This opinion will be unpublished and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

A03-283

 

 

Brenda Sue Rodell, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed November 25, 2003

Affirmed

Robert H. Schumacher, Judge

 

Ramsey County District Court

File No. C90211583

 

 

Derek A. Patrin, Gerald Miller & Associates, P.A., 210 North Second Street, Suite 101, Minneapolis, MN 55401 (for appellant)

 

Mike Hatch, Attorney General, Jeffrey F. Lebowski, Lisa M. Dahlquist, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2040 (for respondent)

 

 

Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Poritsky, Judge.*


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Respondent Commissioner of Public Safety revoked appellant Brenda Sue Rodell's driver's license under Minn. Stat.  169A.52, subd. 4 (2002), and impounded her license plates under Minn. Stat.  169A.60 (2002). At an implied consent hearing, Rodell challenged the legality of the investigatory stop. On appeal, Rodell challenges the district court's determination that the stop was legal, arguing the stop does not conform to constitutional mandates. We affirm.

FACTS

The facts of this case are not in dispute. At approximately 4 a.m. on a Sunday in late November 2002, Officer Michael Lochen of the New Brighton Police Department was driving on Rice Creek Road. He observed a vehicle at a Super America store parked "lengthwise the wrong way against the parking spaces." The vehicle also blocked a parking space reserved for the physically disabled. Although the store was open 24 hours a day, this was the only vehicle in the parking lot. Lochen "just thought it was suspicious" because the vehicle was not parked in a normal way and the driver's door was right outside the store's exit door. Lochen's initial concern was that somebody was robbing the store.

Lochen testified that he pulled into the lot and parked directly behind Rodell's car. As Lochen pulled up, Rodell left the store and got into her vehicle. Lochen approached Rodell. At this point, Lochen concedes he no longer suspected a robbery was in progress, but he still wanted to speak to her about the way she was parked. As Lochen approached Rodell, he knocked on the rear driver's side window. Rodell began to drive away. Lochen yelled at her to stop the vehicle, which Rodell did approximately 50 feet away. After talking to Rodell, Lochen arrested her for driving under the influence of alcohol.

The commissioner revoked Rodell's driving privileges under Minn. Stat.  169A.52, subd. 4(a) (2002) and impounded Rodell's license plate because this was her second drug or alcohol related violation in ten years and for driving with an alcohol concentration greater than 0.20. In March 2003, Rodell sought review of commissioner's actions at an implied consent hearing under Minn. Stat.  169A.53, subd. 2 (2002). The only issue presented was whether Lochen's stop was legal. The district court found the stop was permissible and affirmed the commissioner's revocation.

D E C I S I O N

The legality of a limited investigatory search is a question of law reviewed de novo. State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003). When the facts are not in dispute, an appellate court should analyze the officer's testimony and "determine whether, as a matter of law, his observations provided an adequate basis for the stop." Id.

Rodell argues Lochen's investigatory stop was unlawful because at the time of the stop he no longer had a reasonable suspicion that a robbery was in progress and being illegally parked is not a proper basis for an investigatory stop. The Fourth Amendment to the United States Constitution, and article I of the Minnesota Constitution, prohibit unreasonable searches and seizures by the government. U.S. Const. amend. IV; Minn. Const. art. I, 10. A police officer can lawfully make a limited investigative stop or seizure of an individual if the officer is "able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion."  State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  This type of seizure is permissible when, based upon the totality of the circumstances, the detaining officer has 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).

Rodell argues the supreme court has already addressed whether a parking violation can be a particularized and objective basis for suspecting the particular person stopped of criminal activity in State v. Holmes, 569 N.W.2d 181 (Minn. 1997). We disagree with Rodell that the supreme court's decision in Holmes is dispositive of the present case. In Holmes, a police officer seized the defendant after issuing the defendant a citation for parking in a private, contract-only parking lot without the proper authorization to park in such a lot. Id.at 182-83. The supreme court concluded parking violations cannot be the basis of an investigatory stop because parking violations are not as serious as traffic violations, parking violations are typically enforced simply by applying the citation to the offending vehicle, and the officer in that case had already enforced the violation. Id. at 185-86. But the supreme court in Holmes explicitly allows an officer make a stop "if a person is attempting to drive off with an illegally parked car before the officer can issue the ticket." Id. at 185. And an officer's ultimate decision whether or not to issue the citation is irrelevant to the reasonableness of a stop. See, e.g., Whren v. United States, 517 U.S. 806, 809, 116 S. Ct. 1769, 1772 (concluding stop was reasonable where officers approached vehicle "to give the driver a warning concerning traffic violations"); Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (stating, in summarizing the applicable standard for an investigatory stop, "An actual violation of the Vehicle and Traffic Law need not be detectable.").

It is uncontested Rodell illegally blocked a parking space reserved for the physically disabled. When Lochen approached Rodell's vehicle he did so intending to question her about her illegal parking. When Rodell began leaving the scene before Lochen could determine if a citation should be issued, he stopped her. According to the explicit language of Holmes,Lochen was justified in making this stop so that he could issue a citation for Rodell's parking violation. Therefore, we conclude, as a matter of law, Lochen had an adequate basis to stop Rodell.

We also note, unlike most parking violations, obstructing a handicap-parking space is a misdemeanor. Minn. Stat. 169.346, subd. 3 (2002). And we find no reason to conclude commission of a misdemeanor offense does not provide a police officer a particularized and objective basis for suspecting the particular person stopped of criminal activity, whether or not the misdemeanor arises out of a parking violation. See State v. Pike, 551 N.W.2d 919, 922 (Minn. 1996) (holding police officer's suspicion that a person is committing the misdemeanor offense of driving with a revoked license "is enough to form the basis of a 'reasonable suspicion of criminal activity'").

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.