This opinion will be unpublished and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

C6-03-149

 

State of Minnesota,

Respondent,

 

vs.

 

Dean Aaron Anderson,

Appellant.

 

Filed February 3, 2004

Affirmed in part, Reversed, and Remanded

Kalitowski, Judge

 

Ramsey County District Court

File No. T702623197

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Kari L. Quinn, Caroline Bell Beckman, Jensen, Bell, Converse & Erickson, 1500 Wells Fargo Place, 30 East Seventh Street, St. Paul, MN 55101 (for respondent)

 

Dean Aaron Anderson, 1769 North Lexington Avenue, #102, Roseville, MN 55113 (pro se appellant)

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Dean Anderson challenges his conviction of failure to yield to an emergency vehicle in violation of Minn. Stat. § 169.20, subd. 5 (2002), claiming that (1) the statute is not applicable because the police officer was not responding to an emergency when he stopped appellant; (2) the officer unconstitutionally seized appellant because he did not articulate a reasonable suspicion of criminal activity prior to stopping appellant; and (3) he was denied his constitutional right to a fair trial.  We affirm in part, but because we conclude that the police officer needed to articulate a reasonable suspicion of criminal activity prior to stopping appellant, we reverse and remand.

D E C I S I O N

I.

            Appellant argues that he should not have been convicted of failure to yield to an emergency vehicle because the police officer was not responding to an emergency when he stopped appellant, and therefore the officer was not driving an “authorized emergency vehicle” as contemplated by Minn. Stat. § 169.20, subd. 5.  We disagree.  Under Minnesota law, an “authorized emergency vehicle” is defined to include a publicly owned police vehicle that is equipped and identified according to law.  Minn. Stat. § 169.01, subd. 5 (2002); see Cummins v. Klenk, 474 N.W.2d 443, 445 (Minn. App. 1991) (finding properly equipped and identified county sheriff’s vehicle was an authorized emergency vehicle).  The statute does not require that a police vehicle be responding to an emergency in order to be deemed an authorized emergency vehicle.  It is undisputed that the officer was driving a properly equipped and identified squad car, and therefore the district did not err in concluding that the officer’s squad car constituted an “authorized emergency vehicle” within the meaning of the statute.

II.

Appellant also argues that he was unconstitutionally seized when the officer stopped him.  The Fourth Amendment of the United States Constitution and Article I, Section 10, of the Minnesota Constitution prohibit unreasonable searches and seizures.  Not all encounters between the police and a citizen constitute a seizure.  In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).  Instead, seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (citing Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).  The key is whether police officers convey a message that compliance with their requests is required.  Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2388 (1991). 

A seizure can occur when an officer activates the squad car’s emergency lights.  See State v. Bergerson, 659 N.W.2d 791, 795 (Minn. App. 2003) (concluding seizure occurred where squad car directly followed appellant’s vehicle and its red emergency lights were activated); State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988) (concluding seizure occurred where officer boxed in appellant’s vehicle, activated red flashing lights, and honked horn).  But see State v. Hanson, 504 N.W.2d 219, 219-20 (Minn. 1993) (concluding no seizure occurred where officer, suspecting no criminal activity, activated red flashing lights upon approaching an already-stopped vehicle).  Because the officer activated his emergency lights in an attempt to stop appellant’s vehicle, we conclude that the officer seized appellant.

But even if an individual is seized, generally the seizure is illegal only if it was unreasonable.  A brief seizure of a person for investigatory purposes is not unreasonable if an officer has a “particular and objective basis for suspecting the particular person [seized] 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 officer may justify his decision to seize a person based on the totality of the circumstances and “may draw inferences and deductions that might elude an untrained person.”  Cripps, 533 N.W.2d at 391.  But a mere hunch, absent other objectively reasonable, articulable facts, will not justify a seizure.  State v. Harris, 590 N.W.2d 90, 99 (Minn. 1999). 

