This opinion will be unpublished and

may not be cited except as provided by

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






Matthew David Franzen, petitioner,





Commissioner of Public Safety,



Filed July 2, 2002


Toussaint, Chief Judge


Carver County District Court

File No. C601000576


Douglas Voigt Hazelton, 600 South Highway 169, Suite 817, Minneapolis, MN 55426 (for appellant)


Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Hanson, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


Matthew Franzen appeals from the district court order sustaining the revocation of his driver’s license.  Because Officer Michael Kleber had adequate grounds for an investigative seizure and had probable cause to arrest appellant for driving while intoxicated, we affirm.



            On April 5, 2001, Chaska Police Officer Michael Kleber was called for service at 3:58 a.m.  The call indicated that there were two suspicious people in the Mount Pleasant Cemetery.  En route, he asked that another officer respond as well.

            When Kleber arrived at the cemetery, he shined a spotlight on the two white males who appeared to be looking for something in the cemetery.  The one later identified as Matthew Franzen carried a flashlight.  Kleber yelled to the men to put their hands up, to get on their knees, and then to lie down on the ground.  They yelled back that they had lost their keys and “don’t beat us up” or something to that effect.

            Kleber (1) observed an unoccupied red Volvo in the vicinity of the cemetery; and (2) obtained the registration indicating the car was in Franzen’s name; (3) Kleber then approached the men, who were on the ground, as he had instructed, and (4)  handcuffed one of the men, later identified as Scott Haswell, and then the other, Franzen.  Kleber testified that he handcuffed the men because it was late at night, he was alone, and he needed to control the situation.  Kleber believed the cemetery closed at 10:00 p.m. and knew the men were in the cemetery after closing time.

            By the time Officer Lessard arrived to assist, Kleber was on the street with the two men who were separated and still handcuffed.  When Lessard arrived, Kleber uncuffed them.  After speaking with Franzen, Kleber arrested him for driving while intoxicated.

            The district court filed its order sustaining revocation of Franzen’s driver’s license on November 26, 2001. 


            When this court reviews a stop based on given facts, the test is not whether the district court decision is clearly erroneous, but whether, as a matter of law, the basis for the stop was adequate.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  “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 district court sustained the revocation of Franzen’s license because it concluded that handcuffing appellant was a reasonable precaution within the scope of an investigative detention and the standard for probable cause to arrest was “more than sufficiently satisfied.”   We agree.

            Franzen concedes that the officer had probable cause to arrest him for driving while intoxicated, but not until after the officer spoke with him on the street.  He contends, however, that the arrest occurred at the time he was handcuffed, when the officer did not have probable cause to arrest him.  The state argues that an investigative detention occurred when Franzen was handcuffed, but he was not arrested until the officer had probable cause to believe Franzen was driving while under the influence of alcohol.

            A limited investigative detention of an individual is justified if the officer can articulate 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).  The officer’s assessment must be based on “all the circumstances,” and the officer may draw inferences and deductions that might elude an untrained person.  Id. at 418, 101 S. Ct. at 695.

            An investigative detention may be transformed into an arrest when “a reasonable person would have concluded, under the circumstances, that he was under arrest and not free to go.”  State v. Beckman, 354 N.W.2d 432, 436 (Minn. 1984).  The length of the intrusion can distinguish the permissible investigative stop from the arrest.  State v. Nading, 320 N.W.2d 82, 84 (1982) (citation omitted); see State v. Moffatt, 450 N.W.2d 116, 120 (Minn. 1990) (stating that one can be “not free to leave” during a temporary detention); see also United States v. Lego, 855 F.2d 542, 544 (8th Cir. 1988) (stating distinction between stop and arrest is “one of degree”).  “[B]riefly handcuffing a suspect while the police sort out the scene of an investigation does not per se transform an investigatory detention into an arrest.”  State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999) (handcuffs removed once it was determined suspects were not armed); cf. State v. Carver, 577 N.W.2d 245, 248 (Minn. App. 1998) (handcuffing speeding motorcyclist constituted arrest) (citing State v. Blacksten, 507 N.W.2d 842, 847 (Minn. 1993) (ordering suspect to ground at gunpoint, handcuffing, and placing in squad car is arrest)), and State v. Nading, 320 N.W.2d 82, 84 (Minn. 1982) (ordering suspect to ground is not arrest). 

            The record reflects circumstances justifying Kleber’s detention of the two men briefly for investigation.  As the dispatch call indicated, two suspicious men were in a cemetery at 4:00 a.m.  Because Kleber was alone and it was late at night, such a temporary detention was a reasonable precaution until the officer could better assess the situation or until assistance arrived.

            The length and manner of the detention were reasonable.  Under the facts of the case, the handcuffing was justified to allow the officer to gain control of the situation.  There is no evidence that the handcuffing was unnecessarily prolonged.  As soon as Kleber was satisfied that he controlled the situation, he removed the handcuffs, preserving the temporary character of the detention.  The trial court correctly concluded that the investigative seizure was justified and that the arrest was based on probable cause.