Donald D. Johnson, as trustee for the heirs and next of kin of Lynn Ellen Johnson, decedent, Plaintiff, vs. O.B. of Minneapolis, Inc., d/b/a O'Brien Sheet Metal, Appellant, Boyer Ford Trucks, Inc., Respondent, and Paris Lea Burns, Plaintiff, vs. O'Brien Sheet Metal, Appellant, Boyer Ford Trucks, Inc., Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1321

 

State of Minnesota,

Appellant,

 

vs.

 

Todd Robert Joki,

Respondent.

 

Filed November 7, 2000

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 981129879

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Steven M. Tallen, Tallen & Baertschi, 4640 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellant)

 

Matthew E. Engelking, Engelking Group, P.A., Interchange West Building, 435 Ford Road, Suite 335, St. Louis Park, MN  55426; and

 

Richard M. Meshbesher, Meshbesher Law Office, 10285 Yellow Circle Drive, Minnetonka, MN  55343 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order suppressing evidence of intoxication and dismissing DWI charges against respondent Todd Robert Joki, appellant State of Minnesota argues that the district court erred by concluding that the arresting officer lacked a sufficient basis for an investigatory stop or seizure of Joki's vehicle.  We affirm.

FACTS

            At approximately 1:46 a.m., a police officer patrolling the City of Loretto saw a truck parked in a lot across the street from several bars that had closed at 1:00 a.m.  The lot was located on railroad property and was not fenced.  The officer testified that the lot was used by nearby businesses.  Joki testified, and the district court found, that there were other vehicles present in the parking lot.

            The officer saw that the truck was parked near a front-end loader and that it was occupied, its lights were on, and its engine was running.  Aware that there had been vandalism problems in that area in the past, the officer turned his car around to investigate.  As he turned, the officer saw the truck's headlights turn off and then on again.  The officer pulled into the lot behind the truck, turned on his spotlight and his front and rear flashing lights.  He did not activate the overhead emergency lights.

As the officer pulled up, a person got out of the truck on the passenger side and walked toward the squad car with his hands high in the air, saying, "We're just talking.  We're just talking."  The driver, Joki, still in the truck, leaned over to the passenger side and told the officer that he had identification. 

            Joki was arrested and charged with DWI.[1]  He filed a motion to suppress evidence of intoxication, arguing that police violated the Fourth Amendment by stopping and seizing his vehicle.  The district court determined that the officer effectuated a stop or seizure of Joki's truck.  The court granted Joki's motion to suppress and dismissed the charges against him. 

The state appealed but did not challenge the district court's determination that the officer's actions constituted a stop or seizure of Joki's truck.  Because it was unclear whether the district court had applied the proper standard when determining the suppression issue, this court remanded the case to the district court with instructions to apply the reasonable and articulable suspicion standard when determining whether police acted properly in stopping Joki's vehicle.  State v. Joki, No. C3-00-1835 (Minn. App. May 23, 2000).  On remand, the district court concluded that the arresting officer lacked sufficient specific articulable facts to support a reasonable suspicion of a motor vehicle violation or criminal activity and, therefore, improperly seized Joki's vehicle. 

D E C I S I O N

            In a pretrial appeal, this court will reverse the district court's suppression of evidence only if the state demonstrates clearly and unequivocally that (1) the district court erred in its judgment and (2) the error will have a critical impact on the outcome of the trial.  State v. Joon Kyu Kim, 398 N.W.2d 544, 547, 551 (Minn. 1987) (stating critical impact is shown where state's case is destroyed without the suppressed evidence or where absence of the evidence significantly reduces likelihood of successful prosecution).  Because suppression of the evidence of intoxication resulted in dismissal of the charges against Joki, critical impact has been shown, and the only issue is whether the state has clearly and unequivocally shown that the district court erred by suppressing the evidence.

            This court will not reverse the district court's findings of fact unless they are clearly erroneous.  State v. Shellito, 594 N.W.2d 182, 185-86 (Minn. App. 1999).  Once the facts have been established, the validity of a search is a question of law subject to de novo review.  See State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (when reviewing a pretrial order suppressing evidence where the facts are undisputed, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence needs to be suppressed).

            When a police officer stops a vehicle, it constitutes a seizure within the meaning of the Fourth Amendment, which protects citizens from unreasonable searches and seizures.  State v. Fiebke, 554 N.W.2d 755, 756 (Minn. App. 1996).  It is reasonable for a police officer to make an investigatory stop of a motor vehicle if the officer has "‘specific and articulable facts' establishing ‘reasonable suspicion' of a motor vehicle violation or criminal activity."  State v. Duesterhoeft, 311 N.W.2d 866, 867 (Minn. 1981) (citation omitted).  An investigatory stop does not require probable cause, and an actual violation need not be detectable.  Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968).

            In determining the validity of an investigatory stop, this court examines the totality of the circumstances, giving due regard to an officer's training and experience in law enforcement.  State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)).  An officer may make an investigatory stop of a vehicle if the officer can articulate a particular and objective basis for believing the stopped individual was engaged in criminal activity.  State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (citing Cortez, 449 U.S. at 417-18, 101 S. Ct. at 694-95).  The supreme court further explained the standard in State v. Pike:

The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'

 

551 N.W.2d 919, 921-22 (Minn. 1996) (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880).  Mere presence in a high-crime area will not justify a stop.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (citing Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641 (1979)).

            The state has not demonstrated clearly and unequivocally that the district court erred when it concluded that the arresting officer expressed insufficient specific articulable facts to establish reasonable suspicion of a motor vehicle violation or criminal activity to warrant a seizure of Joki's truck.  The facts articulated by the officer established only that Joki's occupied truck was in a parking lot used by nearby businesses.  The district court found that there were also other vehicles in the parking lot.  The fact that there had been vandalism problems in that area in the past was not sufficient to permit an investigatory stop of Joki's truck when the officer did not articulate a particular and objective basis for believing that an occupant of Joki's truck was engaged in criminal activity.

            The state argues that the passenger's conduct in exiting Joki's truck with his hands in the air justified the officer in making further inquiry.  The seizure of Joki's truck, however, occurred when the officer pulled the patrol car behind Joki's truck and activated the spotlight and flashing front and rear lights, before the passenger exited.  The district court found that "the officer effectively blocked the ability of [Joki] to leave the scene."  At that point, a reasonable person would not feel free to leave.

A "seizure" occurs only if, in view of all the circumstances surrounding the incident, reasonable persons would not believe they were free to leave.

 

            * * * *

 

            Courts generally have held that it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car.

 

            On the other hand, it 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.

 

State v. Day, 461 N.W.2d 404, 406-07 (Minn. App. 1990) (citations omitted) (holding that summoning by the police officer, who was in uniform and armed, requiring appellant, who was about to pump gas into his car at a filling station, to approach the officer's squad car to provide identification and to respond to questioning, constitutes a restraint and seizure under the fourth amendment), review denied (Minn. Dec. 20, 1990); see also State v. Sanger, 420 N.W.2d 241, 242-43 (Minn. App. 1988) (determining whether stop or seizure of appellant's vehicle occurred).

            Affirmed.

 

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  For purposes of the Rasmussen hearing, the parties stipulated that, after the initial contact between the officer and Joki, probable cause existed to arrest Joki for operating a motor vehicle while under the influence of alcohol.