This opinion will be unpublished and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
Natalie Marie McCarty, petitioner,
Commissioner of Public Safety,
Rice County District Court
File Nos. T2-03-4617; C5-03-1209
Jeffrey S. Bilcik, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On June 14, 2003, at approximately 2:25 a.m., Northfield Police Officer Richard Bailey was investigating a report of vandalism that occurred at the Archer House, a hotel and restaurant located near the Carleton College campus. Officer Bailey received radio information that the suspects were in a dark colored vehicle and had left the area within the last ten minutes. Officer Bailey decided to check the Carleton campus because students had been involved in vandalism and pranks in the past. While checking a campus parking lot, Officer Bailey noticed a dark colored car in the back of the lot with its headlights on and three or more people in the vehicle. He parked his car approximately twenty feet from the vehicle without activating any emergency lights. As Officer Bailey approached the vehicle, he heard the engine running and observed a passenger leave the vehicle and walk to the trunk area. Officer Bailey was standing about four feet from the passenger’s side of the vehicle when he asked the passenger if they had just come from the Archer House. The passenger responded, “no.”
Officer Bailey then heard a glass bottle hit and roll on the ground as the vehicle’s driver, appellant Natalie McCarty, exited the vehicle, approached him, and asked him what he needed. Officer Bailey immediately smelled a strong odor of alcohol on McCarty’s breath, and noticed her slurred speech, her bloodshot and watery eyes, and her unsteady balance. Officer Bailey asked McCarty where she had come from, if she was driving, and if she had been drinking. McCarty stated that she had been at a friend’s house, that she was the owner of the vehicle and had been driving, and that she had been drinking beer. McCarty identified herself with an Illinois driver’s license.
McCarty agreed to submit to sobriety testing and the results revealed a .201 alcohol concentration. McCarty was issued a citation and arrested for driving while impaired (DWI) in violation of Minn. Stat. §§ 169A.20, subd. 1(1), (5) (2002). She asks that this court rescind the revocation of her driving privileges.
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). Because the facts in this case are not significantly in dispute, the appellate court performs a de novo review to determine, as a matter of law, whether the officer’s actions constituted a seizure, and if so, whether the seizure had an adequate factual basis. State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).
McCarty argues that the district court erred in determining that Officer Bailey did not stop or otherwise temporarily seize her car. She argues that she was unlawfully seized when Officer Bailey, in uniform, approached her car to begin questioning about a vandalism incident. She further argues that being asked specific questions relating to vandalism was clearly a show of authority and would neither be considered an ordinary conversation between two private citizens nor indicate to a reasonable person that they were free to leave.
The Fourth Amendment of the United States Constitution and Article I, Section 10 of the Minnesota Constitution prohibit unreasonable searches or seizures of a person. Not all encounters between the police and citizens, however, constitute seizures. In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).
Even without suspicion of illegal activity, an officer may simply approach and talk to a person standing in a public place or to a driver in an already stopped vehicle to inquire about the welfare of the occupants and their physical condition. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (no temporary seizure of vehicle when officers approached motorist parked in closed service station with his lights off); McKenzie, 392 N.W.2d at 347 (no seizure when police approach the only car in lot with people inside to ask why they were parked there, and subsequent seizure of evidence from car, resulting from officer's plain view observation of interior of car, was constitutional). However, a seizure may occur when an officer exhibits some show of force or authority sufficient in view of all the circumstances surrounding the incident, to make a reasonable person believe that she was neither free to disregard the police questions nor free to terminate the encounter. State v. Pfannenstein, 525 N.W.2d 587, 588 (Minn. App. 1994), review denied (Minn. Mar. 14, 1995). The reasonable person standard is an objective standard that ensures that constitutional protection does not vary with a particular person's subjective state of mind. State v. Cripps, 533 N.W.2d 388-91 (Minn. 1995).
In State v. Pfannenstein, this court adopted the United States Supreme Court’s definition of seizure:
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
525 N.W.2d at 587 (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 1870-77 (1980)). Absent evidence indicating a showing of authority, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. Id. at 588.
In view of the totality of the circumstances, a seizure did not occur when Officer Bailey parked 20 feet away, did not activate his emergency lights, and then approached McCarty’s parked car and spoke to a passenger who had already exited the car. Both the passenger and McCarty voluntarily exited the car absent any instruction to do so. Approaching and asking the passenger if they had just come from the Archer House did not amount to a showing of authority or coerciveness sufficient to make a reasonable person believe that she was neither free to disregard the police questions nor free to terminate the encounter.
Reasonable Articulable Suspicion
The district court’s determination of reasonable suspicion as it relates to limited investigatory stops conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), is reviewed de novo. State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003). The United States Supreme Court has held that a police officer can lawfully make an investigative stop, 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, 184-85 (Minn. 1997) (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1880). The officer's determination must be based on the totality of circumstances including the officer's personal 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). 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, 392 U.S. at 27, 88 S. Ct. at 1883.
McCarty argues that Officer Bailey did not have a particular and objective basis to believe that an occupant of her vehicle had engaged in any vandalism or other criminal activity to warrant being stopped. But, as we stated earlier, no investigatory stop occurred when Officer Bailey approached McCarty’s parked vehicle. The seizure occurred after Officer Bailey noticed evidence of McCarty’s intoxication once she was already outside the car.
This court has held that the odor of alcohol, watery or bloodshot eyes, and slurred speech are a sufficient basis for a seizure. See Crawford v. Comm’r of Pub. Safety, 441 N.W.2d 837, 839 (Minn. App. 1989); LaBeau v. Comm’r of Pub. Safety, 412 N.W.2d 777, 779-80 (Minn. App. 1987). Based on the glass bottle hitting the ground as McCarty voluntarily exited the vehicle from the driver’s door, the odor of alcohol, her slurred speech, her watery bloodshot eyes and other indicia of intoxication, Officer Bailey had a reasonable and articulable suspicion that McCarty had been driving while intoxicated. Because he did not ask any questions or further investigate until detecting indicia of intoxication, the seizure was constitutional.
McCarty argues that the commissioner failed to meet his burden of proof to establish that the seizure was lawful because the events were not recorded on Officer Bailey’s squad car video camera until halfway through the field sobriety testing. The only legal authority McCarty cites to support her argument is King v. Comm’r of Pub. Safety, 366 N.W.2d 613, 615 (Minn. App. 1985). It is true that because proceedings addressing revocation of driving privileges under the implied consent law are civil in nature, the state's burden is a preponderance of the evidence. Id. But, McCarty fails to cite any legal authority extending the requirement that police create video or audio recordings when conducting custodial interrogations of criminal suspects to initial encounters with citizens or criminal suspects in order to prove the lawfulness of a seizure by a preponderance of the evidence. See Umphlett v. Comm’r of Pub. Safety, 533 N.W.2d 636, 639-640 (Minn. App. 1995) (refusing to require recording of Implied Consent Advisory form to DWI suspect) (citing State v. Scales, 518 N.W.2d 587, 588 (Minn. 1994)), review denied (Minn. Aug. 30, 1995).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.