This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2141

 

Joshua Gregory James, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed December 18, 2007

Affirmed

Stoneburner, Judge

 

Dakota†County District Court

File No. C4-06-13263

 

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)

Lori Swanson, Attorney General, Melissa Eberhart, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Minge, Judge.†

U N P U B L I S H E D†† O P I N I O N

STONEBURNER, Judge

Appellant challenges the district courtís order sustaining revocation of his driverís license.† We affirm.

 

FACTS

A state patrol officer observed a vehicle stalled on the right side of a highway under an overpass at 1:30 a.m. and saw appellant, Joshua Gregory James, walking away from the vehicle.† The officer, who considered the location of the vehicle to be a safety hazard, assumed James was the driver and approached him to assist in moving the vehicle to a safer location.† The officer pulled up next to James, who confirmed that he was the driver and said that the vehicle had run out of gas about five minutes earlier.† James told the officer he had the keys as he patted his pockets.† The officer told James to get into the squad car to return to the vehicle to move it, and the officer later testified that although James was not under arrest at that point, he was not free to leave.† The officer smelled alcohol on Jamesís breath while speaking to him at that time but did not observe any obvious signs of impairment.†

††††††††††† The officer had James put the vehicle in neutral and steer the vehicle while the officer pushed it to a safer location.† The officer then spoke further with James and noticed that his eyes were bloodshot and watery.† He asked James if he had been drinking and James said he had consumed one beer and a Long Island tea about one hour earlier.† The officer believed that this amount of alcohol would cause James to be impaired, so he conducted field sobriety tests and a preliminary breath test.† James stipulates that the field sobriety tests gave the officer probable cause for arrest.† The officer arrested James for DWI, and his license was subsequently revoked under the implied consent law.

James petitioned for judicial review of the revocation of his driverís license.† In his petition, James asserted several challenges to post-arrest testing, but at the implied consent hearing James stipulated to the events that followed his arrest and asserted only three arguments: (1) that the officer did not have reason to believe that James was operating, driving or in physical control of the vehicle; (2) that the officer did not have reason to believe that James was under the influence of alcohol, and (3) that because James was in custody when he initially got into the squad car, he was entitled to a Miranda warning; therefore any statements he made after he got into the squad car should be suppressed.† Respondent Commissioner of Public Safety argued to the district court that James was not entitled to a Miranda warning and that suppression does not apply to implied consent proceedings.† Jamesís counsel indicated that he would submit a letter brief on this issue.

After the implied consent hearing, Jamesís counsel submitted a letter brief arguing that James was illegally seized when the officer asked him to get into the squad car, that he was entitled to a Miranda warning when the officer initially placed him in the squad car, and that the officer lacked probable cause to arrest him.† Respondent asserts that it did not receive a copy of this letter brief, and the record is inconclusive on this issue.

The district court sustained revocation of Jamesís driverís license.† The district court did not specifically address whether James was seized at the time the officer told him to get into the squad car.† The district court concluded that upon initially observing James, the officer had probable cause to believe that James was in recent physical control of the vehicle and found that a Miranda warning was not required because the officer ďplaced [James] in the back of [the] squad car for a short period of time in order to inquire as to [Jamesís] reason for walking away from a vehicle stalled on the side of a highway on-ramp and presumably to protect [James] from oncoming traffic.Ē† The district court also found that the officerís observations and Jamesís admission about what he drank gave the officer probable cause to believe James was under the influence of alcohol.† This appeal followed.†

On appeal, James no longer asserts that he was entitled to a Miranda warning, but argues that because he was illegally seized when the officer told him to get into the squad car, any evidence obtained after the seizure should have been suppressed, and because the officer illegally prolonged contact with him after the vehicle was moved to a safe place, evidence obtained during the continued detention should also be suppressed.

