This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).


Dennis S. Griffin, petitioner,


Commissioner of Public Safety,

Filed August 13, 1996
Norton, Judge

Hennepin County District Court
File No.  IC473150

Michael McGlennen, 425 South Third Street, Minneapolis, MN 
55415 (for Appellant)

Hubert H. Humphrey III, Attorney General, Joel A. Watne, 
Assistant Attorney General, 500 Capitol Office Building, 525 Park 
Street, St. Paul, MN 55103-2106 (for Respondent)

	Considered and decided by Peterson, Presiding Judge, 
Norton, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N

	In challenging the revocation of his driving privileges, 
appellant contends the arresting officer lacked reasonable 
suspicion to seize him and lacked probable cause for arrest.  We 


	On the evening of June 23, 1995, two concerned citizens 
called the St. Louis Park Police Department to report that a man 
was slumped over in a parked vehicle in a parking lot of an 
apartment complex.  When the officers arrived, the two concerned 
citizens pointed out the vehicle in question.  Although the engine 
was not running, the brake lights were illuminated.  The driver's 
window was rolled down, and a man, who appeared to be sleeping, 
was in the driver's seat.  Officer Reuben called for a backup and 
parked his car near the vehicle in question.  The backup officer 
parked adjacent to him.
	Officer Reuben then focused his spotlight inside the vehicle 
and approached.  As he got closer to the vehicle, he smelled the 
odor of alcohol coming from the vehicle and saw the key in the 
ignition.  Officer Reuben shook the man and asked him if he was 
all right.  Officer Reuben testified that he was primarily checking 
on the welfare of this man.  The man awakened and was later 
identified as appellant Dennis Samuel Griffin.  Appellant was 
confused and incoherent; his speech was slurred.  When the 
officers asked him to exit the vehicle, he was unsteady getting out 
of the vehicle and required assistance walking back to the squad 
car.  The officers did not conduct field sobriety tests, but did give 
appellant a preliminary breath test (PBT) which produced a "fail" 
reading; the PBT is calibrated to fail at alcohol concentrations of 
.11 or over.  On the basis of what he had observed, Officer Reuben 
placed appellant under arrest for driving while intoxicated (DWI) 
in violation of Minn. Stat.  169.121, subd. 1 (1994).  His driving 
privileges were revoked pursuant to the implied consent statute, 
Minn. Stat.  169.123, subd. 4 (1994).  After a hearing to review 
appellant's case, the district court sustained the revocation.


	Appellant challenges the propriety of Officer Reuben's 
initial contact with appellant, claiming the officer had no 
reasonable suspicion to stop him.
	Whether an officer's actions amounted to a "stop" and 
"seizure" for purposes of Fourth Amendment protection is a 
question 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).  Similarly, whether the officer had an adequate 
basis for the stop and seizure is a question of law.  Id.
	We note first that Officer Reuben did not "stop" appellant's 
vehicle.  The officer responded to a call from concerned citizens 
that a man was slumped over in a parked vehicle; the car was 
already parked and stopped before the officer approached.  Nor did 
the officer seize appellant when he first approached the vehicle.
[I]t does not by itself constitute a seizure for an 
officer to simply walk up and talk to a person 
standing in a public place or to a driver sitting in an 
already stopped car.

