This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Marissa D. Papineau,



Filed October 2, 2007


Shumaker, Judge


Hennepin County District Court

File No. 06029150




Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Steven M. Tallen, Paul D. Baertschi, Tallen and Baertschi, 4560 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)


Charles A. Ramsay, Sharon R. Osborn, Ramsay & Devore, P.A., 450 Rosedale Towers, 1700 West Highway 36, Roseville, MN 55113 (for appellant)


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

U N P U B L I S H E D   O P I N I O N


            Appellant challenges her conviction of driving while-impaired (DWI), arguing that the arresting police officer lacked sufficient reasonable, articulable suspicion to ask for her driver’s license and insurance information after a vehicle accident.  She also contends that a portion of the implied-consent statute is unconstitutional.  Because the officer’s request did not constitute an unlawful seizure and because the implied-consent statute does not contravene appellant’s constitutional rights, we affirm.


A Maple Grove police officer received a dispatch to investigate an accident with unknown injuries between a gray SUV and a black truck on I-94 and County Road 30.  As the officer drove to that location, he saw a gray SUV with heavy front-end damage traveling east on County Road 30 away from the accident site.  The SUV drove into a SuperAmerica parking lot.

Without activating his emergency lights or siren, the officer also drove into the parking lot and parked three or four car-lengths away from the SUV, without blocking or otherwise obstructing the SUV.

The officer approached the SUV to see if the driver, later identified as appellant Marissa Papineau, needed assistance.  She stated that she was fine, that the accident was her fault, and that she and the driver of the truck had already exchanged insurance information.  The officer did not tell Papineau that she was being detained or was not free to leave.  He stepped away from the SUV for 30 to 60 seconds to request that another officer be sent to locate the truck that had been involved in the accident.

When the officer returned to the SUV, Papineau was standing outside of it.  He asked her again whether she was all right, and then he asked to see her driver’s license and proof of insurance.  He made these requests because police-department policy required him to complete an accident report.

Papineau talked about contacting her boyfriend to pick her up, and she said she had never been in an accident before.  As Papineau spoke, the officer smelled an odor of alcohol on her breath, and he asked whether she had been drinking.  When she said she had consumed alcohol the previous night, the officer conducted field-sobriety tests and concluded that there was probable cause to arrest her for driving while impaired.  Papineau later took a breath test, which showed an alcohol concentration of .15.

The state charged Papineau with driving while impaired and careless driving.  She moved to suppress the evidence against her on the ground that the officer’s request for her driver’s license and insurance information amounted to an unconstitutional seizure because, at that point, the officer had no reasonable articulable suspicion of criminal activity.  She also argued that the portion of the implied-consent statute that imposes criminal liability for test refusal is unconstitutional.

The district court denied Papineau’s motion to suppress, and she submitted the case under the Lothenbach procedure.  The court found her guilty of second-degree DWI, and she appealed the suppression issues.



In reviewing an order on a motion to suppress evidence, this court independently reviews the facts and the law to determine whether the district court erred by suppressing or not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  When there is no factual dispute, this court determines as a matter of law whether the officer’s actions amounted to a seizure and, if so, whether an adequate basis for the seizure exists.  State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988); State v. Pfannenstein, 525 N.W.2d 587, 588 (Minn. App. 1994), review denied (Minn. Mar. 14, 1995). 

            Papineau argues that the officer’s request to see her license and proof of insurance amounted to an unconstitutional seizure.  The Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution prohibit unreasonable searches and seizures.  State v. Burbach, 706 N.W.2d 484, 487-88 (Minn. 2005) (citing U.S. Const. amend. IV; Minn. Const. art. I, § 10).  A seizure occurs under Minnesota law if, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).  Circumstances when a reasonable person would not feel free to leave may 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.”   Pfannenstein, 525 N.W.2d at 588 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). 

            Not every contact between the police officer and a person is a seizure.  In re E.D. J., 502 N.W.2d 779, 781 (Minn. 1993).  For example, a person sitting in a parked car is not seized when an officer merely walks up to the person to check on his or her welfare and determine if the person needs help.  Id. at 782; see also Pfannenstein, 525 N.W.2d at 589 (holding that no seizure occurred when an officer approached a person on a motorcycle to offer assistance and made a single request for the person’s license); cf. State v. Johnson, 645 N.W.2d 505, 511 (Minn. App. 2002) (holding that a defendant was seized when officers seized his state identification card and told him not to leave while they ran a warrants check); State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990)(holding that a seizure occurred when a person was summoned to an officer’s squad car to produce his license and to respond to questioning), review denied (Minn. Dec. 20, 1990).

