This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1019

 

Dawn Mulcare, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed ­­­March 22, 2005

Affirmed

Dietzen, Judge

 

Dakota County District Court

File No. C8-04-12337

 

Jennifer E. Speas, Ani Backa Hartzheim, 310 Fourth Avenue South, #1050, Minneapolis, MN 55415 (for appellant)

 

Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2131 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

Appellant challenges the revocation of her driver’s license, arguing that a seizure occurred when the arresting officer positioned his squad car directly behind appellant’s legally parked vehicle, and that the officer lacked reasonable, articulable suspicion at the time of the seizure.  Because we conclude that the officer’s actions constituted a seizure, but that the officer possessed a reasonable and articulable suspicion of alcohol impairment, we affirm.

FACTS

            At about 2:25 a.m. on Christmas Day, 2003, Lakeville Police Sergeant John Kornmann was dispatched to respond to a call from a clerk at the Mega Stop gas station in Lakeville.  The clerk reported that a person appeared to be sleeping behind the wheel of a van parked with its motor running directly in front of the gas station, and that the person had been at this location for over an hour.  Upon arriving at the scene, Kornmann found the situation to be as the clerk described.  Based on his 15 years of experience as a police officer, Kornmann suspected that the driver was impaired by drugs or alcohol.  His suspicion was based on his experience that on holidays, people who are found sleeping in vehicles at 2 a.m. are commonly impaired by drugs or alcohol.

            Kornmann later testified that his training and experience have taught him that police can expect a variety of responses when they awaken sleeping drivers, some of which cause risks to public safety.  For example, he recounted an incident a few years ago where two St. Paul police officers were killed after responding to a call reporting that a driver was slumped behind the wheel of a running vehicle.  Kornmann also testified that an incident occurred on Christmas Day five years earlier when a Lakeville police officer approached a person sleeping in a car with the motor running in the same parking lot and was run over after the awakened driver tried to drive away.

            Due to his suspicion and his concern for public-safety, Kornmann parked his squad car directly behind appellant Dawn Mulcare’s running vehicle in a manner that would not allow her to drive away.  Before knocking on the window, Kornmann saw that appellant was unconscious and behind the wheel.  He tried to wake appellant but was initially unsuccessful.  Once appellant awakened, Kornmann asked her if she was okay.  He immediately noticed that her speech was slurred and that there was a strong odor of alcohol coming from her breath.  Kornmann administered field sobriety tests, which appellant failed.  He then invoked the implied consent law.  See Minn. Stat. § 169A.20, subd. 2 (stating that refusal to submit to chemical testing is a crime).  Appellant submitted to testing, which revealed an alcohol concentration of .10 or more.  Her driving privileges were subsequently revoked, and appellant sought review of the revocation.  After a hearing, the district court sustained the revocation.  This appeal follows.

D E C I S I O N

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.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  Where, as here, the facts are not disputed, this court determines as a matter of law whether the officer’s actions amounted to a seizure and whether the officer had an adequate basis for the seizure.  Id.; Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

I.

Appellant first argues that she was seized when Kornmann parked his squad car behind her vehicle.  Respondent contends that Kornmann’s actions did not amount to a seizure.  It is undisputed that Kornmann intentionally parked his squad car behind appellant’s to prevent her from moving her vehicle.  This factual finding will not be disturbed on review absent clear error.  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).  Thus, this case first turns on whether Kornmann’s actions actually constituted a seizure.

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 interpreted by a reasonable person.  State v. Harris, 572 N.W.2d 333, 336 (Minn. App. 1997).  “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”  In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 1877 (1980)).  A seizure can occur when an 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) (quotations omitted).

