This opinion will be unpublished and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

C2-96-791

Chad Michael Colburn, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed December 3, 1996

Affirmed

Forsberg, Judge

[*]

Dakota County District Court

File No. C69515860

James R. Loraas, Loraas & Loraas, 201 West Burnsville Parkway, Suite 136, Burnsville, MN 55337 (for Appellant)

Hubert H. Humphrey III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Forsberg, Judge.

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

FORSBERG, Judge

In this appeal from an order denying a motion for a new trial and sustaining the implied consent license revocation, appellant Colburn brings Fourth and Fifth Amendment challenges to his arrest. Because we find no violation of Colburn's constitutional rights, we affirm.

FACTS

A Burnsville police officer, responding to a named informant's tip, drove to Chad Colburn's residence to investigate a possible theft of items from a parked car. As the officer approached the residence, she observed two men unloading firewood from a vehicle parked in the driveway. The license plate number of the vehicle matched the number reported by the informant.

When the two men noticed the officer exiting her vehicle, they stopped unloading the wood and moved quickly toward the house. The officer called out for them to stop. In subsequent questioning the officer learned that Colburn was the owner of the vehicle parked in the driveway, that he had been driving the vehicle, and that the wood had been stolen from an outdoor vendor located in the same area from which the informant's tip had come.

After some minutes a second officer arrived at the residence. The second officer asked Colburn if he could search Colburn's vehicle for evidence of items which may have been stolen from another car. Colburn consented. The officer placed Colburn in his squad car while he searched Colburn's car. No evidence of stolen items was discovered.

When the officer returned to his squad car he noticed a strong smell of alcohol. He asked Colburn if he had been drinking, and Colburn said that he had had "a couple beers." He also asked Colburn if he had been driving, and Colburn admitted that he had. The officer conducted a series of field sobriety tests, including a preliminary breath test, which Colburn failed. Colburn was placed under arrest for DWI, and at the police station his alcohol concentration was determined to be .16.

Colburn challenged his license revocation at an initial hearing and again by a motion for a new trial. He now appeals the order denying his motion for a new trial.

D E C I S I O N

When reviewing Fourth Amendment rights, this court makes an independent evaluation of the facts to determine the reasonableness of the police officer's conduct. State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989), aff'd sub nom. Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684 (1990).

Colburn's challenge rests exclusively on the novel proposition that he was placed "under arrest" when the police officer initially called out for him to stop. Colburn blends language from two supreme court decisions, State v. Paul, 548 N.W.2d 260 (Minn. 1996), and In re Welfare of E.D.J., 502 N.W.2d 779 (Minn. 1993), to conclude that a citizen is placed under arrest when commanded by a police officer to stop. The officer, according to this analysis, needed probable cause to call out for Colburn to stop. Since probable cause was lacking, Colburn argues, the "arrest" was illegal and all evidence and admissions resulting from the illegal arrest ought to be suppressed as fruit of the poisonous tree, including the subsequent license revocation. We disagree.

In Paul, the court considered whether a warrantless entry into a home was justified based on the "hot pursuit" exception. The court said in dicta that the officer "set in motion an arrest" when he commanded the defendant to stop and that the defendant could not avoid the arrest by retreating into his home. Paul, 548 N.W.2d at 265. The court came to this conclusion based on its holding in E.D.J. that a person is "seized" under the Minnesota Constitution when a police officer commands him or her to stop. E.D.J., 502 N.W.2d at 783 (rejecting the "seizure" standard developed in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991)).

It is well-settled that not every stop or seizure constitutes an arrest. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). While there is no "bright line of demarcation between investigative stops and arrests," a stop becomes a de facto arrest when the officer's conduct is more intrusive than necessary for an investigative stop. United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir. 1994), cert. denied, 115 S. Ct. 1970 (1995); State v. Kline, 351 N.W.2d 388, 390 (Minn. App. 1984).

Colburn's proposed reading of Paul would essentially prohibit the Terry-type stop and reverse three decades of well-established constitutional interpretation allowing police officers to stop an individual and conduct a limited interrogation on the basis of a reasonable suspicion in the absence of probable cause. We decline to so hold.

Calling out for a suspect to stop is a seizure under the Minnesota Constitution. E.D.J., 502 N.W.2d at 783. A seizure must be "objectively justified" to comport with constitutional standards. State v. Petrick, 527 N.W.2d 87, 88 (Minn. 1995), cert. denied, 115 S. Ct. 2008 (1995). The officer must have a "reasonable basis to infer * * * [or] suspect * * * wrongdoing." Id. at 89.

Here, the officer approached Colburn's residence because she was investigating a tip from a named informant. She observed a vehicle, which the informant had identified, in the driveway and two men unloading firewood from the vehicle. When the men saw her they attempted to flee into the house. Any one of these factors alone would provide a reasonable basis to suspect wrongdoing and justify the slight intrusion of asking the men to stop and answer some questions. See, e.g., id. (police officer's suspicion that driver was attempting to evade him provided sufficient basis for stop).

We need not reach the issue of whether Colburn was in custody for purposes of Miranda when he was placed in the back of the squad car. Even if Miranda rights had attached, the exclusion of any statements he made to the officer while in the squad car would not have helped Colburn's case: Colburn had previously admitted that he had been driving the vehicle, and the officer's suspicion of intoxication was based on smell rather than verbal admissions.

Colburn's assertion that the in-presence requirement of Minn. Stat. § 629.34, subd. 1(c)(1) (1994) was violated is without merit. As discussed above, Colburn was not placed under constructive arrest and, therefore, certainly was not placed under formal arrest by the investigating officer. Equally meritless is Colburn's argument that the officer's entry onto his driveway violated his Fourth Amendment privacy rights. See State v. Krech, 403 N.W.2d 634, 637 (Minn. 1987) (police do not need warrant or probable cause to enter homeowner's driveway); State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975) (police with legitimate business may enter portions of homeowner's property open to the public).

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.