This opinion will be unpublished and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
C5-98-126

State of Minnesota,
Respondent,

vs.

Lance Marvin Glauvitz,
Appellant.

Filed July 28, 1998
Affirmed
Schumacher, Judge

Brown County District Court
File No. K697173

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Roger H. Hippert, Assistant New Ulm City Attorney, Post Office Box 214, New Ulm, MN 56073-0214 (for respondent)

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

Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Holtan, Judge.*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Lance Marvin Glauvitz challenges his conviction for driving while under the influence, arguing that the trial court erred in refusing to suppress evidence. We affirm.

FACTS

At approximately 2:23 a.m. on February 20, 1997, Officer Jeff Hohensee responded to a citizen's complaint about a loud car alarm outside his house in New Ulm, Minnesota. The complainant told Hohensee that he saw a lone male occupant walking away from a vehicle northbound on Jefferson Street. When Hohensee arrived on the scene, he observed a black Chevrolet Tahoe in a snowbank. Hohensee also noticed that the Tahoe had slid into a parked motor vehicle before hitting the snowbank. Hohensee contacted Officers Jeremy Reed and Dean Barstad and instructed them to look for a suspect walking north on Jefferson Street. A vehicle registration check revealed Glauvitz as the vehicle's owner.

Approximately six blocks from the accident, Reed noticed a man walking north on Jefferson Street. Three times Reed ordered the man to stop before he complied. Reed asked the man where he was going and the man told him, "Home." Reed asked where he had been, and the man indicated, "Home." Reed then asked what kind of vehicle he drove and he said a black Chevy Tahoe, which was parked at home. Reed suspected that this individual had been drinking because he could smell a strong odor of alcohol on the man's breath, the man's speech was slurred, and he had trouble standing up. The man provided a driver's license identifying himself as Glauvitz. Reed then asked Glauvitz to be seated in the squad car.

When Barstad arrived, he began questioning Glauvitz while he was seated in the squad car. Once again, Glauvitz admitted that he was the owner of a Chevy Tahoe, only this time he stated that the vehicle was parked four blocks to the south. He also told Barstad that he had been at a bar that evening and that he left his vehicle because he thought he should not be driving. To this point, the officer had not read Glauvitz his Miranda rights.

Shortly thereafter, Hohensee directed Reed to place Glauvitz under arrest and read him his Miranda rights. The Intoxilyzer test registered Glauvitz's alcohol concentration at .19. Glauvitz was charged with three counts of driving while under the influence. At the omnibus hearing, Glauvitz argued for suppression of admissions and statements because he was seized in violation of his Fourth Amendment rights. The trial court denied Glauvitz's motions. After submitting the case to the court on stipulated facts, Glauvitz was found guilty of driving, operating, or being in physical control of a motor vehicle with an alcohol concentration of .10 or more in violation of Minn. Stat. § 169.121, subds. 1(d) and 3(c)(1) (1996).

D E C I S I O N

When reviewing pretrial orders suppressing evidence, this court may independently review the facts and determine, as a matter of law, whether the trial court erred in suppressing the evidence. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

1. As a general rule, officers may not search or seize an individual without an arrest warrant, search warrant, or probable cause to arrest. Wold v. State, 430 N.W.2d 171, 174 (Minn. 1988). One exception to this general rule allows officers, under certain circumstances, to stop or seize an individual "for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Id. (quoting Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968)).

There is no dispute that Glauvitz was seized. Reed exited his squad car and ordered Glauvitz to stop. The show of authority by Reed created a situation that gave Glauvitz reason to believe that he was not free to leave. See In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993) (finding "seizure" once officer orders suspect to stop).

Next, this court must determine whether Reed articulated sufficient facts justifying a seizure. For an investigatory stop or seizure to be lawful, the police officer must be able to point to specific, articulable facts that would lead to a reasonable suspicion that an individual is or may be engaged in criminal activity. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2135 (1993); Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880. Based upon all the circumstances, the officer must have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981); State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989).

