This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James William Levorson,
Filed December 10, 2002
Reversed and remanded.
Hennepin County District Court
File No. 01078332
Mike Hatch, Attorney General 525 Park Street, Suite 500, St. Paul, MN 55155; and
Wynn Curtiss, Kirsten A. Holseth, Miller, Steiner & Curtiss, 400 Wells Fargo Bank Building, 1011 First Street South, Hopkins, MN 55343 (for respondent)
Douglas T. Kans, 1690 Interchange Tower, 6700 South Highway 169, Minneapolis, MN 55426 (for appellant)
Considered and decided by Hudson, Presiding Judge, Peterson, Judge and Anderson, Judge.
G. BARRY ANDERSON, Judge
Appellant challenges the district court’s denial of his motion to dismiss charges of gross misdemeanor driving while impaired and refusal to submit to chemical testing, arguing that the actions of respondent State of Minnesota constituted an unconstitutional warrantless seizure within the meaning of Article I, Section 10 of the Minnesota Constitution.
Although we conclude a warrantless seizure occurred, an anonymous tip reporting “a suspicious vehicle in [a] parking lot with its engine running” does not provide an adequate basis for reasonable, articulable suspicion that appellant was, had been, or was about to be, engaging in criminal activity. Accordingly, because the warrantless seizure was not justified, we reverse and remand.
On September 9, 2001, Officers Ledbetter and Meuwissen responded to an anonymous call reporting a “suspicious vehicle” in the parking lot of an apartment complex in Hopkins, Minnesota. The record indicates that the only description given to the officers was that of a “suspicious vehicle in the parking lot with its engine running.” No further identifying features of the vehicle, its occupants, or allegations of possible criminal activity, were provided. The officers had no information as to where, in the lot, the car was; how long the vehicle had been there; how long the engine had been running; whether the vehicle was occupied; or why it appeared suspicious. In short, the officers had no description of, or details concerning, the vehicle or possible criminal activity of the occupants.
Upon arriving in the parking lot, the officers saw appellant’s vehicle, legally parked, with its engine running. There is no indication from the record that the officers knew the vehicle was occupied. Ledbetter testified that he and Meuwissen positioned their squad cars behind appellant’s vehicle “so as to block him in. If he tried to leave, he would not be able to do so.” Meuwissen, arriving seconds before Ledbetter, approached the driver’s-side window. Meuwissen noticed a man (appellant) sleeping in the driver’s seat. Meuwissen knocked on the window and ordered appellant to roll the window down. Because appellant appeared unable to comply, one of the officers opened the car door and instructed appellant to step out of the vehicle.
Appellant, after failing several field sobriety tests and refusing to submit to chemical testing, was charged by criminal complaint with gross misdemeanors driving while impaired-second degree, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), 169A.03, subd. 3(1), 169A.26 (2000), and refusal to submit to breath test-second degree, in violation of Minn. Stat. §§ 169A.20, subd. 2, 169A.03, subd. 3(1), 169A.26 (2000).
Appellant filed a motion to suppress evidence seized on the night of his arrest and sought dismissal of all charges asserting that he was illegally seized in violation of the federal and state constitutions. Specifically, appellant argued that the officers did not have reasonable, articulable suspicion that he was engaging in criminal activity.
Appellant’s motion to suppress was denied. Based on stipulated facts and evidence obtained through testimony pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), he was convicted of second degree driving while impaired. This appeal followed.
The inquiry, absent an emergency situation, turns on the nature of the police officers’ conduct. Dokman v. County of Hennepin, 637 N.W.2d 286, 293 (Minn. App. 2001). The question is not whether this person actually believed himself to be seized, but rather, based on the conduct of the police, whether a reasonable person, under the circumstances, would have believed himself not free to leave. E.D.J., 502 N.W.2d at 783. It can be fairly stated that a reasonable person would not feel free to leave when two armed, uniformed police officers intentionally position their marked squad cars so as to impede any such movement.
Appellant was seized within the meaning of article I section 10 of the Minnesota Constitution. Therefore, we affirm the district court’s ruling on this issue.
II. Was the warrantless seizure of appellant supported by an objective, articulable basis?