            Papineau argues that she was “seized” when the officer returned to her vehicle a second time to ask for her driver’s license and insurance information.  This record does not disclose any of the circumstances that typically constitute indicia of a seizure.  The officer never blocked or obstructed Papineau’s SUV; he never activated any emergency equipment; he never told her not to leave; and his purpose for coming back to her SUV after he had walked away was to obtain information for an accident report he was obliged to complete.  The reasonable person in Papineau’s position would not have concluded that she was not free to leave; thus, no seizure occurred.  Cripps, 533 N.W.2d at 391.

            Further, even if we were to determine that Papineau was seized, we would conclude that the officer had a reasonable, articulable basis for the seizure.  See Harris, 590 N.W.2d at 99 (for a valid seizure, state must be able to show an objectively reasonable, articulable suspicion of criminal activity).  “The touchstone of the Fourth Amendment is reasonableness.”  Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803 (1991).  Reasonableness, in turn, is measured by the totality of the circumstances. 

By the time the officer requested Papineau’s license and insurance information, he knew she had been in an accident, which she admitted was her fault.  He knew that the original dispatch indicated at least the possibility of injuries.  He saw substantial damage to the SUV, and the other vehicle was not at that location.  Although Papineau claimed that she and the other driver had exchanged insurance information, it was reasonable for the officer to verify who she was and whether she did in fact have insurance information.  Moreover, it would have been unreasonable for a police officer, who is charged with accident investigative duties, to fail to obtain the same basic information that the involved drivers obtained from each other.  The totality of the circumstances disclosed on this record attests to the reasonableness of the officer’s conduct and provides evidence of the articulable suspicion of criminal activity.  Thus, the totality of the circumstances provided an objectively reasonable basis for the officer to seize Papineau to investigate a possible charge of careless driving.  See Minn. Stat. § 169.13, subd. 2 (2004) (defining careless driving).  Therefore, we conclude that the district court did not err by denying the motion to suppress on the ground that the officer did not unreasonably seize Papineau when he requested her identification and insurance information.  


Papineau also challenges the constitutionality of Minn. Stat. § 169A.20, subd. 2 (2004), arguing that the implied-consent advisory threatens criminal liability for the exercise of a person’s Fourth Amendment right to withhold consent to a search.  The constitutionality of a statute is a question of law, which this court reviews de novo.   Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  A statute is presumed constitutional and will not be declared unconstitutional unless the party challenging it demonstrates a constitutional infirmity beyond a reasonable doubt.  State v. Merrill, 450 N.W.2d 318, 321 (Minn. 1990) (citations omitted). 

            In Schmerber v. California, 384 U.S. 757, 771-72, 86 S. Ct. 1826, 1836 (1966), the United States Supreme Court held that the withdrawal of blood from a person suspected of driving while impaired, if conducted in a reasonable manner after arrest, was not inadmissible on the ground that it violated the Fifth Amendment right against self-incrimination or the Fourth Amendment right to be free from unreasonable searches and seizures.  Following Schmerber, this court has held that Minn. Stat. § 169A.20 does not violate a defendant’s right against self-incrimination, right to privacy, or Fourth Amendment rights.  State v. Mellett, 642 N.W.2d 779, 784-85 (Minn. App. 2002), review denied (Minn. July 16, 2002); see also State v. Melde, 725 N.W.2d 99, 106 (Minn. 2006) (holding that the implied-consent advisory does not violate state or federal procedural due-process rights by failing to include a specific warning that test refusal is a gross misdemeanor).  In Mellett, this courtrecognized a “compelling state interest in protecting state residents from drunk drivers” and that the statutory framework of testing persons who are suspected of driving while impaired is an “important part of the implementation of that interest.”  Mellett, 642 N.W.2d at 784.  

            Papineau argues specifically that the implied-consent advisory violated her Fourth-Amendment rights by threatening criminal liability for failure to consent to a warrantless search in the form of chemical testing.  Mellett, however, is dispositive of this argument because this court rejected appellant’s argument that under Schmerber blood sampling was the only constitutional procedure for enforcing driving-while-impaired statutes.  Id. at 785.  The Mellett court concluded that the legislature was free to enact other procedures, stating that “we defer to the legislature’s judgment and hold that the refusal statute does not violate appellant’s Fourth Amendment rights.”  Id.

            We conclude that Minn. Stat. § 169A.20, subd. 2, does not unconstitutionally deny Papineau’s Fourth Amendment rights, and we affirm.