State of Minnesota, Appellant, vs. Gregory Anton Baker, Respondent.

State of Minnesota, Appellant, vs. Gregory Anton Baker, Respondent. A07-1110, Court of Appeals Unpublished Decision, December 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A07-1110

 

State of Minnesota,

Appellant,

 

vs.

 

Gregory Anton Baker,

Respondent.

 

Filed December 4, 2007

Reversed

Shumaker, Judge

 

Hennepin County District Court

File No. 07013495

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Jay M. Heffern, Minneapolis City Attorney, Eileen J. Strejc, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55401 (for appellant)

 

Leonardo Castro, Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            On appeal, appellant contends that the district court erred in granting the respondent's motion to suppress evidence of intoxication on the basis of an improper seizure.  Because we conclude no seizure occurred until the police officer observed indicia of intoxication and ordered the respondent to get out of his vehicle, we reverse. 

FACTS

            At the hearing on respondent Gregory Anton Baker's motion to suppress evidence of intoxication, State Trooper Adam Flynn testified that, around 3:00 a.m. on March 1, 2007, he drove his squad car into a 24-hour gas station and parked near the front door of the station to drop off a passenger.  While letting the passenger out, the trooper noticed a car with heavy front-end damage parked facing a fence on the west side of the station's parking lot.  He also noticed a man, later identified as Baker, sitting alone in the driver's seat.

            From the location of the damage to the car and the absence of broken parts, glass, or debris around it, the trooper surmised that the car had been in a "T-bone" style accident that occurred elsewhere.  He acknowledged that he did not know when the damage happened and that he had not received a report of an accident in the area.

            The trooper moved his squad next to the gasoline pumps adjacent to the stalls where Baker's car was parked.  The trooper testified that he did not turn on his emergency lights or spotlight, did not pull into a stall next to Baker's car, and did not place his squad behind the car.

            Wearing his uniform, badge, service revolver, and radio, the trooper walked over to the car to talk to the driver.  The car's engine was not running and the driver's side window was partially down.  During a conversation that lasted "a few minutes," the trooper asked Baker "how it was going and what he was doing."  Baker replied that he was waiting for his sister to pick him up.  The trooper inquired about the damage to the car, and Baker explained that he had been involved in an accident caused by another vehicle, which had left the scene.  As Baker spoke, the trooper smelled the odor of alcohol and noticed that Baker's eyes were watery and glassy.  The trooper testified that, after observing those indicia of intoxication, he then "told [Baker] to exit from the vehicle, and he was no longer free to leave then."  Ultimately, the trooper formally arrested Baker, and the state charged him with driving while impaired.

            Baker moved to suppress evidence of intoxication, contending that the trooper had seized him unlawfully.  After hearing the trooper's testimony, the district court agreed with Baker, concluding that the trooper had no valid basis for engaging Baker in conversation or for asking the questions that he asked.  The court granted Baker's motion, and the state brought this appeal.

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).  "[W]hen the facts are not in dispute, a reviewing court must determine whether a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure."  Id.              

            When the state appeals a pretrial suppression order, "the state
must ‘clearly and unequivocally' show both that the trial court's order will have a ‘critical impact' on the state's ability to prosecute the defendant successfully and that the order constituted error."  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quoting State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).  Critical impact is determined before deciding if the evidence was suppressed in error.  Id.  The critical impact requirement is met where an order suppressing evidence results in a dismissal of charges against a defendant.  State v. Werner, 725 N.W.2d 767, 770 (Minn. App. 2007).  In this case, the district court's order granting Baker's motion to suppress evidence of intoxication would necessarily result in the dismissal of all charges against him, and, thus, the critical impact requirement is met.

            The Fourth Amendment to the United States Constitution and article I, section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures.  State v. Burbach, 706 N.W.2d 484, 487-88 (Minn. 2005).  "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 In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quotation omitted)).  Some examples of circumstances that can indicate that 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.'"  In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 1877 (1980)).  "In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person."  Id. (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1877). 

