Allstate Insurance Company, Appellant, vs. State of Minnesota, Respondent, Dr. Keith Chilgren, Respondent, Patient Intervenors, Respondents.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-97-1953

Johnny D. Bosiaki, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed April 21, 1998

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. IC475092

Charles A. Ramsay, Ramsay & Becker, Ltd., 2151 Hamline Avenue North, Suite 111, Roseville, MN 55113 (for appellant)

Hubert H. Humphrey III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

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

KALITOWSKI, Judge

Appellant Johnny D. Bosiaki challenges the revocation of his driver's license, contending that the police officer improperly relied on an anonymous tip when seizing him. We affirm.

D E C I S I O N

Because there are no facts in dispute, this case presents an issue of law for this court to review. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

Before addressing appellant's argument regarding the anonymous tip, we first must determine whether a seizure occurred. The test for determining whether a seizure occurred is whether, under all of the circumstances, a reasonable person would have concluded he or she was not free to leave, based on the conduct of the officers. In re E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). An officer's mere approach of a driver in a stopped vehicle does not constitute a seizure. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); See Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244, 245-46 (Minn. App. 1986) (holding seizure did not occur when officer pulled up behind legally parked vehicle with its lights on to offer assistance if necessary).

Here, after receiving a tip reporting a drunk driver and his course of travel, the officer arrived at appellant's residence. Finding appellant slumped over the steering wheel, the officer tapped on the window and asked appellant to roll down the window. Appellant on his own initiative then opened the door and left the vehicle, displaying indicia of intoxication. Following Vohnoutka, we conclude the officer's actions in approaching the stopped vehicle with a slumped-over driver and then tapping on the window and asking him to roll it down did not constitute a Fourth Amendment seizure. Because we conclude no seizure occurred, we need not address appellant's challenge to the tip. We affirm the order of the district court sustaining the driver's license revocation.

Affirmed.