This opinion will be unpublished and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
State of Minnesota,
Weston Allan Baril,
Clay County District Court
File No. T5-05-922
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Kenneth Kohler, Clay County Attorney,
Jesse N. Lange, Aaland Law Office, Ltd.,
Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.
Appellant challenges denial of his motion to suppress evidence that led to his conviction of driving while impaired, arguing that he was illegally seized. We agree and reverse.
At 2:30 a.m. on the morning in question, State Trooper David Keenan noticed a pickup truck in an alleyway behind a strip mall that is adjacent to the interstate on which Keenan was traveling. Keenan saw the brake lights on the pickup flash twice. All of the businesses in the strip mall were closed. One of the businesses in the strip mall was a bar that closed at 2:00 a.m. Keenan testified that he decided to investigate “to find out what was happening back there.”
Keenan parked near the pickup truck, which was stopped with the engine running. Keenan illuminated the truck with his spotlight, enabling him to see a driver, later identified as appellant Weston Allen Baril, and a female passenger. Keenan testified that as he walked toward the truck, he did not observe any parking or traffic violations and the occupants of the truck did not appear to be in need of any assistance. Keenan went to the driver’s window and asked Baril for identification, which Baril produced. Keenan then asked Baril to step out of the truck. Keenan testified that he wanted to separate the driver and passenger before inquiring about why they were there. Baril asserts that at this point, if not earlier, Keenan had seized him without any articulable suspicion to support the seizure. Baril does not contest that at some point after the seizure, Keenan had probable cause to arrest for him DWI.
Baril moved to suppress evidence of his intoxication, arguing that he was seized without a reasonable, articulable suspicion of criminal activity. After an evidentiary hearing, both parties submitted letter briefs to the district court. The state argued that when Baril opened the window of the truck to talk to Keenan, Keenan smelled alcohol and Baril admitted having consumed alcohol, giving Keenan the requisite suspicion to have Baril step out of the vehicle and perform sobriety tests. The district court adopted the state’s factual assertions and denied Baril’s motion to suppress.
Baril requested reconsideration and provided a transcript of the omnibus hearing to show that Keenan did not testify that he detected an odor of alcohol at any time during his encounter with Baril and did not testify that Baril had admitted consuming alcohol. The district court acknowledged its erroneous findings but concluded that even in light of the corrected facts, Keenan did not seize Baril, or, alternatively, that if Baril was seized, the seizure was justified by a reasonable articulable suspicion.
The matter was submitted to the
district court on stipulated facts under State
v. Lothenbach, 296 N.W.2d 854 (
I. Standard of Review
“When reviewing pretrial orders on
motions to suppress evidence, [this court] 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 (
The Fourth Amendment to the United
States Constitution and Article I, Section 10 of the Minnesota Constitution
prohibit unreasonable searches and seizures of citizens by government actors. But not every encounter between a police
officer and a citizen is a seizure. In re E.D.J., 502 N.W.2d 779, 781 (
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. In the absence of some such evidence, 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.
E.D.J., 502 N.W.2d at 781 (quotation omitted).
“A person generally is not seized
merely because a police officer approaches him in a public place or in a parked
car and begins to ask questions.” Harris, 590 N.W.2d at 98. “Moreover, seizure does not result when a
person, due to some moral or instinctive pressure to cooperate, complies with a
request to search because the other person to the encounter is a police
We conclude that Baril was seized when Keenan asked Baril for identification and asked him to step out of the truck. The district court erred in concluding that Baril was not seized.
III. Reasonable Suspicion
We next examine whether Baril’s
seizure was reasonable under the totality of the circumstances. “[W]hen a person is seized, courts must
suppress evidence gathered as a result of that seizure only when the seizure
was unreasonable.” Harris, 590 N.W.2d at 99.
“The brief seizure of a person for investigatory purposes is not
unreasonable if an officer has a particular and objective basis for suspecting
the particular person [seized] of criminal activity.”
Baril argues that his seizure was unreasonable because Keenan’s only articulated reason for investigating was that he “[w]anted to find out what was happening” when he saw brake lights flash on a truck parked behind the strip mall at 2:30 a.m. The state argues that given the time of day and location of the truck, Keenan had articulable suspicion that justified Baril’s seizure. In Olmscheid v. Comm’r of Pub. Safety, this court stated,
Especially during the hours of darkness, the police will have a sufficient basis to stop in order to investigate whether a burglary of a closed commercial establishment is pending or had occurred when the suspect is seen in such close proximity to that establishment that he appears to be something other than a mere passerby. Sometimes the time of day and nature of the area will be very significant in establishing the requisite proximity . . . .
N.W.2d 41, 43 (
where a car pulled away from a tavern located in an industrial area at about 5 o’clock in the morning, it was proper to stop the vehicle, as the tavern had been closed for several hours and there would be no valid reason for persons to be stopping in the industrial area during this time.
Baril relies on Day, 461 N.W.2d at 407, and State
v. Sanger, 420 N.W.2d 241, 242 (
In Sanger, the arresting officer observed a vehicle that was parked in
In concluding that Sanger was
unreasonably seized, this court noted that “nothing was articulated as
dangerous or suspicious about the location of [Sanger’s] car.”
 The state agrees that the “facts” asserted in its brief to the district court were not in the record of the omnibus hearing.