This opinion will be unpublished and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

A03-1121

 

Mathew Collin Jones, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed March 23, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Dakota County District Court

File No. C1-03-013383

 

 

Justin H. Silcox, McCloud & Boedigheimer, P.A., 5001 West 80th Street, Suite 201, Bloomington, MN 55437 (for appellant)

 

Mike Hatch, Attorney General, Melissa J. Eberhart, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Appellant challenges the district court’s decision sustaining the revocation of his driver’s license, claiming that the district court erred in finding that the arresting officer had a reasonable and articulable suspicion of criminal activity warranting an investigatory seizure.

FACTS

            On March 20, 2003, at approximately 10:30 p.m., Apple Valley police officer Tara Bytheway was on routine patrol when she noticed a vehicle, with its parking lights turned on, parked on a private road leading to several rows of townhouses.  The officer thought it strange that the vehicle was parked in that location.  She testified that, although there was no sign indicating that the roadway was private or that there was no trespassing, she believed that the vehicle was parked in an unusual location and could possibly have needed assistance.  She was also concerned about the possibility of criminal activity, because, from where the vehicle was parked, the occupant had the opportunity to see into some of the townhouses.  In the past, the officer had responded to that location to investigate “several car break-ins and things of that nature.”  Therefore, based on her familiarity with the townhouse complex, her knowledge of prior criminal activity in the general area, and the unusual parking location of appellant’s vehicle, she believed that further investigation was warranted.

            The officer then pulled into the private road and turned on the squad’s spotlight, at which time she could see the vehicle’s occupant “shuffling, doing some type of movement.”  The officer parked behind appellant’s vehicle, but not in such a way as to block appellant’s vehicle from leaving.  Appellant argues that the officer’s written report did not state that she approached the vehicle because of any suspected criminal activity. 

The officer got out of her squad car and, when appellant got out of his vehicle, the officer instructed him to get back inside of his vehicle, as a routine matter for the officer’s safety.  The officer testified that, when she advised appellant to return to his vehicle, he was not at that point free to start up his car and drive away.  When the officer approached appellant and asked for his license and identification, she could see that he had a large sum of money that he was counting, was unable to articulate what he was doing, had bloodshot, watery eyes, smelled of alcohol, and appeared intoxicated.  Appellant informed the officer that he had had five beers and drank the last beer approximately one hour earlier.  Appellant could not otherwise coherently explain to the officer what he was doing there, although he lived nearby.  At that point, the officer suspected that appellant was intoxicated.

D E C I S I O N

 

Appellant argues that the district court erred in determining that the arresting officer possessed a reasonable articulable suspicion of criminal activity to warrant the investigatory seizure. This court reviews whether an investigatory stop or seizure is lawful as a mixed question of law and fact.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

In this case, there was no initial vehicle stop.  For Fourth Amendment purposes, the law distinguishes between the stop of a moving vehicle and the approach of an already stopped vehicle.  State v. McKenzie, 392 N.W.2d 345, 346-47 (Minn. App. 1986).  Even without suspicion of illegal activity, a police officer has a right to approach a parked vehicle to inquire about the welfare of the occupants.  State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980).  However, when an officer exhibits some show of force or authority, the encounter between the officer and the vehicle occupant is likely a seizure.  State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990).  An investigative seizure is “commonly referred to as an investigative stop” and need only meet the same standards as a stop to be valid.  State v. Holmes, 569 N.W.2d 181, 184-85 (Minn. 1997).  Because an investigatory seizure is less intrusive than an arrest, the objective, reasonable-basis standard supporting an articulable suspicion is less than that of probable cause to arrest.  Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). 

A temporary seizure for investigatory purposes is justified if the police officer has “a ‘particularized and objective basis for suspecting the particular persons stopped of criminal activity.’”  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).  The officer’s suspicion of criminal activity must be based on more than a hunch.  State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989).  But the officer is entitled to draw inferences and deductions that might escape an untrained person.  Berge, 374 N.W.2d at 732.  The officer’s determination must be based on the totality of circumstances including “the officer’s general observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.”  Kotewa v. Comm’r of Pub. Safety, 409 N.W.2d 41, 43 (Minn. App. 1987).

In similar cases, this court has upheld the validity of the investigative stop.  For example, in Cobb v. Comm’r of Pub. Safety, 410 N.W.2d 902 (Minn. App. 1987), this court upheld a motorist’s license revocation when an officer parked his squad car behind a legally parked vehicle with its motor running, approached the driver’s side of the vehicle, and asked the driver for identification.  This court determined that the officer had a reasonable and articulable basis for requesting driver identification because the officer had received information that a private citizen had reported a suspicious vehicle in that neighborhood and described the vehicle; the officer testified that in that neighborhood vehicles generally parked in driveways; and the officer had prior knowledge that burglaries had been committed in that neighborhood within the previous month.  Id. at 903.

In Thomeczek v. Comm’r of Pub. Safety, 364 N.W.2d 471, 472 (Minn. App. 1985), this court upheld a motorist’s license revocation when an officer approached a vehicle legally parked at night, with its lights on and with its motor running, in a residential development under construction where some homes were occupied while others were unoccupied or being built.  Id.  The officer was familiar with that area and parked his squad car behind the vehicle.  Id.  As the officer approached the vehicle, it started to move forward slowly and the officer signaled with his flashlight for the driver to stop.  Id.  The officer testified that he would have pursued the vehicle if the driver had not complied with his signal.  Id.  On those facts, this court determined that the officer had a sufficient factual basis to suspect the motorist was involved in unlawful activity.  Id. 

Here, the facts support the district court’s determination that the officer had reasonable and articulable suspicion to proceed with an investigative seizure.  Before the officer parked her squad behind appellant’s vehicle, she knew that it was out of the ordinary to find a vehicle parked where it was; it was late at night; the position of the vehicle allowed its occupant to see into some townhouses; and there had been break-in activity in the area previously.  At this point the officer had a reason to suspect the possibility of criminal activity and also the possibility that the vehicle’s occupant needed assistance.  After the officer pulled into the private road and turned on the squad’s spotlight, she could see appellant in his vehicle “shuffling, doing some type of movement.”  The officer testified that, although she wanted to determine whether appellant was in need of any assistance, she also wanted to eliminate the possibility that appellant was involved in criminal activity.  Therefore, when the officer instructed appellant to return to his vehicle, the officer was performing an investigative stop (the officer testified that at that point appellant was no longer free to leave).  Based on the officer’s familiarity with the townhouse complex and her experience with the general area, her investigative stop was based on articulable and reasonable suspicion of criminal activity.    

            Affirmed.