D E C I S I O N

Respondent argues that Jamesís claims on appeal that he was unlawfully seized are barred because they were not raised, litigated, or considered in the district court.† A petition for judicial review of revocation of a driverís license under the implied consent law must ďstate with specificity the grounds upon which the petitioner seeks rescission of the order of revocation.Ē †Minn. Stat. ß 169A.53, subd. 2(b)(3) (2006); see also Schafer v. Commír of Pub. Safety, 348 N.W.2d 365, 368 (Minn. App. 1984).† The purpose of the specific-pleadings requirement is to alert the commissioner and the district court to the specific matters at issue.† Rancour v. Commír of Pub. Safety,355 N.W.2d 462, 464 (Minn. App. 1984).† A district court does not err by failing to address an issue not raised in the petition for judicial review and not raised at the hearing.† Id.† And it is improper for the district court to rescind a revocation on a basis not raised in the petition for review.† Eveslage v. Commír of Pub. Safety,353 N.W.2d 623, 625-26 (Minn. App. 1984), superseded by statute, 1984 Minn. Laws ch. 622, ß 26.† Because James did not timely raise the issue of illegal seizure or illegal extension of a seizure, respondent was deprived of the opportunity to address those issues and we conclude that they are waived on appeal.††

††††††††††† Even if we were to address the issues in the interests of justice, we conclude that there is no merit in Jamesís argument that evidence should have been suppressed and his license reinstated due to an illegal seizure or illegal prolongation of a seizure.†† Whether an officerís action amounted to a seizure, and if so, whether the officer had an adequate basis for the seizure, are questions of law for the court to determine.† State v. Day, 461 N.W.2d 404, 406 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990).† Not every contact between a citizen and a law-enforcement officer constitutes a seizure.† In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (citing Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).† An officer may speak with a person in a public place or with the driver of an already-stopped vehicle without effecting a seizure.† Kozak v. Commír of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984).†† A seizure occurs ď[w]hen, under the totality of circumstances, a reasonable person would believe that, because of the conduct of the police, he or she [is] not free to leave.Ē† State v. Bergerson,659 N.W.2d 791, 795 (Minn. App. 2003).

††††††††††† In this case, the officer testified that James was ďsomewhat detainedĒ because he would not have let James leave without moving the vehicle to a safer location.† The officer testified that he asked James to accompany him back to the vehicle and James agreed.† James testified that the officer leaned in toward him, a few inches from his face, and told him that they were going to move the car.† Based on the district courtís finding that the officer ďplacedĒ James in the back of the squad car, it appears that the district court believed that there was something more than a request that James enter the squad car, supporting Jamesís argument that he was seized.† However, based on the record it is plain that James, if seized, was not seized for the purpose of arrest or investigation, but rather for the limited purpose of addressing what the officer perceived as a danger to public safety.† A seizure may be justified under the emergency exception, which applies if the officer is motivated by the need to render aid and under the circumstances a reasonable person would believe that an emergency existed.† State v. Lopez, 698 N.W.2d 18, 23 (Minn. App. 2005).† We conclude that even if James was seized when he got into the squad car, the seizure was for the purpose of addressing an emergency situation and was not illegal.

Furthermore, transporting James back to the vehicle in the squad car did not result in the discovery of any of the evidence that led to Jamesís arrest.† Even if James was seized when he got into the squad car, that seizure ended when he got out of the squad car and into his own vehicle to assist in moving it.† There is no evidence that James was not free to leave the scene after the vehicle was moved.†

Because any possible seizure ended once Jamesís vehicle was moved, the fact that the officer approached him to have further conversation did not constitute an illegal expansion of a seizure.† The approach of an already-stopped vehicle is not a ďstopĒ or a ďseizureĒ under the Fourth Amendment necessitating reasonable articulable suspicion of criminal activity.† See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (finding no seizure occurred when defendant was in a stopped car when the officers approached).† The officer developed a reasonable suspicion that James had recently driven the vehicle during the officerís initial constitutionally permissible contact with James, and it was during the officerís additional constitutionally permissible contact with James after the vehicle was moved that the officer had a reasonable suspicion that James was under the influence of alcohol.† James has conceded that the field sobriety tests gave rise to probable cause for the officer to arrest him for DWI.† The district court did not err in sustaining revocation of Jamesís driverís license under the implied consent law.†

Affirmed.††