This opinion will be unpublished and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

A06-388

 

State of Minnesota,

Appellant,

 

vs.

 

Steven Frank Just,

Respondent.

 

Filed September 12, 2006

Reversed

Halbrooks, Judge

 

Traverse County District Court

File No. T9-05-280

 

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

 

Matthew P. Franzese, Traverse County Attorney, 218 Third Avenue East, Suite 102, Alexandria, MN 56308 (for appellant)

 

Mark D. Nyvold, Special Assistant State Public Defender, 332 Minnesota Street, Suite W‑1610, St. Paul, MN 55101 (for respondent)

 

            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

The state appeals from a pretrial order dismissing a complaint charging respondent with driving while under the influence and with possession of drug paraphernalia.  The state argues that the district court clearly erred by ruling that a police officer improperly stopped and seized respondent without reasonable, articulable suspicion when, after respondent pulled off the highway, the officer followed him and activated his emergency lights before respondent had come to a complete stop.  The state also argues that the district court improperly applied a probable-cause standard when evaluating the justification for the stop.  Because we conclude that respondent’s driving behavior provided a reasonable, articulable suspicion for the stop, we reverse.

FACTS

            Shortly after midnight on September 24, 2005, Deputy Trevor Wright saw a car make a “sharp turn” onto Highway 28 in a “sudden jerkish manner,” right in front of his squad car.  After observing the car weave within its lane “a couple of times,” Deputy Wright activated his squad car’s video camera.  The camera recorded the car weaving “a few more times.”

As Deputy Wright followed the vehicle, he observed it touch the fog line and jerk from the centerline, without crossing either line.  Deputy Wright interpreted the jerking as an overcorrection for the weaving.  Deputy Wright also noticed that the car was traveling under the speed limit (40 miles per hour in a 45-miles-per-hour zone).  All of the driving conduct Deputy Wright observed took place within approximately one-half mile.

            Before Deputy Wright pulled the vehicle over, the driver, later identified as respondent Steven Just, turned on his right-turn signal and pulled onto the shoulder of the highway.  Thinking that Just might be under the influence, Deputy Wright pulled up behind him.  As Just was slowing down, but before he had come to a complete stop, Deputy Wright activated his squad car’s flashing lights as a precaution, to alert oncoming traffic of their presence.  Deputy Wright determined that Just was intoxicated and cited him for driving while impaired and for possession of drug paraphernalia.

Just moved to dismiss the charges.  At the evidentiary hearing, Deputy Wright testified that, based on his training and experience as a law-enforcement officer, Just’s driving conduct, including the jerking, sharp turn onto the highway, weaving within his own lane, touching the fog line, jerking from the centerline, and driving under the speed limit suggested to Deputy Wright that Just was intoxicated. 

The district court granted Just’s motion to suppress and dismissed the charges, reasoning that Deputy Wright seized Just by activating his flashing lights before Just had come to a complete stop and that, because Just’s conduct was lawful and Deputy Wright saw no “objective indicator[s] of intoxication,” Deputy Wright lacked “reasonable and probable grounds” to believe that Just was under the influence of alcohol.  This appeal follows.

D E C I S I O N

            When reviewing a pretrial order on a motion to suppress evidence, this court reviews the facts independently to determine whether, as a matter of law, the district court erred by suppressing or not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  In the absence of a factual dispute, whether a police officer’s actions amount to a seizure and whether the officer articulated an adequate basis for the seizure are questions of law subject to de novo review.  State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003).  

I.

            The state first argues that, in assessing the justification for the stop, the district court erred by requiring a showing of probable cause to believe that Just was intoxicated rather than a mere showing that Deputy Wright had a reasonable, articulable suspicion that Just was intoxicated.  The district court recognized that “the standard for determining the validity of a traffic stop is minimal” and that all that is required for a stop to be valid is a showing that “the stop is based upon specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant the intrusion.”  The court also properly identified the issue as being whether Deputy Wright articulated a reasonable, articulable suspicion of criminal activity. 

            But the district court went on to define the probable-cause standard applicable in implied-consent cases and then concluded that “no objective indicator of intoxication was established by [the state] to establish ‘reasonable and probable grounds’ [to believe] that [Just] was under the influence of alcohol prior to the stop.”  The state is not required to establish “reasonable and probable grounds” to believe that Just was intoxicated.  A brief investigatory stop requires only a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968) (stating that an investigatory stop is justified if it is based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion”).  To the extent that it relied on a probable-cause standard in determining the validity of the stop, the district court erred.

II.

            The state next argues that the district court erred by concluding that Just’s encounter with Deputy Wright constituted a seizure for Fourth Amendment purposes.  We disagree.

