This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-359

 

 

State of Minnesota,

Respondent,

 

vs.

 

James William Levorson,

Appellant.

 

 

Filed December 10, 2002

Reversed and remanded.

Anderson, Judge

 

Hennepin County District Court

File No. 01078332

 

 

Mike Hatch, Attorney General 525 Park Street, Suite 500, St. Paul, MN 55155; and

 

Wynn Curtiss, Kirsten A. Holseth, Miller, Steiner & Curtiss, 400 Wells Fargo Bank Building, 1011 First Street South, Hopkins, MN 55343 (for respondent)

 

Douglas T. Kans, 1690 Interchange Tower, 6700 South Highway 169, Minneapolis, MN 55426 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge, Peterson, Judge and Anderson, Judge.

 

UNPUBLISHED OPINION

G. BARRY ANDERSON, Judge

 

            Appellant challenges the district court’s denial of his motion to dismiss charges of gross misdemeanor driving while impaired and refusal to submit to chemical testing, arguing that the actions of respondent State of Minnesota constituted an unconstitutional warrantless seizure within the meaning of Article I, Section 10 of the Minnesota Constitution.

Although we conclude a warrantless seizure occurred, an anonymous tip reporting “a suspicious vehicle in [a] parking lot with its engine running” does not provide an adequate basis for reasonable, articulable suspicion that appellant was, had been, or was about to be, engaging in criminal activity.  Accordingly, because the warrantless seizure was not justified, we reverse and remand.

FACTS

            On September 9, 2001, Officers Ledbetter and Meuwissen responded to an anonymous call reporting a “suspicious vehicle” in the parking lot of an apartment complex in Hopkins, Minnesota.  The record indicates that the only description given to the officers was that of a “suspicious vehicle in the parking lot with its engine running.”  No further identifying features of the vehicle, its occupants, or allegations of possible criminal activity, were provided.  The officers had no information as to where, in the lot, the car was; how long the vehicle had been there; how long the engine had been running; whether the vehicle was occupied; or why it appeared suspicious.  In short, the officers had no description of, or details concerning, the vehicle or possible criminal activity of the occupants.     

            Upon arriving in the parking lot, the officers saw appellant’s vehicle, legally parked, with its engine running.  There is no indication from the record that the officers knew the vehicle was occupied.  Ledbetter testified that he and Meuwissen positioned their squad cars behind appellant’s vehicle “so as to block him in.  If he tried to leave, he would not be able to do so.”  Meuwissen, arriving seconds before Ledbetter, approached the driver’s-side window.  Meuwissen noticed a man (appellant) sleeping in the driver’s seat.  Meuwissen knocked on the window and ordered appellant to roll the window down.  Because appellant appeared unable to comply, one of the officers opened the car door and instructed appellant to step out of the vehicle.

            Appellant, after failing several field sobriety tests and refusing to submit to chemical testing, was charged by criminal complaint with gross misdemeanors driving while impaired-second degree, in violation of Minn. Stat. §§ 169A.20, subd. 1(1), 169A.03, subd. 3(1), 169A.26 (2000), and refusal to submit to breath test-second degree, in violation of Minn. Stat. §§ 169A.20, subd. 2, 169A.03, subd. 3(1), 169A.26 (2000).

            Appellant filed a motion to suppress evidence seized on the night of his arrest and sought dismissal of all charges asserting that he was illegally seized in violation of the federal and state constitutions.  Specifically, appellant argued that the officers did not have reasonable, articulable suspicion that he was engaging in criminal activity. 

Appellant’s motion to suppress was denied.  Based on stipulated facts and evidence obtained through testimony pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), he was convicted of second degree driving while impaired.  This appeal followed.

DECISION

I.          Was appellant seized within the meaning of article I, section 10 of the

Minnesota State Constitution?

 

 Whether or not a seizure has been effectuated is a question of law and is, therefore, reviewed de novo.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

Appellant contends that he was seized, within the meaning of article I, section 10 of the Minnesota constitution, when two police officers parked their squad cars intending to prohibit him from moving his car.  The district court agreed with appellant, concluding, as a matter of law, that a seizure had occurred.  This court must now determine if, based on the totality of the circumstances, the police conduct in this case would lead a reasonable person to believe that he is not free to leave.  State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993). 

When a reasonable person, under the circumstances, “would have believed that because of the conduct of the police he was not free to leave,” a seizure has occurred.  In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993).  Even the partial blockage of a car by a police officer is sufficient to amount to a seizure if a person, so blocked, would reasonably believe that he is not free to leave.  Klotz v. Comm’r of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989) review denied (Minn. May 24, 1989).  Where an officer inadvertently blocks a car, however, a seizure may not necessarily occur.  See State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988).  But when it is the officer’s specific intent, or the natural consequence of his actions that a person’s car is prevented from moving, a seizure has resulted.  Id.

It is undisputed, and the district court found, that the officers intentionally parked their squad cars to prevent appellant from moving his vehicle.  This factual finding will not be disturbed on review absent clear error.  See State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996) review denied (Minn. Nov. 20, 1996). 

Respondent asserts that no seizure had occurred because appellant was not conscious when the officers positioned their vehicles behind his car.  Critical to the seizure issue is the objective inquiry as to whether a reasonable person under the circumstances would have believed himself not free to leave because of the officer’s conduct.  E.D.J., 502 N.W.2d at 783.

