State of Minnesota, Appellant, vs. Paul Scott Demars, Respondent.

State of Minnesota, Appellant, vs. Paul Scott Demars, Respondent. A04-1023, Court of Appeals Unpublished, January 18, 2005.

This opinion will be unpublished and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

A04-1023

 

State of Minnesota,
Appellant,
 
vs.
 
Paul Scott Demars,
Respondent.

 

Filed January 18, 2005

Affirmed

Stoneburner, Judge

Dissenting, Harten, Judge

 

Dakota County District Court

File No. K1034151

 

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

Michael E. Molenda, Apple Valley City Attorney, Christine J. Cassellius, Assistant City Attorney, Severson, Sheldon, Dougherty & Molenda, P.A., Suite 600, 7300 West 147th Street, Apple Valley, MN 55124 (for appellant)

Ethan P. Meaney, Gerald Miller & Associates, P.A., 2915 Wayzata Boulevard, Minneapolis, MN 55404 (for respondent)

            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

 

            The state appeals dismissal of charges against respondent Paul Scott Demars, arguing that evidence supporting the charges was not obtained as the result of an illegal seizure.  Because the officer seized respondent without reasonable articulable suspicion of criminal activity, we affirm.

FACTS

 

            Apple Valley Police officer Kurt Schultz, on patrol in the early morning hours of December 3, 2003, noticed an SUV legally parked in a private apartment complex parking lot with the motor running, parking lights on, and a person, who turned out to be respondent, in the driver's seat.  Schultz, who was aware that there had been incidents of vehicle tampering in the parking lots of this apartment complex in 2002, drove through the parking area looking for vehicles that had been tampered with.  Schultz did not see any evidence of any criminal activity.  Schultz pulled up behind the SUV on the driver's side and parked.  There were cars parked on both sides of the SUV and his squad car kept the SUV from backing up.  Schultz testified that the SUV could have been driven forward but would have to have been driven over a cement curb, through a treed, grassy area, and over a sidewalk in order to leave the area.  Schultz testified that he parked so that he could see the driver and that parking in the available alternative locations would not have allowed him to see the driver from his squad car.

            Schultz got out of his squad car and approached the SUV.  He heard loud music coming from the SUV.  Respondent, whose eyes were closed and left hand was in his pocket, did not respond to Schultz's tapping on the window.  Schultz called for back up.  When another officer arrived, both officers knocked on the driver's side door and Schultz ordered respondent out of the vehicle in a loud voice, shouting at him to take his hand out of his pocket.  When respondent opened the door Schultz immediately smelled alcohol.  Respondent produced identification and said he lived in the apartment building and was sleeping in his vehicle.  He admitted he had been drinking and was arrested. 

            Respondent was charged with second- and third-degree driving while impaired, refusal to test, and violation of a restricted license.  He moved to suppress all of the evidence against him, arguing that he was seized without any reasonable articulable suspicion of criminal activity when Schultz blocked his SUV and ordered him out of the SUV.  The district court granted the motion and dismissed the charges.  This appeal followed.

D E C I S I O N

 

I.          Standard of Review

"When reviewing pretrial orders on motions to suppress evidence, [this court] 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).  "The trial court's factual findings are subject to a clearly erroneous standard of review."  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).  When the facts are not disputed, this court "must determine whether a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure."  Harris, 590 N.W.2d at 98.  "The correct approach in a case where the facts are not significantly in dispute is to simply analyze the testimony of the officers and determine if, as a matter of law, the officers were justified under the cases in doing what they did."  State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).

            When the state appeals a pretrial suppression order, the state must show that the "order will have a critical impact on the state's ability to prosecute the defendant successfully. . ."  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted).  "[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error."  Id.  Because the suppression order resulted in dismissal of all of the charges against respondent, the state has clearly shown critical impact.  See State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987) (stating that critical impact is established in "cases where lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution").

II.        Blocking respondent's car constituted a seizure

The Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures of citizens by government actors.  But not every encounter between a police officer and a citizen is a seizure.  In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).  "A person generally is not seized merely because a police officer approaches him in a public place or in a parked car and begins to ask questions."  Harris, 590 N.W.2d at 98.  In this case, respondent candidly admits that Officer Schultz "could have easily satisfied his ‘curiosity' within the confines of the Constitution," had he parked in a manner that did not block respondent's car, walked up to respondent's car, used his flashlight to illuminate the car and asked respondent to roll down his window.  But because Schultz blocked respondent's exit and loudly ordered him to get out of the vehicle, respondent asserts that he was illegally seized and that the district court did not err in granting his motion to suppress evidence obtained as a result of the illegal seizure.

