This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Darla Lee Jensen,


Filed April 14, 1998

Reversed and remanded

Harten, Judge

Freeborn County District Court

File No. K8-97-687

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

David J. Walker, Assistant Freeborn County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007 (for appellant)

John M. Stuart, State Public Defender, 2829 University Avenue S.E., Ste. 600, Minneapolis, MN 55414 (for respondent)

Stephen R. Erickson, 336 South Broadway, Albert Lea, MN 56007 (for respondent)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Amundson, Judge.



The state appeals from a district court pretrial order suppressing evidence derived from the encounter of police with respondent that resulted in a prosecution for DWI and other incidental traffic counts. We reverse and remand.


At 3:30 a.m. on April 9, 1997, in the City of Albert Lea, Lieutenant Jeffrey Storm of the Albert Lea Police Department was driving an unmarked squad car when he observed a station wagon on Seventh Street that he decided to follow. The station wagon proceeded on Seventh for a few blocks, turned onto Madison Avenue, drove for one block, and turned onto Oregon Avenue where it then turned into the private driveway of the Calvin Attig residence. The vehicle parked and its lights were extinguished but no one emerged from it. Storm did not observe the driver of the car commit any traffic infractions while he followed it.

Storm parked his squad so as to block the entrance to the driveway.[1] When he shined his spotlight on the rear of the car to read its license plate, he noticed a lone female in the car. The occupant made no effort to emerge from the car. Strom was familiar with the residence and knew that it was owned by Attig. But he normally saw a van, not a station wagon, parked in the driveway.

Storm backed his vehicle away from the driveway entrance and radioed for a license check, but he received no information because police computers were down. Strom then exited his squad and approached the parked station wagon. Less than one minute had elapsed since Strom unblocked the driveway entrance. Strom recognized the driver, respondent Carla Lee Jensen, from prior contacts, and believed that her driver's license had been cancelled. He spoke with her and smelled alcohol on her breath. Criminal charges thereafter ensued against Jensen.

Jensen moved to suppress evidence obtained by Strom, alleging that it was the product of a stop that violated the prohibition on unreasonable searches and seizures, as provided by the Fourth Amendment to the U.S. Constitution and Article I, § 10 of the Minnesota Constitution. At the omnibus hearing, the district court (1) determined that Strom's interaction with Jensen at the Attig residence was a stop subject to search and seizure protections, (2) found that Strom did not articulate good and sufficient reason for the stop, (3) held that the stop was unreasonable, and (4) suppressed all evidence obtained incident to the encounter. This appeal resulted.


Normally, when the state appeals from a pretrial decision of the trial court suppressing evidence, the state must demonstrate clearly and unequivocally that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). However, when reviewing a pretrial order suppressing evidence where the facts are undisputed and the district court's decision is a question of law, we may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed. Id.

1. The U.S. Constitution and the Minnesota Constitution both provide that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *." U.S. Const. amend. IV; Minn. Const. art. I, § 10. For the purposes of this decision, we assume without deciding that Strom's encounter with Jensen was a "seizure" subject to constitutional protections.

To establish that a seizure is reasonable, and thus in compliance with constitutional requirements, the officer must point to specific and articulable facts which, taken together with rational inferences from those facts, create a reasonable suspicion of criminal activity. State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990). In determining whether a seizure is reasonable, a court examines the totality of the circumstances. State v. Fay, 488 N.W.2d 322, 324 (Minn. App. 1992).

The state argues that the facts here point more cogently to a reasonable suspicion of illegal activity than did the facts in State v. Petrick, 527 N.W.2d 87 (Minn. 1995), in which the supreme court ruled that a seizure was reasonable. In Petrick, at about 1:10 a.m., a police officer made a U-turn with his squad car just after a vehicle passed him going the opposite direction. Within seconds, the vehicle turned into the first available driveway. The driver shut off the vehicle's lights as soon as he entered the long driveway and left them off as he proceeded. The officer suspected that the driver was trying to elude him, and drove into the driveway, blocking the vehicle's egress. The officer exited his car and approached to speak with the driver. DWI charges followed. Id. at 87-88.

The Petrick court found that defendant's activity in turning into the first possible driveway and immediately turning off the car's headlights while proceeding up the long driveway allowed the police officer to reasonably infer that the defendant wanted to evade him because of involvement in some illegal activity. Id. at 89.

Here, Storm knew homeowner Calvin Attig, and believed that Attig normally did not have a station wagon parked in his driveway. It was 3:30 a.m., the vehicle was parked, its lights were extinguished, and nobody got out of it. The state argues that Strom had a reasonable suspicion of criminal activity.

Jensen attempts to distinguish Petrick, alleging that her conduct did not create a reasonable belief that she was engaging in criminal activity or attempting to evade the police officer. She notes that Strom did not see her commit any traffic infractions, or otherwise drive in a suspicious manner. She also adds that unlike the driver in Petrick, she did not drive into the first available driveway, nor did she immediately turn off her headlights when she entered the driveway, both of which combined to create the officer's suspicion of evasion in Petrick.

In State v. Sanger, 420 N.W.2d 241 (Minn. App. 1988), we found that the following facts did not give rise to a reasonable suspicion of criminal behavior: a police officer saw an automobile that had fogged windows, an open sunroof, and people moving around in the front and back seats parked at a curb in a residential area at 11:30 p.m. We held that the seizure was based on mere whim or caprice. Id. at 244.

In Day, we found no reasonable suspicion of criminal behavior or attempt to evade a police officer. 461 N.W.2d at 407-08. There a police officer noticed two individuals, the defendant and his female companion, examining a pickup truck in a parking lot. They then got into a car and drove away. The officer followed them approximately ten blocks to a gas station. He did not observe any illegal behavior. As the defendant prepared to pump gas into his car, the officer pulled his squad car alongside of defendant's car. The officer exited his car and gestured for the defendant to approach him. Id. at 406. The officer did not see any traffic violations, or any criminal activity in the parking lot when the defendant was looking at the pickup truck. Also, there was no evidence that the defendant ever saw the officer prior to the encounter, such that there was no basis for evasion. Id. at 407.

In United States v. Kerr, 817 F.2d 1384 (9th Cir. 1987), the Ninth Circuit found that the facts did not give rise to a reasonable suspicion of criminal behavior. A police officer saw an individual loading cardboard boxes into a car at mid-afternoon in a rural area where an unusual number of homes had been burglarized. The court noted that the officer did not know the identity of the occupant of the residence, and did not know what kind of vehicles the residents drove. Id. at 1387.

Having examined pertinent caselaw, we agree with the state that, under the totality of the circumstances, Jensen's activity created sufficient suspicion of criminal activity to render reasonable a brief investigative stop by a police officer. These circumstances were the 3:30 a.m. entry of a strange car into a driveway of a residence (known to the officer usually to harbor a van) where the lights of the car were turned off but nobody got out of the car. These facts create at least as much suspicion as did the facts in Petrick. Restated in terms of police duty, we believe that under these facts, Strom had a duty to investigate the Jensen vehicle.

2. Jensen is awarded $2,000 for attorney fees and $237.59 for briefing expenses incurred on appeal. See Minn. R. Crim. P. 28.04, subd. 2(6) (allowing reasonable fees and costs on pretrial appeals).

We reverse the order suppressing evidence and remand for further proceedings.

Reversed and remanded.

[1] The parties dispute whether Storm pulled into the driveway behind the car or pulled across the driveway entrance. Resolution of this dispute is unnecessary for our analysis.