STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2433

State of Minnesota,
Respondent,

vs.

Weston Allan Baril,
Appellant.

Filed December 26, 2006

Reversed

Stoneburner, Judge

Clay County District Court

File No. T5-05-922

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Kenneth Kohler, Clay County Attorney, 807 North Eleventh Street, Box 280, Moorhead, MN 56561 (for respondent)

Jesse N. Lange, Aaland Law Office, Ltd., 1024 Third Avenue South, Box 1817, Fargo, ND 58107-1817 (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

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

STONEBURNER, Judge

Appellant challenges denial of his motion to suppress evidence that led to his conviction of driving while impaired, arguing that he was illegally seized. We agree and reverse.

FACTS

At 2:30 a.m. on the morning in question, State Trooper David Keenan noticed a pickup truck in an alleyway behind a strip mall that is adjacent to the interstate on which Keenan was traveling. Keenan saw the brake lights on the pickup flash twice. All of the businesses in the strip mall were closed. One of the businesses in the strip mall was a bar that closed at 2:00 a.m. Keenan testified that he decided to investigate “to find out what was happening back there.”

Keenan parked near the pickup truck, which was stopped with the engine running. Keenan illuminated the truck with his spotlight, enabling him to see a driver, later identified as appellant Weston Allen Baril, and a female passenger. Keenan testified that as he walked toward the truck, he did not observe any parking or traffic violations and the occupants of the truck did not appear to be in need of any assistance. Keenan went to the driver’s window and asked Baril for identification, which Baril produced. Keenan then asked Baril to step out of the truck. Keenan testified that he wanted to separate the driver and passenger before inquiring about why they were there. Baril asserts that at this point, if not earlier, Keenan had seized him without any articulable suspicion to support the seizure. Baril does not contest that at some point after the seizure, Keenan had probable cause to arrest for him DWI.

Baril moved to suppress evidence of his intoxication, arguing that he was seized without a reasonable, articulable suspicion of criminal activity. After an evidentiary hearing, both parties submitted letter briefs to the district court. The state argued that when Baril opened the window of the truck to talk to Keenan, Keenan smelled alcohol and Baril admitted having consumed alcohol, giving Keenan the requisite suspicion to have Baril step out of the vehicle and perform sobriety tests. The district court adopted the state’s factual assertions and denied Baril’s motion to suppress.

Baril requested reconsideration and provided a transcript of the omnibus hearing to show that Keenan did not testify that he detected an odor of alcohol at any time during his encounter with Baril and did not testify that Baril had admitted consuming alcohol.[1] The district court acknowledged its erroneous findings but concluded that even in light of the corrected facts, Keenan did not seize Baril, or, alternatively, that if Baril was seized, the seizure was justified by a reasonable articulable suspicion.

The matter was submitted to the district court on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). Baril was convicted and sentenced. This appeal followed.

D E C I S I O N

I. Standard of Review

“When reviewing pretrial orders on motions to suppress evidence, [this court] 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). “The trial court’s factual findings are subject to a clearly erroneous standard of review.” State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996). When the facts are not disputed, this court “must determine whether a police officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure.” Harris, 590 N.W.2d at 98. “The correct approach in a case where the facts are not significantly in dispute is to simply analyze the testimony of the officers and determine if, as a matter of law, the officers were justified under the cases in doing what they did.” State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).

II. Seizure

The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures of citizens by government actors. But not every encounter between a police officer and a citizen is a seizure. In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993). 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) (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)). Circumstances that might indicate that a seizure has occurred include,

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

E.D.J., 502 N.W.2d at 781 (quotation omitted).

“A person generally is not seized merely because a police officer approaches him in a public place or in a parked car and begins to ask questions.” Harris, 590 N.W.2d at 98. “Moreover, seizure does not result when a person, due to some moral or instinctive pressure to cooperate, complies with a request to search because the other person to the encounter is a police officer.” Id. at 99 (quotation omitted). Not every request for identification is a seizure. State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994), review denied (Minn. Mar. 14, 1995). However, “it is likely to be a seizure if a person is ordered out of a vehicle, or the police engage in some other action or show of authority which one would not expect between two private citizens.” State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990); see also Klotz v. Comm’r of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989), review denied (Minn. May 24, 1989). Furthermore, in Cobb v. Comm’r of Pub. Safety, this court stated that “police need a particularized and objective basis for the minimal intrusion occasioned by asking the driver to identify himself.” 410 N.W.2d 902, 903 (Minn. App. 1987). And “if [an] officer requests identification and asks the driver to leave a vehicle,” it is a seizure. LaBeau v. Comm’r of Pub. Safety, 412 N.W.2d 777, 779 (Minn. App. 1987).

We conclude that Baril was seized when Keenan asked Baril for identification and asked him to step out of the truck. The district court erred in concluding that Baril was not seized.

