A06-121

State of Minnesota,

Respondent,

vs.

Amra Pheakdey Chan,

Appellant.

Filed May 1, 2007

Affirmed

Willis, Judge

Hennepin County District Court

File No. 05-039767

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Kenneth N. Potts, 5101 Thimsen Avenue, Suite 200, Minnetonka, MN 55345 (for respondent)

Stephen V. Grigsby, 2915 South Wayzata Boulevard, Suite 101, Minneapolis, MN 55405 (for appellant)

Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.

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

WILLIS, Judge

Appellant challenges her driving-while-impaired convictions, arguing that the evidence of her intoxication was obtained as a result of an unconstitutional seizure. We affirm.

FACTS

On June 24, 2005, at 12:24 a.m., a police officer on patrol noticed a car parked in the parking lot of a convenience store in Shorewood. The car was not there when the officer had driven past the location 15 to 20 minutes earlier. The convenience store closed at 9:00 p.m., and the adjacent businesses were also closed. The officer drove into the parking lot without turning on the emergency lights of his police car. The headlights of the police car were on, and the officer testified that he may have turned on the spotlight mounted on the driver’s-side door, but he could not recall. The officer parked the police car two car-lengths away from the car in the parking lot.

Appellant Amra Pheakdey Chan was in the driver’s seat of the car and opened her door. The officer got out of the police car and approached Chan’s car. He saw orange paint on the left rear panel of the car and a dent in the rear bumper, which he testified looked like “fresh damage.” Chan was “crying and visibly upset” when the officer approached her car. The officer asked Chan whether she was all right, and Chan explained that her boyfriend had left her in the parking lot. The officer asked Chan for her driver’s license; he then noticed that Chan smelled of alcohol, and he asked her to step out of her car. Chan admitted that she had been drinking, that the car belonged to her, and that she had hit something while driving. Chan agreed to take a breath test, and, based on the results, the officer arrested Chan.

Chan moved the district court to suppress the evidence of her intoxication on the ground that she was unconstitutionally seized. On November 10, 2005, the district court issued findings of fact and an order denying Chan’s motion to suppress. The parties submitted the case to the district court on stipulated facts, including the findings issued with the November 10 order. The district court found Chan guilty of fourth-degree driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2004), and of having an alcohol concentration of 0.08 or more within two hours of driving, in violation of Minn. Stat. § 169A.20, subd. 1(5) (2004). This appeal follows.

D E C I S I O N

The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures of persons by government actors. Not every encounter between a police officer and a person 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). Whether a police officer’s actions were an illegal seizure is a question of law, which this court reviews de novo. See State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). But we will accept a district court’s findings of fact unless those findings are clearly erroneous. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

Chan argues that she was unconstitutionally seized when the officer parked the police car “to partially block the only exit” because that happened before the officer had any reasonable, articulable suspicion of criminal activity. We agree that when an officer uses a police car to block the path of a parked vehicle, it may be a sufficient show of authority to be deemed a seizure. State v. Klotz, 437 N.W.2d 663 (Minn. App. 1989), review denied (Minn. May 24, 1989). But here, the district court found that Chan could have backed up and driven out of the parking lot by turning either to the left or to the right. Chan stipulated to those findings on the record when she agreed to submit the case in a Lothenbach proceeding. And because the district court’s findings are supported by the officer’s testimony, they are not clearly erroneous.

We conclude that Chan was not seized when the police officer parked his police car two car-lengths away from Chan’s car. The district court did not err by denying Chan’s motion to suppress the evidence of her intoxication.

Affirmed.