This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1250

 

Ernest George Sorensen, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed May 22, 2007

Affirmed

Stoneburner, Judge

 

Wright County District Court

File No. 86C605004379

 

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)

 

Lori Swanson, Attorney General, Kyle R. Gustafson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the district court’s decision to sustain revocation of his driver’s license under the implied-consent law, arguing that he was arrested without probable cause for driving while impaired (DWI) and that his right to counsel was not vindicated.  We affirm.

FACTS

 

            Buffalo police officer Joseph Adams was dispatched in response to a telephone call to investigate a driving complaint.  The caller stayed on the line and verified that Adams was behind the correct vehicle.  Adams observed the suspect truck swerve on the road two to three feet over the center line, where it almost collided with an oncoming vehicle.  Adams activated his lights and siren, but the truck did not stop immediately.  Adams notified dispatch that the vehicle was not stopping.  The vehicle made two right turns and slowly came to a stop in a cul-de-sac.  Adams radioed for backup.

            The driver of the vehicle, later identified as appellant Ernest George Sorensen, Jr., immediately lit a cigar and opened the driver’s door of the truck.  Sorensen reached under his seat as he exited the vehicle, and Adams, still in his squad car, which was parked perpendicular to Sorensen’s truck, began to yell at Sorensen to get his hands up.  Sorensen ignored the commands and stood facing the officer with his hands in his pockets as the officer continued to yell at him to get his hands where the officer could see them and to get on the ground.  Sorensen continued to ignore the officer and strolled to the front of his truck.  Sorensen leaned against the truck, continuing to have his hands in his pockets and around his belt line.

            Sergeant Jim Brings arrived to assist Adams.  Brings also ordered Sorensen to get on the ground, and Sorensen continued to ignore the officers’ clear directives.  Brings and Adams then forced Sorensen to the ground and handcuffed him.  Adams, who explained to Brings that Sorensen had reached under the seat as he left the truck, began to pat Sorensen down for weapons.  Sorensen’s intoxication was apparent to both officers.  Adams found shotgun shells in Sorensen’s pocket.

            Sorensen was taken to the law enforcement center and read the implied-consent advisory.  He asked to speak to an attorney and was given a telephone and telephone books.  Sorensen made several calls over 28 minutes.  He reached an attorney and spoke with the attorney for about six minutes.  Sorensen asked Adams to speak to the attorney, but Adams declined.  After Sorensen ended the call, Adams asked Sorensen if he would take a breath test.  Sorensen asked to call the attorney again, and Adams refused.  Sorensen refused the test, and his driver’s license was revoked under the implied-consent law.  Sorensen challenged the revocation, arguing that his arrest was illegal and that his right to counsel was not vindicated.  The district court sustained the revocation, and this appeal followed.

D E C I S I O N

 

I.          Seizure and arrest

            Sorensen asserts that he was immediately arrested after he stopped and that because the officer had only observed a petty misdemeanor traffic violation, there was no probable cause for arrest at that time.  He claims, therefore, that the district court erred by sustaining revocation of his driver’s license.  We disagree and conclude that the district court did not err in determining that the officer’s actions in seizing and searching Sorensen for weapons were justified by concern for officer safety. 

            Police may stop and frisk a person when: (1) they have a reasonable articulable suspicion that the suspect may be engaged in criminal activity and (2) they reasonably believe the suspect might be armed and dangerous.  Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85 (1968).  In this case, based on the citizen’s complaint about the manner in which the truck was being driven, the officer’s observation of driving conduct that endangered others,[1] the failure of the driver to respond to the lights and siren, and the fact that Sorensen reached under the seat as he got out of the truck when he finally stopped, gave Adams a reasonable articulable suspicion that Sorensen was engaged in criminal driving conduct and might be armed and dangerous as he left the truck, justifying Adams’ commands to Sorensen to get his hands out of his pockets and in the air where the officer could see them. 

            The record does not support Sorensen’s argument that Adams began to yell at him before Adams had any cause to fear for his safety.  The videotape of the stop is in the record and shows that Adams did not begin to yell at Sorensen to get his hands up until after Sorensen reached under his seat as Sorensen prepared to get out of the truck.

            There is merit to the commissioner’s argument that although Sorensen was seized when Adams began to yell instructions to him, he was not arrested until after he had struggled with the officers as they attempted to place him on the ground to ensure officer safety.  Adams did not ask Sorensen to step out of the truck after he stopped; Sorensen spontaneously opened the door, reached under the seat, and got out of the truck, facing the officer with his hands in his pockets.  Under Terry, a court is required to determine the reasonableness of police action by balancing the individual’s Fourth Amendment interests against the importance of the governmental interests at stake.  392 U.S. at 20-21, 88 S. Ct. at 1879-80.  The governmental interests include both the interest in investigating possible criminal activity and the need for law-enforcement officers to protect themselves.  Id.at 22-24, 88 S. Ct. at 1880-81.   