III. Reasonable Suspicion

We next examine whether Baril’s seizure was reasonable under the totality of the circumstances. “[W]hen a person is seized, courts must suppress evidence gathered as a result of that seizure only when the seizure was unreasonable.” Harris, 590 N.W.2d at 99. “The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person [seized] of criminal activity.” Id. (alteration in original) (quotations omitted). Officers “may justify [their] decision to seize a person based on the totality of the circumstances and may draw inferences and deductions that might elude an untrained person.” Id. (quotation omitted). But “a mere hunch, absent other objectively reasonable articulable facts, will not justify a seizure.” Id.

Baril argues that his seizure was unreasonable because Keenan’s only articulated reason for investigating was that he “[w]anted to find out what was happening” when he saw brake lights flash on a truck parked behind the strip mall at 2:30 a.m. The state argues that given the time of day and location of the truck, Keenan had articulable suspicion that justified Baril’s seizure. In Olmscheid v. Comm’r of Pub. Safety, this court stated,

Especially during the hours of darkness, the police will have a sufficient basis to stop in order to investigate whether a burglary of a closed commercial establishment is pending or had occurred when the suspect is seen in such close proximity to that establishment that he appears to be something other than a mere passerby. Sometimes the time of day and nature of the area will be very significant in establishing the requisite proximity . . . .

412 N.W.2d 41, 43 (Minn. App. 1987) (quoting 3 Wayne R. LaFave, Search and Seizure § 9.3(c), at 440 (2d ed. 1987)), review denied (Minn. Nov. 6, 1987); see also 4 Wayne R. LaFave, Search and Seizure § 9.5(d), at 499-500 (4th ed. 2004). Professor LaFave further stated,

where a car pulled away from a tavern located in an industrial area at about 5 o’clock in the morning, it was proper to stop the vehicle, as the tavern had been closed for several hours and there would be no valid reason for persons to be stopping in the industrial area during this time.

4 Wayne R. LaFave, Search and Seizure § 9.5(d), at 500 (4th ed. 2004). But in Olmscheid, the arresting officer testified that he was aware that a theft had occurred at one of the closed businesses Olmscheid was driving around, and the officer thought Olmscheid could be involved in property theft. Olmscheid, 412 N.W.2d at 42. And in the case before us, one of the businesses, a bar, had only recently closed, distinguishing Baril’s situation from the situation described in the LaFave quotation.

Baril relies on Day, 461 N.W.2d at 407, and State v. Sanger, 420 N.W.2d 241, 242 (Minn. App. 1988), for the proposition that Keenan did not have reasonable suspicion to seize him. In Day, an officer noticed that Day and a friend were looking under the hood of vehicle with a “for sale” sign in a parking lot. 461 N.W.2d at 406. The officer followed Day into a gas station, seized him, and then discovered evidence that Day was driving after revocation. Id. This court held that the officer did not have reasonable suspicion to seize Day. Id. at 407. We conclude that the factual differences between Day and the case before us make it clearly distinguishable and not helpful to our analysis.

In Sanger, the arresting officer observed a vehicle that was parked in a Moorhead residential area at about 11:30 p.m. 420 N.W.2d at 242. The vehicle’s windows were fogged up, and its sunroof was open. Id. The officer observed people in the front and back seats and could tell the people were moving. Id. The officer testified that he approached the vehicle “to see what was going on.” Id. Sanger was subsequently arrested for DWI. Id.

In concluding that Sanger was unreasonably seized, this court noted that “nothing was articulated as dangerous or suspicious about the location of [Sanger’s] car.” Id. at 244. Specifically this court stated: “Even though the windows were fogged up and people were seen moving inside, Moorhead is a college city and this seems unlikely to be a unique sight for police on patrol in evening hours.” Id. In the case before us, it seems equally unlikely that a vehicle in proximity to a bar some thirty minutes after closing would be a unique sight for police on patrol in the early hours of the morning. Significantly, Keenan did not testify that the truck’s proximity to the recently closed bar gave rise to any particularized suspicion of criminal activity. Although the circumstances surrounding Baril’s seizure are similar to the circumstances in both Olmscheid and Sanger, Keenan’s failure to articulate any reasonable suspicion that Baril or his passenger were engaged in criminal activity or in need of assistance leads us to conclude that the district court erred in finding that Baril’s seizure was reasonable. Keenan cannot be criticized for taking a closer look at the truck he observed in passing, but having taken that closer look and having failed to articulate any reasonable suspicion of criminal activity or need for assistance, Keenan’s seizure of Baril, on this record, appears to have been based on nothing more than a “mere hunch.” Because Keenan seized Baril without reasonable, articulable suspicion of criminal activity, the seizure was unreasonable, and the district court erred in denying Baril’s motion to suppress.

Reversed.

[1] The state agrees that the “facts” asserted in its brief to the district court were not in the record of the omnibus hearing.