Minnesota courts have articulated two tests for determining whether a seizure has occurred.  Under the first test, a seizure occurs when a law-enforcement officer, “by means of physical force or a show of authority, has in some way restrained the liberty of a citizen.”  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (quotation omitted).  A police officer has restrained a citizen’s liberty if, “taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”  Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387 (1991) (quotation omitted).  The reasonable-person standard is an objective one.  Cripps, 533 N.W.2d at 391.  A finding that there was a seizure is not dependent on whether the police used physical force to restrain the suspect or whether the suspect physically submitted to the police’s show of authority.  State v. E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (rejecting the Supreme Court’s determination in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991), that seizure does not occur until suspect actually submits to police authority).

Under the second test, an encounter with the police becomes a seizure when the police engage in conduct that a reasonable person would not expect if the encounter were between two private citizens.  State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988) (citing 3 Wayne R. LaFave, Search and Seizure § 9.2(h) (2d ed. 1987)).  A seizure does not occur, however, merely because a person feels the moral and instinctive pressure to cooperate that most people feel when dealing with the police.  State v. Hanson, 501 N.W.2d 677, 680 (Minn. App. 1993) (citing LaFave, supra, at 411-12).  An encounter becomes a seizure “only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.”  Id. (quotation omitted).

            The state argues that the district court erred by concluding that, by activating his squad car’s flashing lights “as [Just] was pulling over,” Deputy Wright seized Just.  Although not dispositive, an officer’s activation of flashing lights is one of the factors that Minnesota courts routinely consider in determining whether a person has been seized.  See State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1999) (stating that “in many fact situations the officer’s use of the flashing lights likely would signal to a reasonable person that the officer is attempting to seize the person for investigative purposes”).  This court has held, for example, that a law-enforcement officer seized a defendant when he activated his squad car’s flashing lights after trailing the defendant for some time.  State v. Bergerson, 659 N.W.2d 791, 795-96 (Minn. App. 2003).  The Bergerson court reasoned that

[a] driver confronted with a trailing squad car with flashing red lights inevitably feels duty bound to submit to this show of authority by pulling over until the officer makes it clear that either the driver is not the target of interest or the driver’s encounter with the police has come to a conclusion. 

 

Id.at 795.

This court has similarly held that a law-enforcement officer who activated his squad car’s flashing lights and honked his horn after “boxing in” a parked vehicle created a show of authority sufficient to effectuate a seizure.  Sanger, 420 N.W.2d at 243.  The Sanger court held that the officer’s conduct created a show of authority that one would not expect if the encounter were between private citizens and that a person who is “boxed in” by the police is not free to go.  See also State v. Lopez, 698 N.W.2d 18, 22 (Minn. App. 2005) (holding that an officer who pulled into store’s parking lot with emergency lights flashing, partially blocked defendant’s parked car, pounded on the driver’s window, and opened the driver’s door created sufficient showing of authority to cause a reasonable person to believe that he was not free to leave or terminate encounter with police).

The activation of flashing lights does not turn an encounter with the police into a seizure, however, when it could reasonably be interpreted only as a precautionary measure.  Hanson, 504 N.W.2d at 220.  In Hanson, for example, the supreme court held that an officer who drove up behind a car that was parked on the shoulder of a highway at night and activated his flashing lights to warn oncoming traffic of their presence did not seize the defendant.  The supreme court stated that

under all the facts . . . [a] reasonable person would have assumed that the officer was not doing anything other than checking to see what was going on and to offer help if needed . . . [and] would not be surprised at the use of the flashing lights.  It was dark out and the cars were on the shoulder of the highway far from any town. . . . 

 

Id.  The supreme court further stated that “[a] reasonable person would know that while flashing lights may be used as a show of authority, they also serve other purposes, including warning oncoming motorists in such a situation to be careful.”  Id.

Unlike the defendant in Hanson, who was parked on the shoulder of the road and had not been followed before an officer pulled up behind him and activated his squad car’s flashing lights, Just had been followed for approximately one-half mile and had not come to a complete stop before Deputy Wright activated his flashing lights.  Under the circumstances, a reasonable person in Just’s position would not likely have thought that Deputy Wright was merely checking to see if he needed help and had activated his flashing lights only to warn oncoming traffic of their presence.  Not having come to a complete stop, it is more likely that a reasonable person, like the defendant in Bergenson, would conclude that the flashing lights were intended to cause him to stop, and he would feel duty-bound to stop until the officer made it clear that he was free to leave.  

Relying on State v. Plutt, the state argues that the encounter in this case did not constitute a seizure because Just pulled to the side of the road on his own volition, and Deputy Wright did not engage in any activity that would lead a reasonable person to believe that he was not free to leave—he did not activate his squad car’s flashing lights while Just was traveling on the road, box Just’s car in, honk his horn, knock on the window, or open the car door.  See 400 N.W.2d 377, 379 (Minn. App. 1987) (stating that encounter with police does not turn into seizure when driver voluntarily stops).  In Plutt, however, the car was parked outside a store when the officer approached the car and asked the driver to step out and answer a few questions.  The driver, who had not been followed, could not therefore have interpreted the flashing lights as a show of authority directing him to stop.  But here, a reasonable person in Just’s situation would likely have interpreted the activation of the flashing lights as a mandate to stop and would have felt more than moral or instinctive pressure to cooperate.  We, therefore, conclude that the totality of the circumstances supports a finding that Just was seized within the meaning of the Fourth Amendment.

