Jeffrey L. Nielsen, Appellant, vs. Daniel G. Wall, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-98-173

State of Minnesota,
Respondent,

vs.

Mark Anthony Selbitschka,
Appellant.

Filed September 8, 1998
Affirmed
Schumacher, Judge

Dakota County District Court
File No. K4971194

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Peter J. Orput, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, Vincent Breza, Certified Student Attorney, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Mark Anthony Selbitschka challenges his conviction for possession of a short-barreled shotgun, arguing his Fourth Amendment rights were violated because he was seized and the officer lacked reasonable articulable suspicion to suspect he was involved in criminal activity. We affirm.

FACTS

On May 19, 1997, at approximately 11:05 p.m., Officer Gelhaye responded to a noise complaint received by dispatch that very loud music was coming from a vehicle in the parking lot at 75th and Dawn. On arriving at the parking lot, Gelhaye parked his squad car in a way that blocked the only exit. There was only one vehicle parked in this lot. Gelhaye spoke with the driver who identified himself as Mark Selbitschka. Immediately thereafter, Selbitschka admitted to playing the loud music.

During this encounter, Selbitschka's demeanor appeared "very nervous," and he was "very vague" in answering Gelhaye's questions. Selbitschka kept looking away from Gelhaye and focusing on the floor beneath his seat. Gelhaye asked what he was doing in the area. Selbitschka replied that he was dropping off a friend but could not remember the name of the friend. Gelhaye then inquired as to whether Selbitschka was carrying any drugs in his car or on his person. Selbitschka replied that he did not have any drugs, but he did have a marijuana pipe.

Based on these circumstances, Gelhaye asked Selbitschka for permission to search his vehicle. Selbitschka consented to the search. Gelhaye discovered another marijuana pipe underneath the passenger's seat and a loaded 20-gauge shotgun underneath the driver's seat.

Selbitschka was charged with possession of a short-barreled shotgun in violation of Minn. Stat. § 609.67, subd. 2 (1996). At the omnibus hearing, Selbitschka argued for suppression of the evidence on constitutional grounds. Selbitschka's motion was denied. He then agreed to stipulate to the state's case pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). This appeal followed.

D E C I S I O N

Where, as here, the facts are not significantly in dispute, the reviewing court must determine as a matter of law whether the officer's actions constitute a seizure and whether the officer articulated an adequate basis for the seizure. State v. Day, 461 N.W.2d 404, 406 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990).

The first question this court must resolve is whether Selbitschka was seized. The Minnesota standard for determining whether an investigatory seizure has occurred is whether a reasonable person in the defendant's position would believe that "he or she was neither free to disregard the police questions nor free to terminate the encounter." State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). If an officer simply walks up to a driver sitting in an already stopped car, this is not considered a seizure. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980). The blocking of a car by an officer, however, does constitute a seizure. Klotz v. Commissioner of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989), review denied (Minn. May 24, 1989); see also State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988) (seizure occurs where officer parks squad car in such position that prevents suspect from exiting).

In this case, Gelhaye's actions constitute a seizure. Gelhaye cornered Selbitschka in a parking lot that was no bigger than a driveway. Similar to Klotz, Gelhaye's squad car was parked in such a way that it blocked the only exit. More importantly, Gelhaye admitted at the omnibus hearing that Selbitschka was not free to leave. The show of authority by Gelhaye created a situation which gave Selbitschka reason to believe that he was not free to leave.

Next, this court must decide whether Gelhaye articulated sufficient facts justifying a seizure. For an investigatory stop or seizure to be lawful, the police officer must be able to point to specific, articulable facts that would lead to a reasonable suspicion that an individual is or may be engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968); Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2135 (1993). An officer may make this assessment based on the totality of the circumstances and may draw inferences that might elude an untrained person. Cripps, 533 N.W.2d at 391.

The factual basis for a stop may arise from information supplied by another person and does not necessarily need to come from the officer's personal observations. State v. Warren, 404 N.W.2d 895, 896 (Minn. App. 1987). A valid stop may be based on a reliable informant's report of criminal activity and an officer's confirmation of the reported criminal activity. Id. at 897. If a private citizen supplies the information, officers presume it is reliable. Id. at 896.

Here, Gelhaye responded to a citizen's complaint that a vehicle in the parking lot at 75th and Dawn was playing loud music. Approximately three minutes later, Gelhaye arrived at the small parking lot and noticed that Selbitschka's vehicle was the only vehicle in that lot. While Gelhaye did not hear loud music as he approached the vehicle, his suspicions were immediately confirmed because Selbitschka admitted that he had been playing loud music. Based on the citizen's report and Gelhaye's confirmation, he had sufficient individualized suspicion to justify a seizure.

Affirmed.