This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
Dale Petersen, petitioner,
Commissioner of Public Safety,
Dakota County District Court
File No. C20308189
Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)
Mike Hatch, Attorney General, Willow J. Najjar, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
Appellant Randall Dale Petersen’s driver’s license was revoked under the implied-consent law. Appellant filed a petition to rescind the revocation, arguing that the revocation was invalid because he had been illegally seized by a police officer. Following a hearing, the district court concluded that appellant had been lawfully seized by the officer and sustained the revocation. The district court denied appellant’s reconsideration request. This appeal is from the orders sustaining the revocation and denying reconsideration. Respondent Commissioner of Public Safety filed a notice of review seeking review of the district court’s determination that appellant had been subjected to a seizure under the Fourth Amendment. Because we conclude that there was no seizure, we affirm the district court’s order sustaining the revocation of appellant’s driving privileges.
While on routine patrol at 10:26 p.m., Dakota County Deputy Jonathan Napper saw an ATV traveling toward him in the ditch next to Canada Avenue. There was a large drainage ditch in the ATV’s path, and Napper expected the ATV to come out of the ditch to avoid the drainage ditch. After the ATV passed by him, Napper continued to watch it in his mirror and saw that it did not come back onto the roadway. Napper saw the taillight on the ATV make an abrupt jerking motion and then saw it tilt. Believing that the ATV had tipped over, Napper turned his squad car around and went back to see if the ATV rider was injured.
When Napper reached the ATV, it was perpendicular to the direction that it had been traveling, and the rider was standing beside it. Napper parked his squad car so that the headlights illuminated the area around the ATV and turned on his rear flashing lights to alert any cars that might be coming. Napper was dressed in a uniform with a jacket on, and he was armed. Napper called out to appellant and asked him to come up to where Napper was standing. Napper asked appellant if he was okay, and appellant said that he was not injured. During the conversation, Napper detected a moderate odor of alcohol on appellant, and appellant admitted drinking a beer earlier. Napper arrested appellant for operating the ATV under the influence of alcohol. Appellant’s driver’s license was revoked under the implied-consent law, the revocation was sustained by the district court, and this appeal followed.
Appellant argues that an illegal seizure occurred when Napper called out to appellant and asked him to come up to where Napper was standing and that all evidence that Napper obtained after the seizure should have been excluded.
“In reviewing [district] court rulings on fourth amendment issues, this court accepts the [district] court’s findings of fact, unless clearly erroneous, but independently applies fourth amendment case law to the facts so found.” State v. Saffeels, 484 N.W.2d 429, 430 (Minn. App. 1992), review denied (Minn. Jun. 1, 1992). “Where, as here, the facts are not significantly in dispute, this court’s standard of review is to determine as a matter of law whether the officer’s actions amounted to a seizure and if the officer had an adequate basis for the seizure.” State v. Day, 461 N.W.2d 404, 406 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990).
The United States and Minnesota Constitutions prohibit unreasonable searches and seizures. U.S. Const. Amend. IV; Minn. Const. art. I, § 10. Whether a seizure has occurred depends on the totality of the circumstances, as applied to a reasonable person. State v. Harris, 572 N.W.2d 333, 336 (Minn. 1997). When a reasonable person under the circumstances, “would have believed that because of the conduct of the police he was not free to leave,” a seizure has occurred. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). When the officer engages in a show of authority or other action that goes beyond the expectations of the average citizen, a seizure has likely taken place. Day, 461 N.W.2d at 407. Circumstances that may indicate that a seizure has occurred, even when the individual did not attempt to terminate the encounter, include “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.” E.D.J., 502 N.W.2d at 781 (quotation omitted). The supreme court explained in E.D.J. that the standard for determining whether a seizure has occurred:
rests upon the proposition that police, without having later to justify their conduct by articulating a certain degree of suspicion, should be allowed to seek cooperation, even where this may involve inconvenience or embarrassment for the citizen, and even though many citizens will defer to this authority of the police because they believe—in some vague way—that they should. If the moral and instinctive pressures to cooperate are in general sound and may be relied on by the police, then a street encounter does not amount to a fourth amendment seizure merely because of those pressures—that is, merely because the other party to the encounter is known to be a policeman. Rather, the confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse. The critical inquiry is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens.