III.

            The state also argues that the district court erred by concluding that because Just did not violate any traffic laws, Deputy Wright lacked a reasonable, articulable suspicion of criminal activity sufficient to justify the stop.  A law-enforcement officer may conduct an investigatory stop and temporarily seize a person if the officer has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”  State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quotation omitted).  The officer’s suspicion must be based on “specific and articulable facts that, along with rational inferences from those facts, reasonably warrant the intrusion of a stop.”  State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001).  Specific, articulable facts are those “that, by their nature, quality, repetition, or pattern become so unusual and suspicious that they support at least one inference of the possibility of criminal activity.”  State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001), review denied (Minn. July 24, 2001).  A “hunch,” mere whim, caprice, or idle curiosity is not enough.  Id.; State v. Martin, 406 N.W.2d 37, 38 (Minn. App. 1987), review denied (Minn. June 30, 1987).

         In determining whether a stop is justified, the court must consider the totality of the circumstances.  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983).  The totality of the circumstances includes the officer’s general knowledge and experience; his or her personal observations; information that the officer received from other sources; the time, nature, and location of the suspected offense; and anything else that is relevant.  Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).  The court may also consider the state’s interest in effective crime prevention and detection.  Schrupp, 625 N.W.2d at 847.

Trained law-enforcement officers “are permitted to make inferences and deductions that would be beyond the competence of an untrained person.”  Richardson, 622 N.W.2d at 825.  Minnesota courts have rejected justifications for a stop based on an officer’s training and experience only when the facts do not objectively support a suspicion of criminal activity or when the officer fails to articulate how his or her observations reasonably gave rise to a suspicion that the person stopped was, or was about to be, engaged in criminal activity.  See, e.g., State v. Britton, 604 N.W.2d 84, 88-89 (Minn. 2000) (rejecting broken car window as justification for stop where officer failed to make “an assessment based on training or experience that this particular broken window indicated that the vehicle was stolen”); State v. Johnson, 257 N.W.2d 308, 308 (Minn. 1977) (invalidating stop where “the officer was unable to articulate why he became suspicious of the vehicle, saying with commendable candidness, ‘I can’t tell you.  I don’t know.’”); Sanger, 420 N.W.2d at 244 (invalidating stop on ground that fogged windows and the presence of people moving inside car parked curbside in residential area of downtown were not an unusual sight for officer on patrol in evening hours in college town and could not have aroused reasonable suspicion of criminal activity).  Thus, the issue in this case is whether Deputy Wright articulated an objective, individualized suspicion, based on his training and experience, that Just was engaged in criminal activity.

Deputy Wright testified that, shortly after midnight, he saw Just make a jerkish sharp turn onto the highway, weave within his own traffic lane several times, jerk the car back after it touched the fog line, and travel at a rate of speed that was lower than the speed limit.  Deputy Wright interpreted Just’s jerking as an overcorrection for going toward the fog line.  Deputy Wright testified that, based on his training and experience as a law-enforcement officer, he concluded that Just was driving under the influence of alcohol.

Although Deputy Wright saw no criminal activity, his observations provided a sufficient basis for the stop.  See Thomeczek v. Comm’r of Pub. Safety, 364 N.W.2d 471, 472 (Minn. 1985) (upholding stop where police officer saw legally parked car with lights on and motor running, late at night, in vacant lot near construction area where crime “might occur”); State v. Barber, 308 Minn. 204, 206-07, 241 N.W.2d 476, 477 (1976) (holding that lawfully but unusually displayed license plates justified stop).  Minnesota courts have consistently upheld the validity of investigatory stops based on an officer’s observation that a vehicle was traveling under the speed limit and weaving within its own traffic lane for some distance.  See, e.g., State v. Engholm, 290 N.W.2d 780, 783-84 (Minn. 1980) (holding that officer reasonably suspected criminal activity and was justified in conducting brief investigatory stop where defendant was traveling “at an exceptionally slow speed” and weaving within its own lane); State v. Dalos, 635 N.W.2d 94, 98 (Minn. App. 2001) (concluding that “weaving within one’s own lane continuously is enough, by itself, to provide a reasonable articulable suspicion [of criminal activity to justify a traffic stop]”); cf. State v. Brechler, 412 N.W.2d 367, 369 (Minn. App. 1987) (holding that evidence of single swerve did not provide a sufficient basis for a stop).    

As in Engholm and Dalos, the combination of weaving and traveling below the speed limit reasonably suggested to Deputy Wright that Just was intoxicated and was therefore sufficient to justify the stop.  The district court therefore erred by concluding that Deputy Wright’s observations did not provide a sufficient basis for the stop.

            Reversed.