This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1875

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Alan Schuler,

Appellant.

 

 

Filed August 29, 2006

Affirmed

Halbrooks, Judge

 

 

Carver County District Court

File No. CR-03-682

 

 

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

 

Michael A. Fahey, Carver County Attorney, Michael D. Wentzell, Assistant County Attorney, Carver County Courthouse, 604 East Fourth Street, Chaska, MN 55318  (for respondent)

 

James L. Berg, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)

 

 

 

            Considered and decided by Minge, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s order concluding that the officer had reasonable, articulable suspicion to conduct a limited investigatory inquiry.  We affirm.

FACTS

            In the early morning hours of September 18, 2003, Officer Joshua Lawrenz parked his squad car in a Rainbow Foods parking lot in order to issue parking citations.  The officer observed a vehicle driven by appellant Jeffrey Schuler enter the parking lot at approximately 2:30 a.m. and park next to another vehicle.  There were two people visible in the Schuler vehicle.  Officer Lawrenz continued writing citations for 20-30 minutes and then observed that appellant’s vehicle was still there; in the interim, the officer had not observed anyone exiting the vehicle.  This aroused his suspicions.

            As a result, Officer Lawrenz drove to a point about 50 feet from appellant’s vehicle, stopped at a right angle to the passenger’s door, and activated the squad car’s “stage 1” lights.  At the time he started to approach the vehicle, the officer was unable to see the passenger.  When he got closer, he saw that the passenger was slumped down in the seat with her feet on the dashboard.  Appellant lowered the passenger window in order to converse with the officer, and the officer immediately detected a strong odor of alcohol.  Upon speaking with appellant, the officer also observed other indicia of intoxication.  Appellant stated that he had consumed three beers and subsequently failed field sobriety tests. 

            The officer arrested appellant, and respondent State of Minnesota charged him with two counts of third-degree driving while impaired.  Appellant contested his driver’s-license revocation at an implied-consent hearing, based on the validity of the stop and seizure.  The district court denied appellant’s motion to rescind his driver’s-license revocation, finding that there was no stop or seizure.  Appellant also challenged the stop and seizure at a contested omnibus hearing.  The district court determined that there was no stop because appellant’s vehicle was stopped before the officer approached it and that it was reasonable, based on the time of day and the vehicle’s location, for the officer to make a limited inquiry.  As a result, the district court denied appellant’s motion to dismiss.

            Following the omnibus hearing, the parties agreed to submit the issue of guilt to the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), reserving appellant’s right to challenge the validity of the stop and seizure on appeal.  The district court found appellant guilty of third-degree driving while impaired.  This appeal follows.

D E C I S I O N

            Appellant contends that the officer’s activation of the stage 1 lights before approaching appellant’s vehicle constituted an illegal seizure because the officer did not have reasonable, articulable suspicion of criminal activity.  The state contends that the officer had reasonable, articulable suspicion based on appellant’s location, the time of day, and the officer’s concern that the vehicle occupants could be planning a burglary or theft. 

We agree with the district court that there was no stop in this case.  There is no dispute that appellant had been parked for 20-30 minutes.  Under the Minnesota Constitution, “a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).  This court has held that it is not a seizure when a police officer “walks up and talks to a driver sitting in an already stopped car.”  State v. Plut, 400 N.W.2d 377, 379 (Minn. App. 1987).  An officer’s approach of a stopped car may constitute a seizure if done in conjunction with coercive police behavior; but use of an officer’s squad car’s flashing lights may serve purposes other than a show of authority, such as warning oncoming motorists to be careful.  State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993).  In this case, the officer testified that, once he activated his stage 1 lights, appellant was seized and not free to leave the area.  But we conclude that it is not necessary to reach this issue because Officer Lawrenz had reasonable, articulable suspicion to justify his approach of appellant’s vehicle. 

An investigatory inquiry of a vehicle is permissible if it is based on a reasonable, articulable suspicion of criminal activity.  Marben v. State Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980).  A district court’s determination of reasonable suspicion is a legal conclusion subject to de novo review.  State v. Britton,604 N.W.2d 84, 87 (Minn. 2000).  We review the findings of fact that support the legal conclusion “for clear error, giving due weight to the inferences drawn from those facts by the district court.”  Id. (quotation omitted).

Here, appellant’s vehicle was parked in a commercial lot, next to a vacant car, at 2:30 a.m., for 20-30 minutes when all of the adjacent businesses were closed.  The officer testified that his training and experience caused him to be concerned that appellant may be “car prowling” or preparing to break into the vehicle parked next to it.  The officer also believed that appellant might have been planning a burglary or theft.  Further, the officer saw only one occupant in the vehicle at the time he parked his squad car 50 feet away from appellant’s vehicle and started walking toward it as opposed to the two people he first saw in the vehicle.

Because we conclude that the officer had reasonable, articulable suspicion to conduct an investigatory inquiry, we affirm.

            Affirmed.