A05-406

State of Minnesota,

Respondent,

vs.

Samuel Eubanks, Jr.,

Appellant.

Filed September 27, 2005

Affirmed

Hudson, Judge

Clay County District Court

File No. T1-04-3595

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Lisa N. Borgen, Clay County Attorney, Jenny M. Samarzja, Assistant County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, Minnesota 56561-0280 (for respondent)

Beverley L. Adams, Serkland Law Firm, 10 Roberts Street, P.O. Box 6017, Fargo, North Dakota 58108-6017 (for appellant)

Considered and decided by Hudson, Presiding Judge; Wright, Judge; and Worke, Judge.

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

HUDSON, Judge

Appellant Samuel Eubanks challenges his conviction of fourth-degree DWI (driving with an alcohol concentration of .10 or more), arguing that the district court erred by refusing to suppress evidence that was obtained as a result of an illegal seizure. Because appellant was not seized, we affirm.

FACTS

On May 23, 2004, a police officer arrested and charged appellant with fourth-degree driving under the influence in violation of Minn. Stat. § 169A.20, subd. 1(1) (2002), and fourth-degree DWI (driving with an alcohol concentration of .10 or more) in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002). Appellant pleaded not guilty and moved the district court to suppress the evidence related to the charges, arguing that the officer unconstitutionally seized appellant and lacked probable cause to administer field sobriety tests. On August 9, 2004, the district court conducted an evidentiary hearing at which the witnesses testified to the following undisputed facts.

On May 23, 2004, Officer Asfeld and his partner, Officer Carlson, were dispatched to the area of 424 11th Street North around 1:40 a.m. An anonymous caller reported that two African-American males were arguing outside at this location. The officers went to the area but did not observe anyone. Approximately ten minutes later, dispatch called again to report the same information. The officers returned to the location, where they saw one man in the front yard. Asfeld arrived in uniform, but he did not activate his squad car’s overhead lights. Asfeld initially approached the male in the yard, and then realized that another man was sitting in the driver’s seat of a running vehicle that was parked in the driveway. The driver’s window was rolled down. The officers did not observe the males arguing.

Another officer, Borkenhagen, arrived on the scene and made contact with the male standing in the yard. Asfeld walked up to the male in the vehicle, identified the male as appellant, and explained why the officers were there. Appellant stated to Asfeld that the male in the yard was his brother and that they had been talking. Appellant denied having argued with his brother.

Asfeld believed that appellant had consumed alcohol because appellant’s eyes were watery and he smelled of alcohol. Asfeld inquired whether appellant had been drinking. Appellant stated that he had consumed three beers and some shots and had been at a bar. Asfeld then asked appellant to perform field sobriety tests. Appellant performed the tests, failing each one. Appellant’s preliminary breath test read .124. Asfeld subsequently arrested appellant.

The district court denied appellant’s motions to suppress evidence. Following a trial, the jury found appellant guilty of fourth-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(5) (2002).[1] This appeal follows.

D E C I S I O N

“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). When there is no factual dispute, “a reviewing court must determine whether a police officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure.” Id.

Both the United States Constitution and the Minnesota Constitution protect individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A seizure occurs “when the 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)). In determining whether a seizure has occurred, the court determines whether a police officer’s actions would lead a reasonable person under the same circumstances to believe that he or she was not free to leave. State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993). Whether a seizure has occurred depends on the totality of the circumstances, as applied to a reasonable person. Harris, 590 N.W.2d at 98.

A person generally is not seized merely because a police officer approaches him [or her] in a public place or in a parked car and begins to ask questions. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980). On the other hand, this court has found “the use of a squad car to block a parked vehicle generally constitutes a seizure.” State v. Lopez, 698 N.W.2d 18, 22 (Minn. App. 2005); see, e.g., Klotz v. Comm’r of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989), review denied (Minn. May 24, 1989); State v. Sanger, 420 N.W.2d 241, 242 (Minn. App. 1988); but see Erickson v. Comm’r of Pub. Safety, 415 N.W.2d 698, 701 (Minn. App. 1987) (concluding a seizure did not occur when two police officers inadvertently blocked defendant’s vehicle in an effort to park as near to the entryway of a building as possible). Additionally, whether the officer wore a uniform, activated the squad car’s siren or lights, or requested identification, are factors that may demonstrate a show of force. See, e.g., State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990) (concluding that a seizure occurred where a police officer, who was in uniform and armed, parked a squad car next to appellant’s parked vehicle and summoned appellant to approach the officer’s squad car, provide identification, and answer questions), review denied (Minn. Dec. 20, 1990); Sanger, 420 N.W.2d at 242 (concluding that a seizure occurred where an officer blocked appellant’s parked vehicle with a squad car, activated his squad car’s lights and honked its horn).

Appellant argues that he was seized when a uniformed officer, who arrived in a squad car, approached him when he was sitting in his vehicle in his brother’s driveway. Additionally, appellant argues that in his rearview mirror he saw the officer pull up and park behind him. The state denies that the officer seized appellant when he approached appellant in his vehicle in order to assess the situation. The state notes that the officer did not activate his siren or his lights and did not block appellant’s vehicle from moving.

Here, based on the totality of the circumstances, Officer Asfeld’s actions would not lead a reasonable person to believe that he was not free to leave. Appellant argues that the officer parked behind his vehicle, suggesting that appellant’s movement was blocked. But appellant cites the trial transcript in support of this argument, rather than the relevant evidentiary hearing transcript. Neither appellant nor Officer Asfeld testified at the evidentiary hearing that Officer Asfeld blocked appellant’s movement by parking his squad car behind appellant’s parked vehicle. Indeed, the officer was unaware of appellant’s presence when he arrived at the location. Neither did the officer activate his squad car’s lights or siren. Instead, the officer merely approached appellant, who was in his parked vehicle, to ask questions. Thus, the officer’s actions did not constitute a Fourth Amendment seizure.

Because the officer had a lawful basis to question appellant, the officer had reasonable articulable suspicion to request that appellant take a field sobriety test once the officer observed sufficient indicia of intoxication. See State, Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981) (indicating that a field sobriety test is an intrusion that must be justified by a reasonable, articulable suspicion that the driver is intoxicated); see also State v. Driscoll, 427 N.W.2d 263, 265–66 (Minn. App. 1988) (stating that articulable suspicion includes the observation of sufficient indicia of intoxication). Here, the officer smelled alcohol, observed appellant’s watery eyes, and learned that appellant had recently consumed beers and shots of alcohol. Finally, the officer had probable cause to arrest appellant after appellant failed the field sobriety tests. See Davis v. Comm'r of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993) (noting that “[p]robable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver was under the influence”), aff’d on other grounds, 517 N.W.2d 901 (Minn. 1994).

Because the officer’s actions did not constitute a seizure, we do not reach appellant’s alternative argument that the alleged seizure was not supported by reasonable, articulable suspicion.

Affirmed.

[1] The state dismissed count 1, a violation of Minn. Stat. § 169A.20, subd. 1(1) (2002), before trial.