Donald F. Ryan, Crow Wing County Attorney, Lower Level County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

Steven P. Russett, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Holtan, Judge.

Appellant challenges the denial of his pretrial motion to suppress evidence obtained as the result of an investigatory seizure, alleging the evidence obtained was the fruit of an unconstitutional seizure. We affirm.

After Officer Bestul asked appellant and his passenger several times whether they had been smoking marijuana, appellant gave Officer Bestul permission to search the car. Officer Bestul discovered a plastic bag containing a white powdery material, later determined to be .1 gram of methamphetamine. Appellant was then arrested.

In an omnibus hearing order filed May 11, 1998, the trial court concluded appellant was seized, but that it was a valid investigatory seizure, and denied appellant's motion to suppress the evidence. Appellant waived his right to a jury trial and submitted his case on stipulated facts. The trial court found him guilty as charged and entered a stay of adjudication. On June 29, 1999, this court granted discretionary review to appellant and denied respondent's motion to dismiss for lack of jurisdiction.

Appellant contends he was seized when Officer Bestul parked behind him. A seizure has occurred when a reasonable person would have believed he or she was not free to terminate the encounter. Id. The use of language or tone of voice indicating that compliance with the officer's request might be compelled may indicate a seizure has occurred. Id. Appellant was seized when the police officer instructed him to remain in his car. A reasonable person might have felt free to drive away, if possible, before that point. However, a reasonable person would not feel free to leave in disregard of an instruction from a police officer.

This seizure, however, was constitutional. Even without probable cause or a warrant, a brief investigatory seizure is constitutional "if the police officer can point to `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Martinson, 581 N.W.2d 846, 849-50 (Minn. 1998) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). All that is required is the stop must not be the product of "mere whim, caprice, or idle curiosity." Marben v. State, 294 N.W.2d 697, 699 (Minn. 1980) (citation omitted). The police officer may draw inferences and deductions based on his experience, general knowledge, and personal observations, as well as the nature of the offense suspected, the time and the location. Olmscheid v. Commissioner of Pub. Safety, 412 N.W.2d 41, 42 (Minn. App. 1987).

Appellant contends his mere presence in the area caused Officer Bestul to seize him, and that the seizure was therefore unconstitutional. Mere presence in a high crime area, standing alone, is not sufficient justification for a stop. State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998). However, presence in an area combined with other factors indicating a more particularized suspicion can give rise to sufficient justification for a stop. See Thomeczek v. Commissioner of Pub. Safety, 364 N.W.2d 471, 472 (Minn. App. 1985) (stop justified where defendant was lawfully parked near an empty lot, late in evening, where burglary or vandalism might occur, headlights were on and car was occupied); see also Olmscheid, 412 N.W.2d at 43 (stop justified where car was present in early morning hour in commercial area on dead-end road and officer knew of previous thefts in area). Appellant was not merely present or passing through a high-crime area. Appellant was lawfully parked, but on a dead-end, one-lane road, in the dark with the headlights off and the engine running, in an area where teenagers frequently congregated for illegal drinking and smoking. These facts, combined with the officer's knowledge that offenses characteristic of these facts were frequently committed at that location, justified an investigatory seizure of appellant.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The parties characterize this instruction somewhat differently. However, the seizure was justified by sufficient articulable facts to satisfy the constitutional standard, and as such whether it was an "order" or an "instruction" is irrelevant to the result.