This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Samuel Eubanks, Jr.,
Filed September 27, 2005
Clay County District Court
File No. T1-04-3595
Mike Hatch, Attorney General,
Lisa N. Borgen,
Beverley L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, North Dakota 58108-6017 (for appellant)
Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On May 23, 2004, a police officer arrested and charged appellant with fourth-degree driving under the influence in violation of Minn. Stat. § 169A.20, subd. 1(1) (2002), and fourth-degree DWI (driving with an alcohol concentration of .10 or more) in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002). Appellant pleaded not guilty and moved the district court to suppress the evidence related to the charges, arguing that the officer unconstitutionally seized appellant and lacked probable cause to administer field sobriety tests. On August 9, 2004, the district court conducted an evidentiary hearing at which the witnesses testified to the following undisputed facts.
On May 23, 2004, Officer Asfeld and
his partner, Officer Carlson, were dispatched to the area of
Another officer, Borkenhagen, arrived on the scene and made contact with the male standing in the yard. Asfeld walked up to the male in the vehicle, identified the male as appellant, and explained why the officers were there. Appellant stated to Asfeld that the male in the yard was his brother and that they had been talking. Appellant denied having argued with his brother.
Asfeld believed that appellant had consumed alcohol because appellant’s eyes were watery and he smelled of alcohol. Asfeld inquired whether appellant had been drinking. Appellant stated that he had consumed three beers and some shots and had been at a bar. Asfeld then asked appellant to perform field sobriety tests. Appellant performed the tests, failing each one. Appellant’s preliminary breath test read .124. Asfeld subsequently arrested appellant.
The district court denied appellant’s motions to suppress evidence. Following a trial, the jury found appellant guilty of fourth-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002). This appeal follows.
“When reviewing pretrial orders on
motions to suppress evidence, we may independently review the facts and
determine, as a matter of law, whether the district court erred in
suppressing—or not suppressing—the evidence.”
State v. Harris, 590 N.W.2d
90, 98 (
Both the United States Constitution and
the Minnesota Constitution protect individuals from unreasonable searches and
seizures. U.S. Const. amend. IV;
A person generally is not seized merely because a police officer
approaches him [or her] in a public place or in a parked car and begins to ask
questions. State v. Vohnoutka, 292 N.W.2d 756, 757 (
Appellant argues that he was seized when a uniformed officer, who arrived in a squad car, approached him when he was sitting in his vehicle in his brother’s driveway. Additionally, appellant argues that in his rearview mirror he saw the officer pull up and park behind him. The state denies that the officer seized appellant when he approached appellant in his vehicle in order to assess the situation. The state notes that the officer did not activate his siren or his lights and did not block appellant’s vehicle from moving.
Here, based on the totality of the circumstances, Officer Asfeld’s actions would not lead a reasonable person to believe that he was not free to leave. Appellant argues that the officer parked behind his vehicle, suggesting that appellant’s movement was blocked. But appellant cites the trial transcript in support of this argument, rather than the relevant evidentiary hearing transcript. Neither appellant nor Officer Asfeld testified at the evidentiary hearing that Officer Asfeld blocked appellant’s movement by parking his squad car behind appellant’s parked vehicle. Indeed, the officer was unaware of appellant’s presence when he arrived at the location. Neither did the officer activate his squad car’s lights or siren. Instead, the officer merely approached appellant, who was in his parked vehicle, to ask questions. Thus, the officer’s actions did not constitute a Fourth Amendment seizure.
the officer had a lawful basis to question appellant, the officer had
reasonable articulable suspicion to request that appellant take a field sobriety
test once the officer observed sufficient indicia of intoxication.
Because the officer’s actions did not constitute a seizure, we do not reach appellant’s alternative argument that the alleged seizure was not supported by reasonable, articulable suspicion.
 The state dismissed count 1, a violation of Minn. Stat. § 169A.20, subd. 1(1) (2002), before trial.