely identifying himself. Officer Juve then handcuffed and arrested appellant for giving a peace officer a false name, a misdemeanor offense in violation of Minn. Stat. § 609.506, subd. 1 (2000).
Subsequent to a pat-down search of appellant, Officer Juve found a test tube vial in appellant’s boot. The vial contained a crystal like substance. Officer Juve then called a K-9 unit and the van was searched. The dog “hit” on a duffle bag that contained several bags of methamphetamine and items associated with the manufacture of drugs.
The trial court denied appellant’s motion to suppress, finding appellant had not been seized until he was arrested. After the state amended the complaint by lowering the original first-degree charge to a fourth-degree controlled substance crime, appellant entered into a Lothenbach plea that permitted this appeal. The trial court found appellant guilty of fourth-degree possession of methamphetamine and sentenced him to a stayed fifteen-year prison term.
When reviewing pretrial orders on motions to suppress evidence, we are to independently review the facts and determine, as a matter of law, whether the trial court erred in suppressing—or not suppressing—the evidence. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).
The Fourth Amendment of the U.S. Constitution and Article I, Section 10, of the Minnesota Constitution, prohibit unreasonable searches and seizures. 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) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S. Ct. 1868, 1879 n.16 (1968)). Under the Minnesota Constitution, “a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.” Cripps, 533 N.W.2d at 391 (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24 (1983), and United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)).
Some of the circumstances that might indicate a seizure has taken place, even where the person did not attempt to leave, include
the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
In re E.D.J., 502 N.W.2d 779, 781. (Minn. 1993) (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1877); see also Cripps, 533 N.W.2d at 391 (identifying similar circumstances).
In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.
E.D.J., 502 N.W.2d at 781 (quoting Mendenhall, 446 U.S. at 555, 100 S. Ct. at 1877). The key is whether, when police officers ask questions of an individual or request consent to a search, they “convey a message that compliance with their requests is required.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (quoting Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 2386 (1991)).
Not all encounters between the police and citizens constitute seizures. E.D.J., 502 N.W.2d at 781.
A person generally is not seized merely because a police officer approaches him in a public place or in a parked car and begins to ask questions.
Harris, 590 N.W.2d at 98 (citations omitted).
Moreover, seizure does not result when a person, due to some “moral and instinctive pressures to cooperate,” complies with a request to search because the other person to the encounter is a police officer.
Id. (quoting Wayne R. LaFave, “Seizures” Topology: Classifying Detentions of the Person to Resolve Warrant, Grounds and Search Issues, 17 U. Mich. J.L. Reform 417, 424 (1984) (footnotes omitted)).
Here, the facts are not in dispute; appellant waived a jury trial and stipulated to the facts in the record. Appellant, citing State v. Sanger, 420 N.W.2d 241 (Minn. App. 1988), contends that he was unlawfully seized either at the time the officer parked his squad car blocking the van, or when he was instructed to wait while the officer conducted his investigation, citing E.D.J., 502 N.W.2d 779. The trial court found that Officer Juve’s actions did not rise to the level of a seizure because appellant’s inability to leave was a result of his own lack of keys rather than the officer’s choice of where he parked the squad car.
In Sanger, this court concluded that a seizure occurred where an officer, on routine patrol and on his own initiative, blocked a defendant’s car and could not explain why he positioned his car as such. 420 N.W.2d at 243. This court concluded that absent some explanation, the officer intended the obstruction as a natural consequence of his actions. Id. Similarly, Officer Juve did not provide an explanation for his show of authority; he simply acknowledged that he blocked appellant’s vehicle. See 3 W. LaFave, Search and Seizure § 9.2(h) at 416-17 (2d ed. 1987) (stating that an encounter becomes a seizure when some police action occurs which one would not expect if the encounter was between two private citizens—boxing the car in, approaching it on all sides, or the use of flashing lights as a show of authority—and will likely convert the event into a seizure). As the trial court observed, Officer Juve did not know at that time that appellant did not have the keys or even that appellant had permission to park there. But if appellant’s lack of control over the vehicle by not having its keys tends to refute application of Sanger to this case, we hold that a seizure nonetheless occurred when the action of Officer Juve toward the vehicle is viewed in light of his next step of instructing appellant to wait while he conducted an investigation. See E.D.J., 502 N.W.2d at 782.