State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980).  Officer 
Reuben lawfully approached appellant, without first suspecting 
criminal activity, because he came to the scene to check on 
appellant's welfare.  See State v. Compton, 293 N.W.2d 372, 373 
(Minn. 1980) (holding seizure did not occur when police "stopped 
to help" motorist whose truck was stopped along highway); 
Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244, 245 
(Minn. App. 1986) (holding seizure did not occur when officer 
pulled up behind legally parked car with light on "to determine 
whether there were people in need of assistance").
	Appellant next contends the officer seized him when he 
parked near his vehicle and shone a spotlight on him.  When 
evaluating the nature of interaction between an officer and a 
citizen, the court compares it to inoffensive conduct that would 
occur between ordinary citizens.  State v. Sanger, 420 N.W.2d 
241, 242-43 (Minn. App. 1988).  Questions within routine 
conversation may be acceptable if the officer does not harass or act 
overbearing.  Id. at 243.  In Sanger, where police boxed in the 
defendant's car, activated flashing red lights on the squad car, and 
sounded the horn, this court held that strong show of authority was 
"far beyond the realm of private citizens' interactions and resulted 
in a seizure."  Id. at 243.  The police in Sanger, however, used 
those tactics to intimidate a defendant who had attempted to flee.
	In contrast here, Officer Reuben saw that appellant 
appeared asleep; the record contains no evidence that he turned on 
the spotlight as a show of force.  Officer Reuben's use of the 
spotlight was appropriate, because he had lawfully approached 
appellant to check his welfare.  See State v. Alesso, 328 N.W.2d 
685, 687 (Minn. 1982) (court generally upholds officer's use of 
spotlights or flashlights to see inside vehicle, so long as officer 
lawfully acquired his "position vis-a-vis the vehicle").  With regard 
to Officer Reuben's call for a backup officer, we consider that 
action reasonable in light of the violence against Minnesota 
officers that has occurred in the line of duty when checking on 
occupied vehicles.  Officer Reuben's conduct was not overbearing 
or harassing, but similar to that between two ordinary citizens, if 
one was checking on the welfare of the other.  Sanger, 420 
N.W.2d at 243.  The officer did not seize appellant at this juncture.
	As Officer Reuben came close to the vehicle, he smelled the 
odor of alcohol and saw the key in the ignition.  He shook 
appellant to determine his condition.  When appellant awoke, he 
exhibited slurred speech and a confused mental state.  Officer 
Reuben then asked appellant to exit the vehicle.
	Summoning appellant from his vehicle constituted a seizure 
under the Fourth Amendment.  Day, 461 N.W.2d at 407.  This 
seizure was valid and justified, because the officer had a 
reasonable suspicion that a crime had been committed, i.e. the 
officer believed that appellant was in control of a motor vehicle 
while intoxicated.  See Crawford v. Commissioner of Pub. Safety, 
441 N.W.2d 837, 839 (Minn. App. 1989) (officer had basis for 
Fourth Amendment seizure after she observed that driver had 
glassy and watery eyes and smelled of alcohol).  The officer did 
not summon appellant from his vehicle until after observing this 
evidence of intoxication:  appellant smelled of alcohol, was 
confused, and exhibited slurred speech.  These facts do not 
constitute a "fishing expedition" in which the police stop someone 
on a whim and see what, if any, criminal activity they can find.  Cf. 
Day, 461 N.W.2d at 408 ("restraint of appellant was for idle 
curiosity outside the parameters of conduct acceptable under the 
fourth amendment").  The officer here approached appellant to 
check on his welfare and saw sufficient indicia of intoxication to 
establish reasonable suspicion to seize him.
	Appellant also argues the officer lacked probable cause for 
the arrest.  Minn. Stat.  169.121, subd. 1(a) (1994) makes it a 
crime for anyone to "be in physical control of any motor vehicle 
* * * when the person is under the influence of alcohol."  A person 
may be in physical control of the vehicle even though the motor is 
not running.  State, Dept. of Pub. Safety v. Juncewski, 308 
N.W.2d 316, 320 (Minn. 1981).  Officer Reuben observed 
appellant asleep in the driver's seat with the keys in the ignition and 
the brake lights illuminated.  These facts establish probable cause 
that appellant was in physical control of the vehicle.
	Although many "telltale" signs of intoxication may exist, an 
officer need see only one objective indicator of intoxication to 
establish "reasonable and probable grounds" that the person is 
under the influence of alcohol.  Holtz v. Commissioner of Pub. 
Safety, 340 N.W.2d 363, 365 (Minn. App. 1983); see also State v. 
Hicks, 301 Minn. 350, 353-54, 222 N.W.2d 345, 348 (1974) 
(holding officer need not observe all indicia of intoxication before 
determining individual is under the influence).  In addition to the 
signs of intoxication the officer had observed before he seized 
appellant, the officer witnessed appellant's unsteadiness on his feet; 
he needed assistance to walk.  Furthermore, appellant failed the 
PBT, which meant his alcohol concentration was at least .11.  
Based on these facts, the court properly determined that Officer 
Reuben had probable cause to believe that appellant had 
committed DWI.  The trial court properly sustained the revocation 
of appellant's driving privileges.