"A seizure occurs ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'"  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).  Under the Minnesota Constitution, "a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter."  Cripps, 533 N.W.2d at 391 (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980).

Minnesota has adopted the Mendenhall-Royer standard for judging the totality of the circumstances.  Harris, 590 N.W.2d at 98.  Circumstances that might indicate a seizure has occurred include, "‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" E.D.J., 502 N.W.2dat 781 (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1870). 

This court has held that a seizure may occur when an officer blocks a parked vehicle so that it cannot move.  State v. Sanger, 420 N.W.2d 241, 242 (Minn. App. 1988).  In Sanger, a police officer stopped his squad car in a manner that prevented a car parked on a residential street from leaving.  Id.  The officer did not testify about his intent or explain why he positioned his squad car to block Sanger's exit.  Id. at 243.  Sanger looked over, saw the officer, started his car and backed up less than two feet, whereupon the officer beeped his horn and flashed his lights, and Sanger stopped the car.  Id. at 242.  Noting that an officer's approach toward a parked vehicle with a legitimate reason (e.g. to see if something is wrong with the motorist) is not a seizure,[1] the Sanger court found that boxing in Sanger's car, activating the lights, and honking the horn created a strong show of authority that resulted in a seizure.  Sanger, 420 N.W.2d at 243.  And the court noted that when Sanger tried to back up, the officer did not move his squad so that Sanger was clearly not free to go.  Id.

The state relies on Erickson v. Comm'r of Pub. Safety, 415 N.W.2d 698 (Minn. App. 1989) to argue that the officer's intention determines whether blocking a vehicle is a seizure.  In Erickson, this court affirmed the district court's finding that blocking Erickson's vehicle was incidental to the officers' intent to stop as close as possible to the scene of a disturbance to which the officers had been dispatched, and did not constitute a seizure.  Id. at 701.  The state argues that in this case Officer Schultz intended to use his car lights to illuminate respondent's vehicle, and that therefore no seizure occurred when Schultz parked behind respondent's SUV.

            The state also argues that because respondent was unconscious or asleep, he could not have felt seized.  But, as the case law cited above demonstrates, the test is whether a reasonable person would consider himself seized in the circumstances, and the constitutional requirements do not vary with the subjective state of mind of an individual.  See Cripps, 533 N.W.2d at 391 (stating that under circumstances of that case an objectively reasonable person would have believed that he or she has been seized). 

            The district court in this case found that Schultz seized respondent both by blocking his car with the squad car and by using a show of force to order respondent out

of his car.  The state argues that Schultz was only shouting because respondent was playing loud music and that Schultz merely "requested" that respondent get out of his car.  But Schultz testified, and the court found, that he loudly ordered respondent out of the car when he saw the first sign of movement by respondent.  On this record, we cannot say that the district court's finding that Schultz engaged in a show of force when ordering respondent to exit the vehicle is clearly erroneous.  We conclude that the district court did not err by determining that respondent was seized when Schultz blocked his exit and loudly ordered him out of his car.

III.       Respondent was seized without a reasonable articulable suspicion of criminal activity.

 

            If a person is seized, "courts must suppress evidence gathered as a result of that seizure only when the seizure was unreasonable."  Harris, 590 N.W.2d at 99.  "The brief seizure of a person for investigatory purposes is not unreasonable if an officer has a particular and objective basis for suspecting the particular person [seized] of criminal activity."  Id. (quotation omitted).

