This opinion will be unpublished and

may not be cited except as provided by

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




Gregg Duane Brusehaver, petitioner,



Commissioner of Public Safety,


Filed October 6, 1998


Randall, Judge

Hennepin County District Court

File No. IC 475244

Harlan Goulett, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Hubert H. Humphrey III, Attorney General, Sean R. McCarthy, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Peterson, Judge.



Appellant argues that the district court erred in sustaining revocation of his driver's license based on a referee's determination that the arresting officer's seizure of appellant while he was sitting in his parked vehicle was justified by specific, articulable facts. We affirm.


At approximately midnight on August 31, 1997, Richfield police officer David Salter was driving on 12th Avenue when he observed a car stop on 74th Street and turn off its headlights just before, or just as, it stopped. He testified that his attention was drawn to the car because it was midnight, it was a residential area, and cars did not park in that area very often. Officer Salter drove around the block, and when he returned to where the car had been parked, the car was gone. He then noticed a car being driven without its headlights on about two blocks away. Officer Salter called for assistance, but none of the officers could locate the car. Officer Salter called the search off and was driving on 11th Avenue towards an unrelated call when he observed a car parked on 11th Avenue with its headlights off. Officer Salter testified that as he used his spotlight on the car, he noticed the occupant, later determined to be appellant Gregg Brusehaver, "slouched down" as he drove past. Officer Salter turned around and stopped behind the car. At some point, two other police officers also arrived. Officer Salter approached the car and told Brusehaver to put his hands where Officer Salter could see them. Officer Salter then noted that the vehicle smelled of alcohol. According to Officer Salter, Brusehaver admitted that he had just left a bar and said that when he saw the squad car he turned off his lights because he thought he had had too much to drink. After sobriety tests were taken, Brusehaver was arrested for driving while under the influence of alcohol.

At a hearing before a Hennepin County referee, Brusehaver contested only whether the police officer's initial seizure was legal. Brusehaver testified that he had not driven with his lights off and denied slouching as Officer Salter drove by his car. He admitted that he had been drinking and that he "wasn't feeling that [he] should be behind the wheel." He also stated, "I was trying to avoid any kind of trouble with the law at all and that's why [I] parked." The referee determined that the officer's actions were justified and supported by articulated facts. The referee recommended sustaining the revocation of Brusehaver's license, and the district court sustained the revocation in an order issued February 12, 1998. Brusehaver now appeals.


Whether a stop[1] is valid is a question of law based on given facts. State v. Hjelmstad, 535 N.W.2d 663, 664 (Minn. App. 1995). A reviewing court need not defer to the district court's legal decisions. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). The district court's findings of fact will not be set aside on appeal unless they are clearly erroneous, and deference must be given to the district court's opportunity to judge the witnesses' credibility. Minn. R. Civ. P. 52.01. "The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court." Id.

A driver in an already stopped vehicle is not seized when an officer approaches the car and speaks with the driver. LaBeau v. Commissioner of Pub. Safety, 412 N.W.2d 777, 779 (Minn. App. 1987). A seizure occurs "'when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)). A brief investigatory stop, or seizure, does not require probable cause, "only reasonable suspicion of criminal activity." State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). The stop must, however, be based on "'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion,'" and must not be based on "mere whim, caprice or idle curiosity." Id. at 921-22 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880). A police officer may base a decision to make an investigatory stop on "'all the circumstances'" and may make "'inferences and deductions that might well elude an untrained person.'" Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)).

These circumstances include the officer's general knowledge and experience, the officer's personal observations, information the officer has received from other sources, the nature of the offense suspected, the time, the location, and anything else that is relevant.


Here, the referee did not issue any written findings but made the following oral findings at the hearing's conclusion:

I'm specifically going to find that the officer was able to articulate certain facts that justified his approaching the vehicle and I think it's arguable that, and the officer acknowledged that at the point at which he told the petitioner to keep his hands visible and, particularly, in light of the fact that there apparently were two other squad cars present, that the petitioner didn't feel that he could leave. Nonetheless, I think the officer's behavior was valid and, thereafter, the officer noticed the odor of alcohol and that justified his proceeding further and leading up to the arrest.

There is no question that Officer Salter "seized" Brusehaver at the moment he told Brusehaver to put his hands where they could be seen.[2] At that point, Officer Salter was required to have a reasonable suspicion of criminal activity based on "'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant[ed] that intrusion.'" Pike, 551 N.W.2d at 921-22 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880.

Driving a vehicle with its headlights off between sunset and sunrise is a misdemeanor. Minn. Stat. §§ 169.48, subd. 1(1), 169.468, subd. 4 (1996). Officer Salter could have reasonably suspected Brusehaver of criminal activity based on a reasonable belief that Brusehaver was the same driver he had seen minutes before driving with his headlights off. Officer Salter testified that he believed Brusehaver's vehicle was the same vehicle he had earlier observed stopped on a different street, which disappeared before he had time to drive around the block, and the same vehicle he observed driving with its lights off. He explained the basis for this belief at the hearing:

Respondent's Attorney: Okay. And did you have any reason at all to believe that that was the same vehicle as you had seen earlier?

Officer Salter: You know, I think we're not talking about a time period here of hours, we are talking about a time period of minutes and the way I looked at it was that this is very unusual activity. Yes, I didn't know that the car I saw parked and slouched down in the seat was the same car that I saw earlier within minutes, but with the totality of the circumstances --

* * * *

Respondent's Attorney: Did you think it was the same car?

Officer Salter: Yes, I did.

There is no requirement that an officer's suspicions be accurate; the only requirement is that they be reasonable. See State v. Johnson, 392 N.W.2d 685, 687 (Minn. App. 1986) (holding mistaken identity does not make stop invalid if officer acted reasonably).

The record supports the referee's findings, and the referee did not err in concluding that Officer Salter's seizure of Brusehaver was justified by specific, articulable facts. Thus, the district court did not err in sustaining the revocation of Brusehaver's driver's license.


[1] Although both parties refer to Officer Salter's action as a seizure, an investigative seizure is "commonly referred to as an investigative stop." State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997).

[2] Brusehaver argues in his brief that the timing of the seizure is a point of contention. Respondent concedes, however, that the seizure occurred when Officer Salter told Brusehaver to place his hands where Officer Salter could see them.