This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-2183

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Brian Sanden,

Appellant.

 

Filed July 2, 2002

Affirmed

Hanson, Judge

 

Clay County District Court

File No. T2-01-6250

 

Lisa N. Borgen, Clay County Attorney, Stephanie J. Borgen, Assistant County Attorney, 807 11th Street North, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)

 

Beverly L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, ND 58108-6017 (for appellant)

 

††††††††††† Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Hanson, Judge.

U N P U B L I S H E D† O P I N I O N

HANSON, Judge

Appellant was convicted of third-degree driving while impaired.† On appeal, he argues that he was illegally seized when police pulled up behind the parked car where he was sitting in the driverís seat, trained the spotlight on his vehicle, and two officers approached the vehicle, one asking appellant for identification and proof of insurance.† We affirm.

FACTS

At approximately 3:00 a.m. on July 4, 2001, Officer Mike Rapp of the Dilworth Police Department was patrolling in his marked squad car.† He observed a vehicle parked behind a local bar with its headlights on and engine running.† An occupant of the vehicle was leaning out of the open passenger door.†

Rapp parked approximately 15 yards behind the vehicle and activated his overhead spotlights to illuminate the scene, but did not turn on his red flashing emergency lights.† The passenger left his vehicle and approached Rappís squad car.† Rapp twice told the passenger to return to his vehicle; the passenger complied with the second request.

Rapp then walked to the driverís side window and asked the driver for his driverís license and insurance card.† The driver identified hismself as appellant Michael Sanden.† Sanden told Rapp that he stopped and parked his car because the passenger, his brother, felt ill.† While speaking with Sanden, Rapp detected a strong odor of alcohol on Sandenís breath, and noticed that Sandenís eyes were bloodshot and watery, and his speech slurred.† Sanden admitted he had been drinking alcohol.† Sanden was arrested and a breath test revealed an alcohol concentration of .17.†

Sanden was charged with two counts of third-degree driving while impaired.† Sanden moved to suppress the evidence, arguing that it was obtained during an unlawful seizure.† The district court denied the motion.† The parties then filed a Lothenbach stipulation waiving the right to a jury trial and preserving his right to appeal the district courtís decision on the suppression motion.† The district court found Sanden guilty of third-degree driving while impaired in violation of Minn. Stat. ßß 169A.20, subd. 1(1), .27 (2000), and third-degree driving while impaired with an alcohol concentration above .10, in violation of Minn. Stat. ßß 169A.20, subd. 1(5), .27 (2000).† This appeal followed.†

D E C I S I O N

Sanden argues that Rappís actions constituted an unlawful seizure.† In reviewing pretrial suppression orders, we independently review the facts and determine as a matter of law whether the trial court erred in its decision.† State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).† We accept the district courtís findings of fact unless they are clearly erroneous, but independently apply the law to the facts.† See Berge v. Commír of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

††††††††††† While not all contact by police officers with an individual results in a seizure of the person, a seizure may occur when a police officer, ďby means of physical force or show of authority, has in some way restrained the liberty of a citizen.Ē† State v. Day, 461 N.W.2d 404, 406 (Minn. App. 1990) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16 (1968)), review denied (Minn. Dec. 20, 1990).† Seizures occur only when, ďin view of all the circumstances surrounding the incident, reasonable persons would not believe they were free to leave.Ē† Id. (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877 (1980)) (other citation omitted).† The Minnesota Supreme Court has adopted the Mendenhall-Royer standard for determining whether a seizure of the person has occurred.† Harris, 590 N.W.2d at 98.†

††††††††††† It is well established that a seizure occurs when a police officer stops a vehicle.† Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979).† But Rapp did not stop Sandenís vehicle; he pulled behind the vehicle when it was already stopped.† In such situations

courts generally have held that it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car.

State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (citing 3 W. LaFave, Search and Seizureß 9.2(g) (1978)).†

We have found a ďshow of authorityĒ sufficient to constitute a seizure where officers requested a person to exit a parked vehicle and approach the officer, Day, 461 N.W.2d at 407, or used a squad car to block a stopped vehicle from moving.† Klotz v. Commír of Pub. Safety, 437 N.W.2d 663, 664 (Minn. App. 1989), review denied (Minn. May 24, 1989).†

When none of these factors is present, courts have concluded that an approach to the vehicle by police is not a seizure.† For example, in Vohnoutka, the supreme court held that when the police saw a motorist shut off his vehicle lights at night, drive into the parking lot of a visibly closed service station and stop, no seizure occurred when the officers pulled up behind the vehicle, one of the officers walked to the vehicle and shined his flashlight into the passenger compartment, and the officer observed contraband in open view.† 292 N.W.2d at 757.

Similarly, in State v. Reese, we held that no seizure occurred when two officers in a squad car approached an intersection, observed two vehicles stopped in adjacent lanes blocking the intersection with both engines running and headlights on, pulled the squad car into the intersection at an angle that allowed the headlights to illuminate one of the cars, approached the vehicle, asked the driver for identification and, while speaking with her, observed indicia of intoxication.388 N.W.2d 421, 422-23 (Minn. App. 1986), review denied (Minn. Aug. 13, 1986).

Finally, in State v. Hanson, 504 N.W.2d 219 (Minn. 1993), the supreme court held that a squad carís flashing red lights, when stopping behind a car stopped on the shoulder of a highway at night, does not turn the encounter into a Fourth Amendment seizure.† The court stated:

[T]he question to be asked by the reviewing court is whether, looking at all the facts, the conduct of police would communicate to a reasonable person in defendantís physical circumstances an attempt by police to capture or seize or otherwise to significantly intrude on the personís freedom of movement.†

 

Id. at 220.

Applying these authorities, we conclude that Rappís approach to the vehicle and request for identification and proof of insurance was not a seizure.† Sandenís vehicle was already stopped when Rapp first observed it.† Rapp parked his squad car 15 yards behind Sandenís vehicle and did not box Sanden in.† Rapp did not use his emergency lights.† Rapp approached Sanden; he did not summon Sanden to him.† Under these facts, the officerís conduct would not have communicated to a reasonable person in Sandenís circumstances an attempt to seize him.

Because these facts did not consitute a seizure, the single request for identification also does not create a seizure. †See State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994) (holding that a single request for identification to the owner of parked vehicle, without more, did not consitute seizure under totality-of-the-circumstances test), review denied (Minn. March 14, 1995).† Further, the passengerís approach to the squad car, and Rappís instructions for him to return to his own vehicle, do not consititute a seizure.† Such a request is routine police protocol for officer safety.†

††††††††††† Affirmed.