            Whether an articulable basis exists to justify a temporary warrantless seizure for investigative purposes is a question of law and is, therefore, reviewed de novo.  State v. Rochefort, 631 N.W.2d 802, 805 (Minn. 2001).  In order to reasonably seize a person for investigative purposes, an officer must be able to articulate an objective manifestation that the person seized has been, is presently, or is about to be, engaging in criminal activity.  State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

            The state argues that if a seizure occurred, Schultz had a sufficient basis to suspect criminal activity, making the seizure reasonable.  The state relies on Thomeczek v. Commissioner of Public Safety, 364 N.W.2d 471, 472 (Minn. App. 1985) (holding officer had reasonable cause to suspect a driver of criminal activity where driver was parked with the lights on "near an empty lot late in the evening in an area undergoing construction, where a burglary, vandalism or theft might occur").  But in this case respondent was in a residential parking lot, the only criminal activity associated with the lot had occurred more than a year earlier, Schultz investigated the parking lot and did not see any sign of criminal activity, and Schultz could not articulate any reasonable suspicion that respondent was engaged in criminal activity.  The record in this case distinguishes it from Thomeczek, because here Schultz was unable to articulate any suspicion of criminal activity at the time he seized respondent.  As previously noted, Schultz could have accomplished a welfare check on respondent without blocking his exit and ordering him out of the car.  All of the evidence supporting the charges against respondent was obtained after respondent was seized.  Because the seizure was without reasonable suspicion of criminal activity, the district court did not err by granting the motion to suppress and discharging the charges against respondent.

            Affirmed.

HARTEN, Judge (dissenting)

            Because I believe that there was no unlawful seizure of the Demars SUV when the police officer stopped his squad car behind it, I respectfully dissent.

            The blocking of a parked motor vehicle by police officers does not automatically amount to a seizure.  See Erickson v. Comm'r of Pub. Safety, 415 N.W.2d 698, 701 (Minn. App. 1987) ("[B]locking of a car by police officers can constitute a seizure.") (emphasis added).  Here the record is clear that:

            1.         At 1:47 a.m. on 3 December 2003, Officer Kurt Schultz of the Apple Valley Police Department noticed an occupied SUV parked with the lights on and the motor running in an apartment complex parking lot that was an area of past crime problems.

            2.         The SUV was parked facing a parking lot curb between two other parked cars.

            3.         The officer felt it was his duty to investigate the SUV to check the welfare of the occupant and otherwise determine if there was criminal activity.

            4.         To approach the SUV in his squad car, Schultz parked at an angle behind the SUV; Schultz could also thereby illuminate the area with the squad car's headlights.  In doing so, Schultz inadvertently blocked the SUV.

            5.         Schultz then approached the SUV and noticed the occupant, respondent Demars, seated in the front seat with his eyes closed, his hand in his pocket, and music blaring from the SUV.  After backup arrived, the police awakened Demars and ordered him from the van, which led to his being charged with two counts of impaired driving and violation of restricted license.

            In a case involving similar facts but where the officer made a stop, police suspicion of theft and concern for a driver's welfare supported a valid stop.  Thomeczek v. Comm'r of Pub. Safety, 364 N.W.2d 471, 472 (Minn. App. 1985).  In Thomeczek, the police officer observed a parked vehicle that was running with its lights on in an area where theft and vandalism had been known to occur.  Id.  The officer suspected either that the driver needed help or that wrongdoing had occurred and stopped his car behind the vehicle to investigate.  Id.  The occupant of the vehicle then began to move the car and the officer stopped it.  Id.  The supreme court held this was a valid investigatory stop justified by sufficient articulable facts.  Id.  The movement of the car was a neutral factor; the officer had already initiated his investigation by the time it moved.  If the stop was lawful in Thomeczek, the police seizure of Demars was lawful in the instant case.

[1] The Sanger court cited State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) for this proposition.  In Vohnoutka, the police officers drove in behind a car that was parked with its headlights off in the vicinity of a closed service station.  Id.  The driver got out and approached the officers.  While one officer asked if anything was wrong, the other officer "routinely walked up to [the driver's] car and shined his flashlight through the window into the passenger compartment to see if there was anyone in the car."  Id.  The court determined that there was no constitutional violation by the officer's use of the flashlight to see inside the car, when the officer "did not stop or otherwise temporarily seize the defendant's car" and "defendant had already stopped his car and the officers approached him for a legitimate reason."  Id.  Vohnoutka is similar to this case in that there was no stopthe defendant's car was already parked when the officers approached.  But in Vohnoutka, there were no facts indicating the driver's car was blocked from exiting by the squad car, as was the case here.  Also different is the fact that in Vouhoutka the driver voluntarily got out of his car and approached the officers.