            A lawful stop or temporary investigative detention is not converted into an unlawful arrest merely because the individual is not free to leave or because police use a show of force, when the circumstances warrant such a show.  See, e.g., State v. Moffatt, 450 N.W.2d 116, 120 (Minn. 1990) (stating that a person is “not free to leave” during temporary detention); State v. Nading, 320 N.W.2d 82, 84 (Minn. 1982) (holding that where officers had reason to believe that defendant was armed and dangerous, they were entitled to take reasonable precautions during temporary detention and to order defendant to lie on ground); State v. Ailport, 413 N.W.2d 140, 144 (Minn. App. 1987) (stating that “[a]n officer is justified in proceeding cautiously with weapons ready if he is making a reasonable investigatory stop and has cause to believe an individual may be armed”), review denied (Minn. Nov. 18, 1987).  “The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day and the reaction of the suspect to the approach of the police are all facts which bear on the issue of reasonableness [of police conduct].”  United States v. Ocampo, 890 F.2d 1363, 1369 (7th Cir. 1989) (quoting Wayne R. LaFave,4 Search and Seizure § 9.2(d), at 306-08 (4th ed. 2004)).  In this case, the district court’s finding that Adams reasonably feared that Sorensen may have a weapon, which justified Sorensen’s seizure for officer safety, is not clearly erroneous.

            Once he was on the ground, the officers told Sorensen that he was under arrest for “obstructing.”  Under Minn. Stat. § 609.50 subd. 1(2) (2004), a person who intentionally “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties” is guilty of a misdemeanor. 

            Sorensen argues that he could not be legally arrested for obstructing legal process because he did not use physical force against the officers or engage in any physical obstruction.              But the obstruction-of-legal-process statute applies to both physical and verbal acts.  State v. Occhino, 572 N.W.2d 316, 320-21 (Minn. App. 1997)(upholding conviction for obstructing legal process when defendant interfered with police officer performing her duties by repeatedly pacing back and forth by her desk and loudly interrupting her even though the defendant was asked to leave) (citing State v. Krawsky, 426 N.W.2d 875, 877 (Minn. 1988)), review denied (Minn. Jan. 28, 1998).  The videotape shows that Sorensen did not respond to the officers’ commands: he kept his hands in his pockets or belt and did not get on the ground.  He struggled with the officers when they assisted him to the ground.  If Sorensen was merely seized but not arrested prior to being put on the ground, his struggle with the officers provided probable cause for his arrest.  Additionally, as the officers came in contact with Sorensen, his intoxication was apparent, also justifying his arrest.

II.        Right to counsel

 

            Drivers have a limited right to counsel before deciding whether to submit to chemical testing.  Minn. Const. art. I, §  6; Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  When officers request implied consent tests from a driver, they must advise the driver, among other things, “that the person has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.”  Minn. Stat. § 169A.51, subd. 2(4) (2004).  “The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.”  Friedman, 473 N.W.2d at 835 (quotation omitted).  The court considers “the totality of the facts” in determining if a driver’s right to counsel has been violated.  Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992).  An officer is only required to facilitate the driver’s right to counsel; the officer need not ensure that the driver has received the best or even proper counsel.  Butler v. Comm’r of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984).  On undisputed facts, this court reviews de novo whether a defendant’s right to counsel was violated.  State v. Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994), review denied (Minn. June 15, 1994). 

            Sorensen does not dispute that he was provided with a telephone and an opportunity to talk with an attorney.  He argues, however, that his limited right to counsel was violated because (1) he was not given privacy during the conversation with his attorney and (2) Adams unreasonably refused to speak with his attorney and Sorensen was not notified before he called the attorney of the kind of test he would be given.

            Sorensen testified that Adams refused to leave the room while Sorensen spoke to his attorney and that having the officer present during the phone call “inhibited [him] from asking the questions [of his attorney] that would have brought [him] more information.”  But the Minnesota Supreme Court has “held [that] the Friedman [limited] right [to counsel] does not include the right to a private consultation with counsel.”  State v. Schmidt, 712 N.W.2d 530, 538 (Minn. 2006) (citing Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992)).  Therefore, Sorensen’s argument that he was entitled to privacy during the conversation with his attorney lacks merit. 

            Sorensen further argues that his limited right to counsel was not vindicated because he was not informed of the kind of test he would be given so that he could consult with his attorney about the testing and because Adams refused to speak with Sorensen’s attorney.  Sorensen testified that he “wanted to contact [his] attorney before [he] submitted to testing and find out what [his] rights [were] under the particular test.”  But Sorensen has cited no authority for the proposition that an officer must speak to a DWI suspect’s attorney on request or must inform a DWI suspect of the type of test to be administered before the suspect speaks to an attorney.  We find no merit in these arguments.  Sorensen had ample time to speak to the attorney, and his right to counsel was vindicated.

            Affirmed.