Here, the district court determined that an officer need not articulate a reasonable suspicion of criminal activity in order to stop a driver for the purpose of issuing a ticket for failure to yield to an emergency vehicle.  We disagree.  Under Minn. Stat. § 169.20, subd. 5a (2002), an officer has probable cause to arrest or issue a citation for failure to yield to an emergency vehicle based on his or her own observations or a report based on another’s observations; the officer need not have an independent basis for arresting or issuing a citation to the violator.  But here, the officer essentially created the “emergency” by attempting to stop appellant.  Therefore, on these facts we conclude that the officer was required to articulate a reasonable suspicion of criminal activity and we remand for the district court to make findings on whether the officer articulated a reasonable suspicion of criminal activity prior to initiating the stop.

III.

Appellant argues that the district court denied him his constitutional right to a fair trial because it impeded his right to present a defense by:  (1) excluding testimony of a police officer that appellant intended to call as an expert witness; (2) refusing to find the police officer in contempt of court for failing to abide by appellant’s subpoena and appear in court; and (3) failing to grant appellant a continuance because of the officer’s absence.  We disagree.

The admission of expert testimony is within the broad discretion accorded a district court, and “rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the [district] court clearly abused its discretion.”  State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (quotation omitted).  Even when a defendant alleges that his inability to present a defense violates his constitutional rights, evidentiary questions are reviewed for abuse of discretion.  State v. Henderson, 620 N.W.2d 688, 698 (Minn. 2001).  Generally, expert testimony is admissible if:  (1) it assists the trier of fact; (2) it has a reasonable basis; (3) it is relevant; and (4) its probative value outweighs its potential for unfair prejudice.  State v. Jensen, 482 N.W.2d 238, 239 (Minn. App. 1992), review denied (Minn. May 15, 1992). 

Appellant argues that the officer’s testimony was relevant because the officer was an expert on police procedure for emergency vehicle and traffic stops.  We disagree.    Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  While a criminal defendant has a constitutional right to present a defense, this right must be balanced against interests served by imposing relevancy requirements.  State v. Buchanan, 431 N.W.2d 542, 550 (Minn. 1988). 

Here, appellant claimed that he had seen the officer on a television news program, and in the course of the news segment, the officer had answered a question that “specifically” related to appellant’s situation.  But the sole issue before the district court was whether appellant failed to yield to an emergency vehicle in violation of Minn. Stat. § 169.20, subd. 5.  The district court ruled that the officer’s anticipated testimony was not relevant to determine whether appellant committed the alleged violation and indicated that if objected to, it would not have allowed the testimony even if the officer had appeared.  We cannot say that the district court abused its broad discretion in determining the officer’s anticipated testimony was irrelevant. 

Appellant also argues that the district court erred in not finding the officer in contempt of court for failing to obey the subpoena.  We disagree.  This court will not reverse a district court’s decision to quash or enforce a subpoena absent a clear abuse of discretion.  Phillippe v. Comm’r of Pub. Safety, 374 N.W.2d 293, 297 (Minn. App. 1985).  Because the district court did not abuse its discretion in determining the officer’s anticipated testimony was irrelevant, we conclude that the district court did not abuse its discretion in not finding the officer in contempt.

Finally, appellant argues that the district court erred in denying his motion for a continuance to secure the appearance of the police officer at a future hearing date.  A ruling on a request for a continuance is within the district court’s discretion, and a conviction will not be reversed for denial of a motion for a continuance unless the denial is a clear abuse of discretion.  State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987).  The reviewing court must examine the circumstances at the time the motion for continuance was made to determine whether the district court’s decision prejudiced the defendant by materially affecting the outcome of the trial.  State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980); State v. Stroud, 459 N.W.2d 332, 335 (Minn. App. 1990).  Because the district court found that the officer’s anticipated testimony was irrelevant and determined that it would not have admitted his testimony even if he had appeared, we conclude that it was not an abuse of discretion to deny appellant’s motion for a continuance.

Affirmed in part, reversed, and remanded.