            Appellant relies on Klotz v. Comm’r of Pub. Safety, 437 N.W.2d 663 (Minn. App. 1989), review denied (Minn. May 24, 1989), and State v. Sanger, 420 N.W.2d 241 (Minn. App. 1988), to support the contention that appellant was seized when Kornmann parked his squad car in a manner that did not allow her to leave the scene.  We agree.  In Klotz, this court determined that a seizure occurred when a trooper “pulled in behind Klotz’s vehicle, blocking it partially, and then called out to Klotz, who had left his vehicle and was walking away, and asked him to stop and identify himself.”  437 N.W.2d at 665.  Similarly, in Sanger, this court held that an officer’s actions of boxing in Sanger’s car, activating his squad car’s flashing red lights, and honking his horn constituted a seizure.  420 N.W.2d at 243.

Here, as in Klotz and Sanger,Kornmann parked his squad car in a manner that would not allow appellant to drive away and then approached her vehicle.  This fact is undisputed by the parties.         But whether there has been a seizure also turns on the application of the reasonable person standard.  See State v. Wiegand, 645 N.W.2d 125, 132 n.7 (Minn. 2002) (stating that seizure occurs in Minnesota when a reasonable person would believe he was not free to leave); State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (stating that seizure occurs under the Minnesota Constitution when a reasonable person would not feel free to terminate an encounter with police).  Adherence to this standard ensures that the protections of Article I, Section 10, of Minnesota’s constitution do not vary with the subjective state of mind of the individual.  Cripps, 533 N.W.2d at 391.  Based on this standard, we conclude that a reasonable person would not have felt free to leave when Kornmann intentionally positioned his marked squad car to block movement of appellant’s vehicle.

Because it is undisputed that Kornmann parked his squad car in a manner that prevented appellant from moving her vehicle, we conclude that Kornmann’s actions constituted a seizure under the fourth amendment.


II.

Appellant next argues that Kornmann did not have a reasonable, articulable suspicion to justify the seizure.  To conduct an investigative seizure, a police officer must be able to articulate some objective manifestation that the person seized has been, is presently, or is about to be, engaging in criminal activity.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).  When properly supported, an anonymous tip can justify an investigative seizure.  See Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 554-55 (Minn. 1985) (citing instances of sufficiently supported anonymous tips).  Although an anonymous tip can be presumed reliable, it must be sufficiently specific, or independently corroborated when viewed in totality with the corroborating evidence.  Id.  The anonymous tip should contain specific and articulable facts to provide an adequate basis for a warrantless seizure.  Frank v. Comm'r of Pub. Safety, 384 N.W.2d 574, 576 (Minn. App. 1986).  To sustain the specific and articulable facts standard, the police must have a basis to believe that the anonymous informant is truthful along with a factual basis for the informant’s knowledge.  See Olson, 371 N.W.2d at 556 (stating that police did not have specific articulable facts sufficient to warrant an intrusion where nothing was known about the informant or about what led him or her to believe that the driver was “possibly” drunk).

Here, the dispatcher received information from an employee of the gas station that a woman was sitting in a van that was parked in front of the gas station with the engine running for over an hour.  Although not identified by name, the dispatcher knew that the caller was a clerk at the gas station, and Kornmann or another officer could have easily identified the caller by determining who was working at the time of the call.  Because the police could have readily identified the caller, it is unlikely the caller would have provided false information.  And because the caller was an employee of the gas station and witnessed the situation first hand, there is a factual basis for the informant’s knowledge.  Upon arriving at the scene, and confirming the caller’s description of the situation, Kornmann believed the occupant of the vehicle might have been intoxicated and blocked her vehicle.  But his suspicion was based not only on the clerk’s statement, but also on his experience as a police officer that a sleeping occupant of a parked and running vehicle, in the early morning of a holiday, is likely to be intoxicated. 

Based on the totality of the circumstances, it was likely that appellant was engaging in criminal activity through her physical control of a vehicle while intoxicated.  See Minn. Stat. § 169A.20, subd. 1 (2002).  This conclusion is supported not only by the information obtained from the informant but also by Kornmann’s experiences and personal observations.  Accordingly, we conclude Kornmann had a reasonable and articulable suspicion of criminal activity to seize appellant. 

            Affirmed.