Conversely, respondent argues that the subjective belief of the individual, as to whether or not he was free to leave, is determinative and because appellant was unconscious a seizure could not possibly have occurred.  This argument is not supported by case law.  See State v. Wiegand, 645 N.W.2d 125, 132 n.7 (Minn. 2002) (holding that a seizure occurs in Minnesota, when a reasonable person would believe himself not free to leave); see also State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (stating that under Minnesota’s constitution a person is seized when, under the circumstances, a reasonable person would not feel free to terminate an encounter with the police); see also State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (recognizing that a person has been seized when, considering the circumstances, a reasonable person would not have believed himself free to terminate the encounter).  Minnesota has followed the objective reasonable person standard since it was first articulated by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870 (1980).  E.J.D., 502 N.W.2d at 782.  Adherence to this standard ensures that the protections of article I, section 10 of Minnesota’s constitution do not vary with the subjective state of mind of the individual.  Cripps, 533 N.W.2d at 391.  In the final analysis, despite respondent’s argument to the contrary, appellant’s subjective state of mind is simply irrelevant to our disposition of this issue.

The warrantless search of an unconscious person will be upheld only when conducted under emergency conditions.  State v. Auman, 386 N.W.2d 818, 820-21 (Minn. App. 1986) review denied (Minn. July 16, 1986).  Examples of emergencies include someone unable to identify himself, and acting “wild” due to ingestion of an unknown drug, and an unconscious individual lying in the street, obviously in need of immediate aid.  Id.  Here, the officers were not operating under emergency conditions when they boxed-in appellant’s car.  There is no indication that the officers were even aware that the car was occupied.

  The inquiry, absent an emergency situation, turns on the nature of the police officers’ conduct.  Dokman v. County of Hennepin, 637 N.W.2d 286, 293 (Minn. App. 2001).  The question is not whether this person actually believed himself to be seized, but rather, based on the conduct of the police, whether a reasonable person, under the circumstances, would have believed himself not free to leave.  E.D.J., 502 N.W.2d at 783.  It can be fairly stated that a reasonable person would not feel free to leave when two armed, uniformed police officers intentionally position their marked squad cars so as to impede any such movement.

Appellant was seized within the meaning of article I section 10 of the Minnesota Constitution.  Therefore, we affirm the district court’s ruling on this issue.

 

II.         Was the warrantless seizure of appellant supported by an objective, articulable basis?

 

Whether an articulable basis exists to justify a temporary warrantless seizure for investigative purposes is a question of law and is, therefore, reviewed de novo.  State v. Rochefort, 631 N.W.2d 802, 805 (Minn. 2001).

            In order to conduct an investigative seizure, a police officer must be able to articulate some objective manifestation that the person seized has been, is presently, or is about to be, engaging in criminal activity.  Britton, 604 N.W.2d at 87.  When properly supported, an anonymous tip can provide the basis to justify an investigative seizure.  See Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 554 (Minn. 1985).  Although an anonymous citizen tipster can be presumed reliable, the tip must be sufficiently specific, or independently corroborated and viewed in totality with the corroborating evidence.  Id. at 554-55.   For an anonymous tip to provide an adequate basis to allow a warrantless seizure, it must be specific.  Frank v. Comm’r of Pub. Safety, 348 N.W.2d 574, 576 (Minn. App. 1986).

In order for an officer to have specific and articulable facts sufficient to warrant an intrusion based on information from a citizen informant, (1) the police must know something about the informant indicating that he is truthful, and (2) there must be a factual basis for the informant’s knowledge.  Olson, 371 N.W.2d at 556(stating that the police did not have specific articulable facts sufficient to warrant an intrusion where nothing was known about the informant or about what led him to believe that the driver was “possibly” drunk).  If the police choose to investigate solely on the basis of a tip, the anonymous caller must provide some specific and articulable facts to support a bare allegation of criminal activity.  Id.  Here, there was no allegation of criminal activity at all.

Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.

 

Id., (quoting Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1923-24 (1972)).  Such was the tip in this case.

It is true that the anonymous tip was partially corroborated when the officers found a parked vehicle in the parking lot with the engine running, as reported by the tipster.  But, there was no allegation of criminal activity, actual or potential, by the anonymous caller and there was no allegation that the vehicle was occupied by anyone, suspicious or otherwise.  Nor did the officers observe any criminal activity, or anything else that supported a reasonable suspicion that criminal activity was afoot, upon arriving in the parking lot.  Indeed, Ledbetter testified that appellant’s car was legally parked.

Armed only with the knowledge that there was a car with its engine running in a particular parking lot, the officers seized appellant.  There is nothing in the record to establish a reasonable suspicion that criminal activity was afoot, or that an emergency situation existed.  Unless we are prepared to adopt a per se rule that a parked car with a running engine is suspicious enough to justify a warrantless seizure, the officers were not justified in seizing appellant based on the knowledge they possessed.  We decline to adopt such a rule.  A police officer may conduct a warrantless temporary seizure of an individual only when there exists reasonable suspicion that criminal activity is afoot, or if an emergency situation exists.  See Britton, 604 N.W.2d at 87; see also Auman, 386 N.W.2d at 820-821.  Neither circumstance was present here.

Reversed and remanded.