Miles Quinten Fiterman, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-1996

Miles Quinten Fiterman, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed April 28, 1998

Affirmed

Mansur, Judge*

Hennepin County District Court

File No. IC474860

Harlan Goulett, Avery L.E. Appleman, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

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

Considered and decided by Toussaint, Chief Judge, Foley, Judge, and Mansur, Judge.

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

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

MANSUR, Judge

Appellant Miles Quinten Fiterman challenges the district court's order upholding the commissioner's revocation of his driving license. Because Fiterman was not seized by police until after they had acquired reasonable suspicion to suspect him of driving while under the influence, we affirm the revocation of his license. FACTS

A South Lake Minnetonka police officer noticed Fiterman pull his car into a cul de sac near midnight, stop the car and turn off the lights on May 9, 1997. The officer became suspicious because he believed there were no driveways on the cul de sac. The officer then approached the car on foot and noticed the engine was still running and the driver's side window was down. The officer walked up to the driver's side window of the car, shined his flashlight inside, and observed that appellant's eyes were watery, his face was flushed, and there was a strong odor of alcohol coming from the car. The officer then asked appellant what he was doing there.

As appellant answered, the officer believed appellant was slurring his words and noticed that the smell of alcohol he had detected earlier was coming from appellant's breath. The officer then asked for appellant's identification and ordered him to exit the car. Appellant admitted he had been drinking that evening and failed a preliminary breath test. Appellant was then arrested for driving while under the influence (DWI), Minn. Stat. § 169.121 (1996).

As a result of this incident, the commissioner revoked appellant's driver's license pursuant to the implied consent statute, Minn. Stat. § 169.123, subd. 4 (1996). Appellant challenged this revocation in the district court. He asserted that the evidence that led to the revocation was obtained illegally because he was unconstitutionally seized when the officer shined a flashlight into his car and requested his identification. After the implied consent hearing, the district court found that appellant was not seized until he was ordered out of his car, and that the officer had reasonable suspicion at that point to believe that the crime of DWI had been committed.

Appellant now challenges the district court's order upholding the commissioner's revocation of his license.

D E C I S I O N

An implied consent hearing is a civil matter and thus the district court's findings will not be overturned unless clearly erroneous. Kozak v. Commissioner of Pub. Safety, 359 N.W.2d 625, 627 (Minn. App. 1984); Minn. R. Civ. P. 52.01. Whether reasonable suspicion existed to justify a police seizure of a suspect is a question of law reviewed de novo when, as here, the facts are not significantly disputed. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

Only reasonable searches and seizures of persons and their property are constitutional. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Police may initiate a limited investigatory seizure if they have reasonable articulable suspicion that a crime has been committed. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).

The police here, however, needed no reasonable suspicion to stop appellant because his vehicle was already stopped when approached by the officer. A seizure does not take place when an officer walks up to an already stopped vehicle and speaks to the driver. In re E.D.J., 502 N.W.2d 779, 782 (Minn. 1993); State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980). Furthermore, contrary to appellant's position, shining a flashlight into a stopped vehicle does not constitute a seizure as long as the officer, as here, was in a place in which he had a right to be. State v. Alesso, 328 N.W.2d 685, 687 (Minn. 1982); Vohnoutka, 292 N.W.2d at 757.

Contrary to his contention, appellant was not seized when asked by the officer what he was doing parked in the neighborhood just before midnight. Asking a suspect in a public place why he is there does not constitute a seizure. Vohnoutka, 292 N.W.2d at 757; State v. McKenzie, 392 N.W.2d 345, 347 (Minn. App. 1986).

Appellant was seized only when the officer ordered him to exit his vehicle. State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990). Even if the officer's question did constitute a seizure, the officer acquired a reasonable suspicion that the crime of DWI had been committed before appellant even began speaking. The officer smelled the strong odor of alcohol emanating from appellant's vehicle, had observed appellant driving, and noted that the car's engine was still running.

Because the seizure here was based on a reasonable articulable suspicion that appellant had committed the crime of driving while under the influence of alcohol, we conclude it was proper under article I, section 10, of the Minnesota Constitution and the Fourth Amendment.

Further, we conclude the district court's findings were not clearly erroneous, and it did not err as a matter of law in finding that appellant was lawfully seized upon reasonable suspicion. The district court properly affirmed the commissioner's revocation of appellant's driver's license.

Affirmed.