The factual basis for a stop may arise from information supplied by another person and does not necessarily need to come from the officer's personal observations. State v. Warren, 404 N.W.2d 895, 896 (Minn. App. 1987). A valid stop may be based on:

a reliable informant's description of the vehicle, its location, a report of specific facts concerning criminal activity, and the officer's confirmation of the description and location of the vehicle.

Id. If a private citizen supplies the information, officers presume it is reliable. Id. at 896.

Here, officers received a call from a citizen informant that a black Chevy Tahoe was parked in a snow bank and a lone male individual was walking away from the scene northbound on Jefferson Street. Hohensee confirmed the description of the vehicle, its location, and the criminal activity that had taken place. Reed spotted Glauvitz walking north on Jefferson, six blocks away from the accident and minutes after the report. Reed also noticed Glauvitz trying to run down Jefferson Street, which was virtually deserted because it was 2:30 a.m. on a cold, February morning. Based on the totality of the circumstances, Reed had sufficient individualized suspicion to justify a seizure.

2. Glauvitz also argues that the statements he made before he was placed in the squad car, as well as the statements he made while he was in the squad car, must be suppressed because he was not read his Miranda rights.

Miranda requires suppression "only when both custody and interrogation are present and proper warnings are not given." State v. Seekon, 392 N.W.2d 624, 627 (Minn. App. 1986), review denied (Minn. Oct. 17, 1986). Questioning a motorist who has been detained as a result of a traffic stop, however, is not the equivalent of a custodial interrogation and does not require a Miranda warning. Berkemer v. McCarty, 468 U.S. 420, 440 104 S. Ct. 3138, 3150 (1984); State v. Herem, 384 N.W.2d 880, 882 (Minn. 1986). Officers conducting Terry stops are entitled to ask a moderate number of questions to determine the suspect's identity and to dispel the officers' suspicions. State v. Rosse, 478 N.W.2d 482, 485 (Minn. 1991).

In this case, the questions Reed asked fall within the permissible limits of a routine Terry stop. Reed asked Glauvitz where he had been and where he was going. Reed then asked what type of vehicle Glauvitz drove. Reed asked all these questions to either confirm or deny that Glauvitz was in fact the owner of the Tahoe.

The lawfulness of the situation, however, changed when Glauvitz was placed in the back of the squad car. Standing alone, the fact that a suspect is placed in the back of a patrol car does not transform an ordinary traffic stop into a custodial interrogation. Id. Yet, case law demonstrates that a very fine line exists between when the permissible stop becomes the equivalent of an arrest. The focus being whether the facts and circumstances of each particular case are such that a "reasonable person would believe that [he] was in custody and was being restrained to a degree associated with a formal arrest." Id. at 486.

Glauvitz was locked in the back of the squad car and by Barstad's own admission was not free to leave. There were two police cars surrounding the area where Glauvitz was walking, and the two officers were armed and in uniform. Glauvitz was asked the same questions, once by Reed outside the car and again by Barstad while seated in the car. The answers that Barstad received were far more incriminating than the answers that Reed received. Because a reasonable person in Glauvitz's situation would have believed that he was in custody, Glauvitz was entitled to a Miranda warning before being questioned by Barstad.

Nevertheless, the admission of the statements made by Glauvitz to Barstad constitutes harmless error in light of the overwhelming evidence of Glauvitz's guilt. State v. Munson, 380 N.W.2d 229, 232 (Minn. App. 1986). Even without the statements, the following incriminating evidence remains: (1) Glauvitz was picked up within minutes of the report, six blocks away from the accident; (2) he was running away from Reed; (3) he was the only pedestrian on the street at that hour; (4) he showed signs of being intoxicated; (5) he admitted owning a black Chevy Tahoe; (6) he was the registered owner of the vehicle involved in the accident; and (7) his alcohol concentration was .19.

Affirmed.