This opinion will be unpublished and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

C8-03-234

 

Robert Parker Hinnant, petitioner,

Respondent,

 

vs.

 

Commissioner of Public Safety,

Appellant.

 

Filed August 19, 2003

Reversed

Kalitowski, Judge

Dissenting, Randall, Judge

 

Hennepin County District Court

File No. IC481588

 

Peter J. Timmons, 2000 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent)

 

Mike Hatch, Attorney General, Francis Green III, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for appellant)

 

            Considered and decided by Schumacher, Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Commissioner of Public Safety challenges the district court’s rescission of the revocation of respondent’s driving privileges.  Because the police officer had reasonable suspicion to seize respondent who was in physical control of a motor vehicle while under the influence of alcohol, we reverse.

D E C I S I O N

I.

            Whether an investigatory stop or seizure is lawful is a mixed question of law and fact.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732-33 (Minn. App. 1985).  This court performs a de novo review of whether the officer’s actions constituted a seizure, and if so, whether the seizure had an adequate factual basis.  See State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).

The district court found that there was “no basis for the seizure” of respondent because there was “no probable cause for the stop in the first instance.”  First, we note that there is no “stop” involved in this case.  The law differentiates between the stop of a moving vehicle and the approach of an already stopped vehicle for Fourth Amendment purposes.  State v. McKenzie, 392 N.W.2d 345, 346 (Minn. App. 1986).  And here, the law is clear that the police officer did not seize respondent when he first approached the car and asked respondent to lower the window.  A police officer may, with no suspicion of illegal activity, approach a parked vehicle to inquire about the welfare of the occupants.  See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984).  Thus, the seizure did not occur until the officer asked respondent to exit the vehicle.

Next, we address whether the officer, at the time of the seizure, had reasonable suspicion to support it.  See In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993) (holding that to justify seizure, “the police must be able to articulate reasonable suspicion”).  The officer asked respondent to exit the vehicle based on the following observations:  (1) respondent was sleeping behind the wheel of a vehicle parked in an airport parking lot at 1:20 in the morning; (2) the officer smelled the odor of consumed alcohol emanating from the vehicle; and (3) respondent admitted that he had had two drinks.  These facts support an investigatory seizure and a demand by the officer that respondent perform field sobriety tests.  We therefore conclude the district court erred in determining that the officer did not have reasonable suspicion for the seizure.

II.

To properly invoke the implied-consent law, a police officer must have probable cause to believe a person is driving, operating, or in physical control of a motor vehicle in violation of Minn. Stat. § 169A.20 (2002).  Minn. Stat. § 169A.51, subd. 1(b) (2002).  A person is in physical control of a vehicle if he “has the means to initiate any movement of [the] vehicle” and “is in close proximity to the operating controls of the vehicle.”  State v. Hendricks, 586 N.W.2d 413, 415 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999) (quotations omitted).  “Physical control does not depend solely on the location of the keys.”  Ledin v. Comm’r of Pub. Safety, 393 N.W.2d 433, 435 (Minn. App. 1986).  Rather, probable cause is based on whether the totality of the circumstances supports the inference that a person had physical control of the vehicle.  Id.  

Here, the district court found that there was “no probable cause to believe [respondent] was driving the vehicle or how long it had been there.”  But this is not the correct standard.  The officer did not need probable cause to believe that respondent had been driving; he only needed probable cause to believe that respondent was in physical control of the vehicle.  Minn. Stat. § 169A.51, subd. 1(b).  The record indicates that respondent was seated in the driver’s seat of a parked vehicle and that when the officer approached, respondent produced the keys from somewhere near him, placed them in the vehicle’s ignition, and turned the engine to the accessory position.  Later, respondent admitted to the officer that he had driven the car to the airport location.  Thus respondent was in physical control of the vehicle.  And because respondent was in physical control of a motor vehicle after having admittedly consumed alcohol, the police officer was justified in invoking the implied consent laws. 

Because respondent refused an alcohol concentration test, the revocation of his driving privileges was proper.  Minn. Stat. § 169A.52, subd. 3 (2002).  We conclude that the district court erred in rescinding the revocation. We therefore reverse, and the revocation is reinstated.

Reversed.



 

 

 

RANDALL, Judge (dissenting).

            I respectfully dissent.  I agree with the majority in its “stop” analysis in paragraph 3.  The police officer could walk up to a parked vehicle and take a look from the outside.  I also agree that the seizure did not occur until the officer asked respondent to exit the vehicle.  But, concededly, at this point, appellant was seized.  Thus, as the majority concludes, the officer needed probable cause for the seizure.  That is where I differ with the majority.  Respondent was at rest, so there is no erratic driving conduct to buttress the “totality of the circumstances” to show probable cause that the driver was impaired while in physical control of a motor vehicle.

            The officer said he “smelled” the odor of alcohol coming from respondent.  The “odor” of a beverage, which someone assumes contains alcohol,[1] has little to do with showing “impairment,” i.e., driving drunk.  All that remains is simply that respondent admitted that he consumed two drinks.  With nothing more, I cannot conclude the officer had probable cause to believe that respondent was impaired while in physical control of a vehicle. 

The district court in its handwritten notes stated:

(1)  no probable cause to believe the Petitioner was

driving the vehicle or how long it had been            There.

(2)       no basis for the seizure of the individual based on the fact that there was no probable cause for the stop in the first instance.

 

            While I agree that we cannot sustain the district court’s “stop” analysis, I would affirm the district court’s ultimate conclusion on this record.  When drivers appeal a finding of a district court’s revocation of their driving privileges, we routinely defer to the district court on its judgment and weight to be given the evidence.  I suggest that, here, the district court is entitled to the same deference when it weighed the state’s evidence as something less than needed to establish probable cause to seize a citizen for being in physical control of a vehicle while impaired.  The district court can be sustained by reading into the order that there was no basis for the seizure of appellant because there was no probable cause that he was impaired while in physical control of a vehicle.

            I dissent and would have affirmed the district court.

 



[Footnote from dissenting opinion]

[1]  Pure alcohol is virtually odorless.  What people smell is the odor of the non-alcoholic ingredients in beer, wine, and whiskey, which do have a distinctive odor and are commonly associated with alcohol.  I can only note that the odor emanating from non-alcoholic beer and non-alcoholic wine is close enough to the real stuff so that I would need a truly qualified expert to tell me he can, by a sniff, differentiate Sharp’s and O’Doul’s from Bud and Miller Lite!