            Baker argues that a seizure occurred when the trooper moved his squad car next to the gas pumps and allegedly blocked his movement.  We have previously held that a seizure may occur when an officer blocks, or even partially blocks, the possible movement of a parked vehicle.  See e.g., State v. Lopez, 698 N.W.2d 18, 22 (Minn. App. 2005) (ruling that a seizure occurred where the officer activated her emergency lights, partially blocked forward movement of the defendant's vehicle, pounded on the driver's window, and opened the driver's side door); Klotz v. Comm'r of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989) (concluding that a seizure had occurred where the officer pulled in behind a vehicle, partially blocked it in, and then called out to the driver, who was walking away, and asked the driver to stop and identify himself), review denied (Minn. May 24, 1989); State v. Sanger, 420 N.W.2d 241, 242-43 (Minn. App. 1988) (holding that a seizure occurred where the officer admitted he stopped his squad car in a manner that prevented the defendant's car from leaving and then flashed his lights and honked his horn when the defendant tried to leave). 

            The record does not show that Baker's car was partially blocked by the trooper's squad.  The trooper's uncontroverted testimony is that he pulled next to the pumps and not behind the car.  Furthermore, photographic exhibits received during the hearing fail to demonstrate where or how the alleged blockage could have occurred, and the testimony regarding the exhibits was so vague and imprecise that it did not provide a basis for a reasonable inference that the squad car's placement partially blocked the possible movement of Baker's car.  On this record, we hold that no seizure occurred when the trooper parked near the gas pumps.

            Baker also argues that a seizure occurred when the trooper approached him and began asking him questions.  Not every contact between a police officer and a person amounts to a seizure.  E.D.J., 502 N.W.2d at 781 (applying Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868 (1968).  "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; E.D.J., 502 N.W.2d at 782 (acknowledging that approaching a person in a parked car and asking questions of them does not constitute a seizure).

            In assessing Baker's contention, we must consider the circumstances of the trooper's conduct.  Baker was not just an apparent gas-station customer during daytime business hours.  Rather, it was 3:00 a.m., and there was virtually no business activity at the station.  The trooper saw a car parked off to one side and away from the station's building.  There was one man sitting alone and in the driver's seat, and the car had heavy front-end damage.  Baker and the district court conclude that these circumstances do not indicate that a crime might have been committed so as to necessitate an investigation.  We agree.  But law-enforcement officers not only investigate crime but also assist citizens with emergency health problems and mechanical troubles in their vehicles, and they provide a myriad of other services that do not implicate any suspicion of possible criminal activity.  The evidence does not show that Trooper Flynn suspected criminal activity when he approached Baker's car.  He suspected nothing whatsoever, but rather was simply inquiring as to how Baker was and what he was doing.  Although it has been held that a seizure can occur when an officer suspects particular criminal activity and engages in specific investigative acts intended to confirm or negate that suspicion, such facts are not present here.  See Cripps, 533 N.W.2d at 391 (holding that a seizure occurred when an officer approached the defendant in a bar and asked her to produce identification because the officer was focused on determining whether she was of legal age to consume alcohol). 

            It has also been held that an officer's overt assertion of police authority can constitute a seizure.  See State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990) ("[I]t is likely to be a seizure if a person is ordered out of a vehicle, or the police engage in some other action or show of authority which one would not expect between two private citizens."), review denied (Minn. Dec. 20, 1990).  Prior to observing indicia of Baker's possible intoxication, Trooper Flynn did not engage in an overt assertion of his police authority.  He did not order Baker to get out of the car, or ask him to open the door or roll the window down further.  Nor did he shine a flashlight into Baker's car or turn emergency squad lights on.  See State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993) (noting that an "officer's use of the flashing lights likely would signal to a reasonable person that the officer is attempting to seize the person for investigative purposes").  Furthermore, the trooper's preliminary conduct and questioning were of a type that a reasonable private citizen in Baker's position under the circumstances might expect another private citizen to engage in.  Thus, we hold that the trooper's approach and conversation with Baker did not constitute a seizure.

            There clearly was a seizure when the trooper told Baker to get out of the car, and the trooper testified that Baker was not free to leave at that point.  But by then the trooper had an objective basis for concluding that Baker, sitting in ostensible control of a motor vehicle, was impaired by alcohol.  The seizure was lawful.  See Crawford v. Comm'r of Pub. Safety, 441 N.W.2d 837, 839 (Minn. App. 1989) (holding that respondent's odor of alcohol and watery and glassy eyes formed a sufficient basis for a seizure); LaBeau v. Comm'r of Pub. Safety, 412 N.W.2d 777, 779-80 (Minn. App. 1987) (concluding that an officer had specific and articulable facts to support his request that appellant get out of his vehicle and provide identification, where the officer observed a strong odor of alcohol on appellant's breath, bloodshot and watery eyes, and slurred speech).  Considering the totality of the circumstances shown in this record, the district court erred in granting Baker's motion to suppress. 

            Reversed.