This opinion will be unpublished and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
David Gregory Hayes,
Commissioner of Public Safety,
Filed April 15, 2003
Scott County District Court
File No. 200209288
Douglas V. Hazelton, 817 Interchange Tower, 600 South Highway 169, Minneapolis, MN 55426 (for appellant)
Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2122 (for respondent)
Considered and decided by Minge, Presiding Judge, Huspeni, Judge,* and Forsberg, Judge.
Appellant challenges the decision by the district court sustaining the revocation of his driver’s license. He contends that sitting in his vehicle in a parking lot outside of normal business hours did not provide the officer with a reasonable and articulable basis for conducting an investigatory stop and seizure. Because the officer relied on his training and experience in assessing the significance of the presence of an unfamiliar vehicle, with its engine running, in a business parking lot after business hours, we conclude that the officer had a reasonable and articulable basis for an investigatory stop and seizure, and we affirm.
Officer Michael Bjork of the Savage Police Department was on routine patrol around 12:19 a.m. on April 29, 2002, when he noticed a vehicle with its engine running parked in a business mall parking lot. Officer Bjork knew that a brown Ford pickup belonging to one of the businesses was usually parked after hours in the lot, but this car was a silver Saab that he did not recognize. No businesses in the mall were open at that hour; most of the businesses had closed by 7:00 p.m. The vehicle was in plain view of the street, but he could not tell whether it was occupied.
Officer Bjork shut off the lights in his squad car and approached the vehicle in a “darked-out” state. He testified that he was concerned because it was unusual for a vehicle to be in that lot at that time of night, and he considered it part of his job to maintain the safety of residents along the adjacent street. With the exception of the car’s presence in the parking lot, however, he saw no indication of any criminal activity.
As Officer Bjork got within about 15-20 feet of the Saab, he saw its brake lights and backup lights come on. The car then backed up fairly quickly to within eight to ten feet of his squad car. Officer Bjork testified that there were two entrances to the parking lot and that he was parked directly behind the Saab at an angle. When he observed the Saab backing up, he believed that it was attempting to leave, and that it was his job to investigate why it was in the parking lot and if there was a possible burglary. Officer Bjork turned on all of his lights, including his spotlight and his red emergency lights, in order to avoid a collision. At that point Officer Bjork saw the driver looking through his rear window directly at him. The Saab then backed up a few more feet and stopped. The driver, identified by his driver’s license as appellant David Gregory Hayes, spontaneously exited his car and approached the squad car. Officer Bjork detected a strong odor of an alcoholic beverage coming from appellant, who admitted to having nine beers in the last four hours, was unsteady on his feet, and exhibited watery, glassy eyes. This resulted in appellant’s arrest for DWI and license revocation because he violated the implied consent law.
The district court sustained the commissioner’s decision to revoke appellant’s license, and stated that it “assume[d]” there was a stop, and that based on Officer Bjork’s experience that only a brown truck was usually in the parking lot at that hour, he had valid reasons for investigating the occupant of the Saab. The court also impliedly held that the vehicle was not seized, noting that appellant could have backed around the squad car and was not hemmed in. Appellant sought review of the district court order sustaining his driver’s license revocation, and the state filed a notice of review challenging the district court’s “assumption” that a seizure occurred when Officer Bjork turned on his emergency lights.
Reviewing the validity of a stop based on given facts is, for an appellate court, a legal question. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). Similarly, whether a seizure has been effectuated is a question of law that we review de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).
“The fourth amendment applies to seizures of the person, including brief investigatory stops.” State v. Sanger, 420 N.W.2d 241, 242 (Minn. App. 1988). In this case, the district court stated its assumption that there had been a stop of appellant’s vehicle when Officer Bjork parked his squad car and turned on the emergency lights, but implied that no seizure occurred. Appellant, on the other hand, maintains that Officer Bjork had no reasonable, articulable suspicion for investigating the vehicle, and that he effectuated a seizure when he partially blocked the Saab and turned on his emergency lights.
A limited investigatory stop is allowed if police have a reasonable articulable suspicion of a motor vehicle violation or of criminal activity. State v. Duesterhoeft, 311 N.W.2d 866, 867 (Minn. 1981). A brief stop of a person for investigatory purposes is not unlawful if an officer has a “particular and objective basis for suspecting the particular person 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 factual basis required to justify a stop is “minimal,” but the stop must be based on more than mere whim, caprice, or idle curiosity. Marben v. Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980). The officer making a stop must make an assessment based on “all the circumstances” and may “draw inferences and make deductions * * * that might well elude an untrained person.” Cortez, 449 U.S. at 418, 101 S. Ct. at 695.
This court has held that an officer who observed, late in the evening, an occupied vehicle near an area undergoing construction had sufficient specific and articulable facts to warrant an investigatory stop. Thomeczek v. Comm’r of Pub. Safety, 364 N.W.2d 471, 472 (Minn. App. 1985). Similarly, Officer Bjork, who was familiar with the specific parking lot and the businesses nearby, made an assessment based on his training and experience as a police officer, regarding the presence of an unfamiliar vehicle in that lot after normal business hours with its engine running. Based on these circumstances, he was justified in making the inference that some illegal activity could be taking place. Therefore, he had sufficient specific and articulable facts to support an investigatory stop of the vehicle.
We next address the issue of whether a seizure occurred when Officer Bjork parked his squad car so that it partially blocked the Saab and turned on his emergency signals. Under Article I, Section 10 of the Minnesota Constitution, which prohibits unreasonable searches and seizures,
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.
State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). In this case, Officer Bjork testified that after he parked his squad car partially blocking the Saab and turned on his emergency signals, the occupant was not free to go. Under these circumstances, a reasonable person would not believe that he or she was free to terminate the encounter with the police.
The state argues, and the district court noted, that it is not a seizure for an officer simply to walk up and talk to a driver seated in a parked car, even if the vehicle is running. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); State v. Plut, 400 N.W.2d 377, 379 (Minn. App. 1987). But even the partial blockage of a car by a police officer may amount to a seizure if a person, so blocked, would reasonably believe that he or she is not free to leave. Klotz v. Comm’r of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989), review denied (Minn. May 24, 1989). Conduct that may transform an approach into a Fourth Amendment seizure includes the use of flashing red lights or boxing in the parked vehicle. 4 Wayne LaFave, Search and Seizure § 9.3(a), at 107-08 (3d ed. 1996).
Officer Bjork’s actions in approaching the Saab in a “darked out” state and partially blocking it created the possibility that the driver would react by backing up, thus leading the officer to use his emergency lights to control the situation. Even though Officer Bjork may have acted in a defensive manner, his actions created in appellant the impression that he was not free to leave the area. See Sanger, 420 N.W.2d at 242 (holding that police officer effected seizure when car under suspicion started backing up, and officer in squad activated flashing red lights and beeped on horn). In Sanger, we found that even though the officer contended that his show of authority was merely done to prevent an accident, “this argument begs the question because it was he who created the danger and, by this point, had now effected a seizure.” Id. Therefore, we disagree with the district court’s conclusion that Officer Bjork did not effect a seizure in this case.
Although we conclude that a seizure occurred, we do not agree with appellant that the officer lacked reasonable, articulable suspicion. As previously noted, the Saab was parked in a business parking lot with its motor running late at night. These facts, which would lead a reasonable police officer with Officer Bjork’s training and experience to believe that a crime was possibly being committed, justified the ensuing seizure. We therefore hold that the district court did not err in sustaining the revocation of appellant’s driving privileges.
* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.