This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1151

Roger Allan Anderson, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed February 18, 1997

Affirmed

Huspeni, Judge

Watonwan County District Court

File No. C6-96-71

Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for Appellant)

Hubert H. Humphrey III, Attorney General, Jeffrey F. Lebowski, Joel A. Watne, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for Respondent)

Considered and decided by Davies, Presiding Judge, Huspeni, Judge, and Short, Judge.

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

HUSPENI, Judge

Appellant challenges the trial court's order sustaining his driver's license revocation, arguing that the police officer did not have a reasonable articulable suspicion to believe appellant committed a crime. We affirm.

FACTS

At 12:09 a.m. on Sunday, January 21, 1996, St. James Police Lieutenant Ricky Eisfield was on patrol when he overheard the dispatcher provide Watonwan County Deputy Sheriff Matthew Klages with a report of a one-vehicle rollover just south of the City of St. James. Due to poor road conditions, weather, and his distance from the accident scene, Klages requested that the St. James Police Department respond to the accident to see if anyone was injured or in need of assistance. Eisfield responded to the call.

As Eisfield was about an eighth of a mile from the accident scene, he observed an individual walking northbound on Highway 27, toward the City of St. James. Eisfield, who was heading southbound on Highway 27, cut across the road into the opposite lane of traffic and pulled alongside the individual. According to Eisfield, he rolled his window down after the individual walked up to his patrol car, asked the individual if he was involved in the accident, and if he was injured. The individual, later identified as appellant, stated that he had been in an accident, but that he was not injured. Eisfield asked appellant to get into his patrol car so they could visit the accident scene. After appellant got into the patrol car, Eisfield noticed a strong odor of alcohol on appellant's breath. He also noticed that appellant's speech was slurred. Approximately five minutes after Eisfield and appellant arrived at the scene of the accident, Klages arrived. Eisfield informed Klages of his observations of appellant.

During the implied consent hearing, only Eisfield and Klages testified. Appellant argued that Eisfield's initial actions constituted an investigatory seizure of his person and that the seizure was unlawful because Eisfield had no basis to believe appellant committed any crime. Respondent countered, arguing that under the circumstances, Eisfield's actions did not constitute an investigatory seizure because he was merely responding to the accident to see if there were any injuries involved, and thus no articulable basis for suspecting criminal activity was required.

The trial court sustained the revocation of appellant's driver's license, concluding that under the circumstances, "the officer ha[d] a particularized and objective basis for the minimal intrusion of stopping [appellant] to inquire about what happened." The court found that no seizure occurred and that the officer's observations after stopping respondent created probable cause for the officer to believe that respondent had been driving a motor vehicle under the influence of alcohol.

D E C I S I O N

Reviewing the validity of a stop based on given facts is, for an appellate court, a purely legal question. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). The reviewing court must determine whether, as a matter of law, the officer's observations provided an adequate basis for the stop. Id. Here, the underlying facts are not in dispute; therefore, this court's review is de novo.

Not all contact between citizens and police constitutes a seizure. Only when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen has a seizure occurred. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995); see also United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870, 1877 (1980).

For the purposes of Article I, Section 10 of the Minnesota Constitution,

a person has been seized 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.

Cripps, 533 N.W.2d at 391 (citations omitted).

Generally a reasonable person would not believe that he or she has been seized when an officer simply approaches that individual in a public place and begins to ask questions. Id.; State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (holding that a seizure generally does not occur where an officer simply walks up and talks to a person standing in a public place or to a driver sitting in an already stopped car).

Appellant argues that he was seized the moment Eisfield crossed into the wrong lane of traffic with his emergency lights flashing and approached appellant. Appellant claims that he stopped due to Eisfield's show of authority and responded to the officer's questioning because he did not feel free to terminate the encounter and that he was compelled to answer the officer's questions. We find appellant's arguments unpersuasive.

In State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993), the supreme court held that an officer's use of his flashing emergency lights upon seeing a vehicle stopped on the side of the road at night, absent a reason to suspect criminal activity, did not automatically turn the encounter into a seizure under the Fourth Amendment. In that case, the officer observed a van parked on the side of the road at night, and activated his emergency lights and pulled in behind the van. Id. The supreme court held that under the circumstances, the officer's actions

would not have communicated to a reasonable person * * * that the officer was attempting to seize the person. A reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help if needed.

Id. According to the supreme court, the use of flashing lights was not a show of authority, but rather a warning to oncoming traffic to be careful. Id.

Appellant distinguishes Hanson, arguing that a reasonable person would consider crossing over into the opposite lane of traffic and pulling alongside someone walking down the side of the road as using a show of authority to stop and question. We disagree.

We also disagree with appellant's reliance on State v. Day, 461 N.W.2d 404 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990). In Day an officer observed the defendant in an empty parking lot looking at a parked vehicle. Id. at 406. The officer followed defendant to a gas station where he pulled up next to defendant's car, exited his squad car, and summoned defendant to approach him to answer a few questions. Id. The officer was in uniform and armed. Id. at 407. This court held that by requiring defendant to approach him and respond to questioning, the officer performed a seizure under the Fourth Amendment because the incident "was not 'otherwise [an] inoffensive contact between a member of the public and the police.'" Id. (citing Mendenhall, 446 U.S. at 555, 100 S. Ct. at 1877). This case is factually distinguishable from Day. We conclude that under the circumstances here a reasonable person would not have believed Eisfield's actions constituted a show of authority.

It is well established that an officer has not only the right, but also the duty, to make a reasonable investigation of vehicles parked along the roadside so as to offer assistance if needed and to inquire about the physical condition of the persons inside the vehicles; this investigation does not constitute a seizure. Kozak v. Commissioner of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984) (citing Vohnoutka, 292 N.W.2d at 757); see also Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244 (Minn. App. 1986) (holding that it is not a seizure for an officer to approach and talk to a driver seated in a parked vehicle to determine if the driver is in need of assistance). The officer in this case had been informed of an accident occurring near where appellant was walking; it was after midnight; the weather was inclement, and the roads were icy. A reasonable person in similar circumstances would conclude that the officer was merely checking to see if the individual was in the accident or in need of any assistance. Just as an officer has the right and duty to investigate a vehicle parked alongside the roadway to determine if any assistance is required, the same holds true for an individual walking alongside the roadway late at night in the general vicinity of a reported accident. Under the circumstances, Eisfield's actions did not constitute a "seizure" under the Fourth Amendment.

Affirmed.