This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-1328

State of Minnesota,

Appellant,

vs.

Jeffery Wayne Hasselbacher,

Respondent.

Filed November 19, 1996

Reversed

Harten, Judge

Meeker County District Court

File No. K7-96-289

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Appellant)

David G. Berry, City Attorney for the City of Dassel, Olson, Nelson, Wood & Berry, 34 East Second St., P.O. Box 682, Litchfield, MN 55355 (for Appellant)

Peter J. Kasal, Keefe & Kasal, 246 Main St. S., P.O. Box 220, Hutchinson, MN 55350 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

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

HARTEN, Judge

At a pretrial evidentiary hearing following respondent's DWI arrest, the district court dismissed the charges against respondent, finding that the arresting officer did not have a particularized and objective basis for suspecting respondent of criminal activity necessary to justify the seizure of respondent. We reverse and remand for trial.

FACTS

On March 30, 1996, at approximately 6:35 p.m., Meeker County Deputy Sheriff Brian Cruze was on patrol near Grove City when he received a radio call from the dispatcher relaying a citizen's report that a person was shooting from the window of a maroon, "sporty-looking" car. The citizen stated that the car was last seen headed southbound on Highway 15. When Cruze received the dispatch, he was several miles from Highway 15. Cruze thereupon contacted Dassel City Police Officer Asplin for assistance. Cruze asked Asplin to monitor the intersection of Highway 15 and Highway 12 (about five to seven miles from where the shooting incident had been observed) for cars matching the description.

While Cruze was en route to Dassel, Asplin notified him that he had spotted a car that was a "possible match" traveling southbound on Highway 15. Asplin had clocked the car traveling 65 mph in a 55 mph zone. Asplin followed it into the parking lot of the Dassel Diner and observed the driver enter the diner.

When Cruze arrived, both officers looked at the car and then entered the diner. Asplin pointed out the driver. Cruze, who was in uniform, motioned to the driver, respondent Jeffery Wayne Hasselbacher, to accompany the officers outside the diner. Cruze asked respondent if he was the driver of the suspect car, questioned him about his travel route to the diner, informed him of the citizen's report, and told him that his car was a possible match. With respondent's consent, the officers subsequently searched the car but found no firearms. Having noticed an odor of alcohol on respondent's breath and based on his observations of respondent, Cruze suspected a possible DWI. After further questioning and administration of field sobriety tests, Cruze arrested respondent for DWI.

At a subsequent pretrial evidentiary hearing, respondent moved for dismissal, alleging an illegal seizure. The district court granted respondent's motion, finding that respondent was seized by the officers without a particularized and objective basis to suspect him of criminal activity. The state appealed.

D E C I S I O N

This appeal raises two issues: whether the officers seized respondent when they summoned him at the diner, and, if a seizure occurred, whether it was justified by articulable suspicion. Where, as here, the facts are essentially undisputed, we analyze the officer's testimony and determine if, as a matter of law, the officers were justified in doing what they did. State v. Storvick, 428 N.W.2d 55, 58 N.1 (Minn. 1988).

1. We must first decide whether the officers seized respondent. This involves whether, under the totality of the circumstances, a reasonable person in respondent's position would feel free to leave. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). Normally, a reasonable person would not feel restrained when approached and engaged in conversation by a police officer in a public place. Id. at 782; State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (explaining that generally an officer does not seize a person by simply walking up and talking to a person standing in a public place). Nevertheless, we have held that a seizure takes place when an armed, uniformed officer summons an individual to approach, provide identification, and respond to questioning. State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990) review denied (Minn. Dec. 20, 1990). In Day, we noted that such conduct is "not an 'otherwise inoffensive contact between a member of the public and the police,'" but rather is a show of authority one would not expect between private citizens. Id. (quoting United States v. Mendenhall, 446 U.S. 544, 555, 100 S. Ct. 1870, 1877 (1980)).

The totality of the circumstances here shows that uniformed officers summoned respondent to the foyer of the diner, asked him to step outside, inquired about his car, and informed him that his car matched the description of the one involved in the shooting incident. The officers' act of causing respondent to leave the diner was an act of compulsion. By informing him that his car was under investigation, the officers implied that they were investigating him for criminal involvement. See State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (holding that a reasonable person would believe that he or she had been seized when officer approached to investigate person's involvement in criminal activity). Applying the Day analysis to the undisputed facts before us, we conclude that a reasonable person would not have felt free to disobey the officers' instructions. Accordingly, we hold that the officers seized respondent when they summoned him for investigation.

2. Next, we turn to whether the totality of the circumstances provided the officers with articulable suspicion to seize respondent. Welfare of E.D.J., 502 N.W.2d at 783. A police officer may stop and temporarily seize a person in order to investigate that person for criminal activity if the officer reasonably suspects the person's involvement. Ascher v. Commissioner of Pub. Safety, 519 N.W.2d 183, 184-85 (Minn. 1994). The basic rule for investigative stops requires that police have a "particular and objective basis for suspecting the particular person stopped of criminal activity." State v. Johnson, 444 N.W.2d 824, 825 (Minn. 1989) (quoting United States v. Cortez, 449 U.S. 411, 417-18; 101 S. Ct.690, 695 (1981)). Under the objective approach announced by the United States Supreme Court and adopted by the Minnesota Supreme court, a stop must be upheld if there is a valid, objective basis for it. Whren v. United States, ___ U.S. ___, 116 S. Ct. 1769, 1774 (1996) (constitutional reasonableness of traffic stop is not dependent upon actual motivation of officer involved); Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, reh'g denied, 438 U.S. 908, 98 S. Ct. 3127 (1978); State v. Olson, 482 N.W.2d 212, 214 (Minn. 1992) (explaining that as long as there is an objective basis for the search or seizure it is lawful even if the officer acted on the wrong ground or had an improper motive). All that is required is that the stop not be the product of mere whim, caprice, or idle curiosity. State v. Johnson, 257 N.W.2d 308, 309 (Minn. 1977).

Here, the officer's observation of respondent exceeding the posted speed limit provided a valid objective basis for the seizure. Officer Asplin clocked the respondent driving 65 mph in a 55 mph zone, in violation of Minn. Stat. § 169.14 (1994); this constituted a reasonable and articulable basis for the subsequent seizure of respondent. Even if the officers were motivated to seize respondent because of the matching car description and surrounding circumstances, the fact that Asplin observed respondent speeding is sufficient to uphold the seizure. We have previously upheld a traffic stop where the decision to make the stop preceded the occurrence of the traffic violation itself. State v. DeSart, 357 N.W.2d 416, 419 (Minn. App. 1984). The relevant inquiry is whether the officers had a reasonable, objective basis for the seizure, notwithstanding their actual subjective motive. Moreover, there is no requirement that the seizure of respondent take place immediately; the officers could lawfully seize him later inside the diner. See Windschitl v. Commissioner of Pub. Safety, 355 N.W.2d 146, 148 (Minn. 1984) (stating when an officer has the right to arrest a driver for an offense, the officer has the right to pursue the driver and apprehend him anywhere within the state); Shull v. Commissioner of Pub. Safety, 398 N.W.2d 11, 14 (Minn. App. 1986) (noting that an officer's decision not to stop a driver immediately is of no legal significance).

Accordingly, we conclude that because officer Asplin observed respondent speeding, the officers had an objective basis to seize him. The district court therefore erroneously dismissed the DWI charge against respondent.

Reversed and remanded.

Dated: _________________________________

James C. Harten