State of Minnesota, Respondent, vs. Kurt David Anderson, Appellant.

State of Minnesota, Respondent, vs. Kurt David Anderson, Appellant. A04-387, Court of Appeals Unpublished, January 4, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-387

 

State of Minnesota,
Respondent,
 
vs.
 
Kurt David Anderson,
Appellant.

 

Filed January 4, 2005

Affirmed

Stoneburner, Judge

 

Nobles County District Court

File No. K303114

 

Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Gordon L. Moore, III, Nobles County Attorney, William A. Lemons, Assistant County Attorney, Suite 400, 1530 Airport Road, Box 337, Worthington, MN 56187 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Theodora Gaïtas, Assistant Public Defender, Michael Kunkel, Certified Student Attorney, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Appellant Kurt David Anderson challenges the district court's denial of his motion to suppress evidence, arguing that he was unlawfully seized.  Because the officer's conduct in approaching appellant's parked car to investigate and to offer assistance did not constitute a seizure for purposes of the Fourth Amendment, we affirm.

FACTS

 

On routine night patrol in February of 2003, Officer Michelle Merkel of the Worthington Police Department observed appellant's parked car on the side of the road.  Appellant's hazard lights were not illuminated, and Merkel believed that the car posed a traffic hazard.  Merkel decided to investigate to determine whether appellant needed assistance.  As a signal of caution to other motorists, she activated the emergency lights of her squad car and pulled up behind appellant's car.  After speaking with appellant, Merkel observed the necessary indicia of intoxication to administer field sobriety tests and a PBT.  Appellant either failed the tests or performed them poorly, and Merkel arrested him.

At an omnibus hearing in April 2003, appellant moved to suppress evidence of the tests on grounds of an unlawful seizure on the part of Officer Merkel.  The district court denied appellant's motion, holding that an "officer does not need a reasonable articulable suspicion of criminal activity to approach an already parked vehicle."  The court later convicted appellant of driving while impaired in the second degree and sentenced him accordingly.  This appeal from the court's order denying appellant's motion to suppress followed.

D E C I S I O N

 

"When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

As with all inquiries into whether a seizure has in fact occurred, the threshold question "is whether, looking at all of the facts, the conduct of the police would communicate to a reasonable person in the defendant's physical circumstances an attempt by the police to capture or seize or otherwise to significantly intrude on the person's freedom of movement."  State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993) (citation omitted).  An officer's use of her emergency lights may, under certain circumstances, evince the kind of authority that indicates to a reasonable motorist that he is not free to leave.  Id.  But where an officer approaches a car parked on the side of a road at night because she believes that the situation poses a traffic hazard, and activates her emergency lights in order to signal caution to oncoming motorists, "[a] reasonable person [would assume] that the officer was not doing anything other than checking to see what was going on and to offer help if needed."  Id.  

The facts of appellant's case are almost identical to the facts in Hanson, and the district court correctly concluded that appellant was not seized merely because the officer activated her emergency lights when she pulled up behind appellant.  The district court found that the use of the lights was to caution oncoming motorists.

Appellant argues that a 1997 amendment to Minn. Stat. § 609.487 (2002), making it a felony to flee a peace officer in a motor vehicle, warrants a fresh inquiry into whether the use of emergency lights would still be analyzed as it was in Hanson.  Appellant claims that because it is now a felony to flee a peace officer, motorists will be more inclined to believe that they are not free to leave, even if the officer approaches merely to offer assistance.  But we are not persuaded that a change in the penalty for fleeing a police officer requires a reconsideration of the holding in Hanson.

Appellant argues that people today are more deferential to police authority than people were when Hanson was decided such that today motorists would feel seized under the circumstances of this case.  No authority was cited to support this proposition and we find the argument without merit.

Because Officer Merkel's conduct did not constitute a "seizure" for purposes of the Fourth Amendment, the district court did not err in denying appellant's motion to suppress the evidence.

Affirmed.