In E.D.J., officers on routine patrol of a corner known to be an area of heavy drug trafficking saw three persons standing on a street corner. 502 N.W.2d at 780. Upon seeing the police, the individuals turned and began walking, looking back at the squad car as they walked away. Id. The officers pulled up behind the men and ordered them to stop. Id. The supreme court concluded a seizure occurred when the police directed E.D.J. to stop walking. Id. at 783.
The test, as articulated in E.D.J., is whether a reasonable person in appellant’s position would believe that because of the conduct of the police, he was not free to leave. Id., 502 N.W.2d at 783. Here, the combination of Officer Juve’s directive to wait and his show of authority by boxing in appellant’s vehicle—despite appellant’s lack of keys, would lead a reasonable person to believe that he was subject to police command.
Because the trial court determined that appellant was not seized until his arrest for giving an officer a false name, it did not reach the issue of whether Officer Juve had reasonable, articulable suspicion to support a stop.
A seizure is unlawful only it is unreasonable. A brief seizure of a person for investigatory purposes is not unreasonable if an officer has a “particularized and objective basis for suspecting the particular person [seized] of criminal activity.” State v. Johnson, 444 N.W.2d 824, 825 (Minn.1989) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). The officer may justify his decision to seize a person based on the totality of the circumstances and “may draw inferences and deductions that might elude an untrained person.” Cripps, 533 N.W.2d at 391 (citation omitted). However, a mere hunch, absent other objectively reasonable, articulable facts, will not justify a seizure. Harris, 590 N.W.2d at 99.
On appeal, respondent contends that appellant aroused suspicion by evading the officer’s question as to what his friends were doing. Respondent cites Eggersgluss v. Comm’r of Pub. Safety, 393 N.W.2d 183 (Minn. 1986), for the proposition that when a defendant makes vague or untruthful responses to questions by investigating officers, it may be deemed evidence of a guilty conscience, justifying further inquiry.
But Eggersgluss involved very different circumstances. In Eggersgluss, an officer was dispatched to an accident scene involving a car rollover, where the defendant denied he had been drinking despite the officer’s observations of defendant’s flushed face, watery eyes and smell of alcohol on his breath. 393 N.W.2dat 185. Here, even the vagueness of appellant’s answer would not suggest reasonable, articulable suspicion because there was no past or present suspicion of future criminal conduct.
Alternatively, the state argues that the citizen’s complaint provided reasonable and articulable facts of “suspicious activity,” warranting Officer Juve’s investigative stop. While information provided by private citizens is presumed reliable, specific facts concerning criminal activity are required in order for an officer to make a valid, lawful stop based on the information. State v. Warren, 404 N.W.2d 895, 896 (Minn. App. 1987). Here, the information provided specific facts relating to a parking concern and an observation that two men entered an apartment complex and then walked to the river. The dispatch notes read:
[The apartment complex manager] reports three guys in a white van in the parking lot of Riverheights Apt. He says that two of the men in the van went through the building and then down by river leaving one man in the van. He would like an officer to stop by and check it out.
The complaint does not, nor did Officer Juve in his testimony, articulate what suspicious activity he was to investigate other than a potential parking concern. See State v. Holmes, 569 N.W.2d 181, 185 (Minn. 1997) (holding that a police officer who merely has reasonable suspicion that a parking violation has occurred cannot seize an individual for the purpose of investigation).
Because we conclude that a seizure of appellant occurred when the officer ordered him to remain where he was while the officer conducted his investigation, and that the officer lacked reasonable, articulable suspicion to do so, appellant was entitled to suppression of the evidence obtained from the unlawful seizure. We need not address the issue of appellant’s arrest for giving a peace officer a false name.
 According to the Incident Detail Report (IDR), the two men were looking for a restroom.