David James Gothmann, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-98-933

David James Gothmann, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed December 1, 1998

Affirmed

Kalitowski, Judge

Carver County District Court

File No. C198229

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)

Hubert H. Humphrey III, Attorney General, Sean R. McCarthy, Kelly Kemp, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Holtan, Judge.[*]

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

KALITOWSKI, Judge

Appellant David James Gothmann challenges the district court order sustaining the revocation of his driving privileges. He asserts that the arresting police officer illegally seized him by first opening his car door and then asking him to step outside the vehicle without adequate justification. We affirm.

D E C I S I O N Findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; Thorud v. Commissioner of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984). When facts are not significantly in dispute, the court's standard of review is first to determine as a matter of law whether the officer's actions amounted to a seizure, and then to determine if the officer had an adequate basis for the seizure. State v. Day, 461 N.W.2d 404, 406 (Minn. App. 1990). Review of this question of law is de novo. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

The test of whether a seizure has occurred is whether, in light of all the circumstances, a reasonable person would have felt free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980); State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). An investigative seizure is justified if the officer can point to specific and articulable facts that reasonably warrant the intrusion of privacy. Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244 (Minn. App. 1986).

Appellant first argues that the police officer performed an unreasonable seizure by opening his car door. The police officer observed appellant "doing donuts" on a frozen lake, late at night, within 50-60 feet of parked cars. The officer approached the already stopped vehicle on foot, without the benefit of sirens or lights to announce his presence. Appellant's car engine was still running. The officer testified that he was not sure that appellant had seen him, and since he did not want appellant driving off without talking to him, he opened the car door.

Assuming, as appellant contends, that opening the car door was a seizure, we look to whether that seizure was reasonable under the totality of the circumstances. This incident occurred late at night. The officer observed what he considered careless driving that put private property at risk. The officer did not conduct a search of the car, but merely asked appellant some questions. We conclude that opening the car door under these facts was a minimal intrusion of appellant's privacy, outweighed by the interest in protecting private property and the public from careless drivers. Appellant argues that the officer could have tapped on the window of the car as a less-intrusive means of questioning appellant. However, it is not the court's role to second-guess an officer's decisions in the field, so long as the decisions are legally permissible. Although tapping on the window may have been the more prudent action, we conclude that the officer's conduct was within legal boundaries.

Appellant also contends the district court erred in not finding that the officer conducted an illegal seizure by asking appellant to step out of his car. When the district court passes upon a fact question, the reviewing court should determine whether there is a reasonable basis on which the court could have properly made its decision. See Rosenberg v. Townsend, 376 N.W.2d 434, 436 (Minn. App. 1985) (affirming because the court could have properly based its decision on any of three separate grounds); Skalbeck v. Agristor Leasing, 384 N.W.2d 209, 212-13 (Minn. App. 1986) (upholding motion because, although the district court made no findings of fact, the record supported the court's decision).

Appellant argues that the seizure was unreasonable because, based on the report he filed, the officer observed no signs of intoxication until after appellant stepped out of the car. However, the officer testified in court that he detected the odor of alcohol and noticed slurred speech before he asked appellant to get out of the car. The district court did not make a specific finding of fact on this issue, but sustained the license revocation, finding that the officer was "justified in making the limited inquiry which ultimately led to the petitioner's arrest." To reach this conclusion, the court must have credited the officer's testimony that he had reason to believe that appellant was intoxicated before asking him to step out of the car. An officer's testimony is sufficient for the court to make a credibility determination. See Schneider v. Commissioner of Pub. Safety, No. C6-98-362, 1998 WL 551920, at *2 (Minn. App. Sept. 1, 1998) (giving credence to the officer's account of what happened even though it included details not found in the police report). We conclude the record supports the district court's determination.

An officer's observation of indicia of intoxication is a sufficient basis for a Fourth Amendment seizure. See Crawford v. Commissioner of Pub. Safety, 441 N.W.2d 837, 839 (Minn. App. 1989) (odor of alcohol and watery eyes were sufficient basis for seizure); LaBeau v. Commissioner of Pub. Safety, 412 N.W.2d 777, 779-80 (Minn. App. 1987) (odor of alcohol, bloodshot eyes, and slurred speech justified the officer in asking defendant to step out of his car). Thus, having observed indicia of intoxication, the officer was justified in asking appellant to exit the car and the district court properly determined the seizure was reasonable.

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.