502 N.W.2d at 782 (quotation omitted).
The supreme court has also explained that in some circumstances, an officer has a duty to make inquiries.
In the proper performance of his duties, an officer has not only the right but a duty to make a reasonable investigation of vehicles parked along roadways to offer such assistance as might be needed and to inquire into the physical condition of persons in vehicles. . . . [C]ourts generally have held that it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car. . . . The occupant of an already parked car may be intoxicated, he may be suffering from sudden illness or heart attack, or may be just asleep. Surely, it is within a responsible peace officer’s duty as it relates to the public to determine whether his assistance is needed.
Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984) (quotation omitted).
The district court found that Napper believed that an accident had occurred and asked appellant to come up to him for the purpose of determining whether medical assistance was needed. Based on these facts, under Kozak, Napper had a duty to make a reasonable investigation whether assistance was needed.
Appellant argues that this case is distinguishable from Kozak and other assistance cases because, here, the officer did not just approach appellant, the officer summoned appellant. See Day, 461 N.W.2d at 407 (noting distinction between officer summoning person to officer’s presence and approaching person). In Day, however, there were no facts indicating that assistance might be needed by appellant, who was at a filling station about to pump gas into his car, and one of the reasons the officer summoned appellant was to have him respond to questioning. Id. at 406-07; see also State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994) (noting that officer’s conduct in Day, summoning defendant to approach squad car to not only provide identification but also to respond to questioning was more intrusive than request for identification by officer who approached stopped motorcycle), review denied (Minn. Mar. 14, 1995).
Appellant also cites Napper’s activation of the squad car’s flashing red lights as a signal of authority that turned the encounter into a seizure. But in State v. Hanson, 504 N.W.2d 219, 219-20 (Minn. 1993), the supreme court rejected the argument that an officer’s activation of a squad car’s flashing red lights, before getting out and approaching an already stopped car, turned the encounter into a seizure:
It may be that in many fact situations the officer’s use of the flashing lights likely would signal to a reasonable person that the officer is attempting to seize the person for investigative purposes. In this case, however, under all the facts, the officer’s conduct would not have communicated to a reasonable person in these physical circumstances that the officer was attempting to seize the person. A reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help if needed. A reasonable person in such a situation would not be surprised at the use of the flashing lights. It was dark out and the cars were on the shoulder of the highway far from any town. A reasonable person would know that while flashing lights may be used as a show of authority, they also serve other purposes, including warning oncoming motorists in such a situation to be careful.
Id. at 220.
Napper’s conduct in stopping and in asking appellant to come up to him for the purpose of determining whether medical assistance was needed did not involve any coercion beyond that inherent in any encounter between a police officer and a citizen. Napper conducted himself in a manner that would be perceived as a nonoffensive contact if an ordinary citizen had stopped to determine whether appellant needed assistance. We, therefore, conclude that the district court erred in concluding that Napper’s conduct in calling out to appellant and asking him to come up to Napper constituted a seizure. Because no seizure occurred when Napper called out to appellant, the evidence that Napper obtained was not the product of an illegal seizure. Therefore, we affirm the district court’s decision sustaining the revocation of appellant’s driver’s license.
 We note that having observed appellant driving the ATV, Napper’s subsequent observation of a moderate odor of alcohol on appellant and appellant’s admission that he drank a beer earlier, gave rise to a reasonable suspicion justifying the subsequent seizure of appellant. See Crawford v. Comm’r of Pub. Safety, 441 N.W.2d 837, 839 (Minn. App. 1989) (odor of alcohol and watery eyes were sufficient basis for seizure).