State of Minnesota, Respondent, vs. Bradley John Deml, Appellant.

State of Minnesota, Respondent, vs. Bradley John Deml, Appellant. A06-859, Court of Appeals Unpublished, June 12, 2007.

This opinion will be unpublished and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

A06-859

 

State of Minnesota,

Respondent,

 

vs.

 

Bradley John Deml,

Appellant.

 

Filed June 12, 2007

Affirmed

Randall, Judge

 

Scott County District Court

File No. 70-CR-05-8958

 

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Patrick J. Ciliberto, Scott County Attorney; Todd P. Zettler, Special Assistant Scott County Attorney, Justice Center, JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

 

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, PA. 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant);

 

 

            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Bradley Deml appeals his conviction of gross-misdemeanor driving while impaired.  Deml argues that he was unlawfully seized when a police officer blocked his parked pickup truck, approached the truck, found him slumped over the steering wheel, and knocked on the truck's window repeatedly to get him to roll it down.  We affirm.

                                                                       

FACTS

            On April 24, 2005, at 4:27 a.m., Officer Jason Engelke saw a pickup truck parked in the parking lot of a gas station, with its parking lights on.  Engelke drove into the parking lot and asked a store employee if the truck was his.  The employee told Engelke that the truck belonged to a customer who had come into the station 45 minutes earlier and had bought some food.  The truck was the only vehicle in the parking lot, and Engelke could see that the engine was running. 

            Engelke moved his squad car immediately behind the truck, blocking its exit.  He then approached the truck on foot and saw a male, later identified as appellant Bradley Deml, "slumped over" in the driver's seat, with his fingers inside a jar of cheese dip.  Engelke knocked on the window with his knuckles "to make sure that [Deml] was okay."  Deml did not respond.  Engelke then slapped the window with his open hand.  When Deml did not respond, Engelke took his flashlight and "began rapping on the window fairly hard in an attempt to get [Deml's] attention so that [he] could talk to [Deml] and make sure that he was okay."  After approximately 15 seconds, Deml looked at Engelke, gave him a "thumbs up" sign, and put his head back down.  Engelke continued rapping on the window until Deml rolled it down.  He then smelled a strong odor of alcohol coming directly from Deml and noticed that Deml's eyes were glassy, watery, and bloodshot.  Deml was arrested for driving under the influence of alcohol after failing field-sobriety tests and providing a breath test that registered a .159 blood-alcohol level.

            Deml brought a motion to suppress evidence of his intoxication and to dismiss the charges against him, claiming that the investigatory seizure through which the evidence was obtained was unlawful.  The district court denied the motion, reasoning that the seizure was "entirely proper."  Deml then agreed to a Lothenbach stipulation and was found guilty of gross-misdemeanor driving while impaired.  This appeal from the judgment of conviction follows.

D E C I S I O N

            When reviewing a suppression order, this court reviews the facts independently to determine whether the district court erred by suppressing or not suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  In the absence of a factual dispute, whether an investigatory stop is unlawful is a question of law subject to de novo review.  Id.; State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003).

I.

            Deml first argues that he was seized when Engelke parked his squad car immediately behind Deml's parked truck and continued to knock on the window to get him to roll it down.  We agree.

            Under Minnesota law, a seizure occurs when a law-enforcement 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).  A citizen's liberty is restrained if, "taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'"  Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387 (1991) (quotation omitted); see also State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993) (stating that question reviewing court must ask is whether in light of totality of circumstances police conduct would have communicated to reasonable person that he or she was not free to leave).

            A person sitting in a parked car is not seized when a police officer merely walks up to the person to check on his welfare and determine if he needs help.  In re the Welfare of E.D.J., 502 N.W.2d 779, 782 (Minn. 1993) (acknowledging that act of approaching and questioning person seated in parked car does not constitute seizure); Paulson v. Comm'r Pub. Safety, 384 N.W.2d 244, 245-46 (Minn. App. 1986) (holding that seizure did not occur when officer pulled up behind legally parked car "to determine whether there were people in need of assistance").  But this court has found that a seizure occurs when officers use their squad cars to block a suspect's vehicle and prevent him from leaving.  See, e.g., Klotz v. Comm'r of Pub. Safety, 437 N.W.2d 663, 665 (Minn. App. 1989) (holding that seizure occurred when officer "pulled in behind [defendant's] vehicle, blocking it partially, and then called out to [defendant], who had left his vehicle and was walking away, and asked him to stop and identify himself"), review denied (Minn. May 24, 1989); State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988) (holding that seizure occurred when officer boxed in defendant's car, activated his flashing red lights, and honked).

Engelke made a show of authority sufficient to constitute a seizure when he parked his marked squad car behind Deml's truck, making it impossible for Deml to leave, and rapped on the truck's window until Deml rolled it down.  See State v. Lopez, 698 N.W.2d 18, 22 (Minn. App. 2005) (holding that officer made showing of authority sufficient to constitute seizure when officer partially blocked defendant's car, pounded on the window, and opened the driver's door); see also State v. Wiegand, 645 N.W.2d 125, 132 n.7 (Minn. 2002) (stating that seizure occurs when reasonable person would believe that he was not free to leave); Harris, 590 N.W.2d at 98 (stating that seizure occurs when reasonable person would not feel free to terminate encounter with police).  Engelke's actions restrained Deml's freedom to leave and suggested not only that he was not free to terminate the encounter but also that "compliance with [Engelke's] request might be compelled."  State v. Pfannenstein, 525 N.W.2d 587, 588 (Minn. App. 1994), review denied (Minn. Mar. 14, 1995) (quotation omitted).  Indeed, Engelke testified that he had no intention of leaving until Deml complied with his request that he roll down the window.  The district court properly concluded that Engelke "seized" Deml.

II.

Deml next argues that the seizure was unlawful because Engelke lacked a reasonable, articulable suspicion of illegal activity when he first approached the truck and the seizure was not justified by the medical exception to the warrant requirement.  We agree that Engelke lacked a reasonable suspicion of illegal activity before he approached the truck; but we conclude that the later investigation and seizure were justified by the emergency exception to the warrant requirement.

            To conduct an investigative seizure, a law-enforcement officer must have a reasonable, articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).  The officer's suspicion must be based on "specific and articulable facts that, along with rational inferences from those facts, reasonably warrant the intrusion of a stop . . . ."  State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001).  Absent a reasonable suspicion of illegal activity, an investigative seizure is justified under the emergency exception to the warrant requirement when a person is found unconscious in a vehicle or when the totality of the circumstances arouses concern for the welfare of the occupants of a parked vehicle or others.  See, e.g., Lopez, 698 N.W.2d at 23-24 (holding that officer was justified in investigating welfare of individual found unconscious in parked car in shopping-center parking lot, when officer could not determine individual's condition without rousing and communicating with her); State v. Volkman, 675 N.W.2d 337, 341 (Minn. App. 2004) (holding that "initial investigation of a motorist slumped over his steering wheel was clearly lawful"); State v. Auman, 386 N.W.2d 818, 821 (Minn. App. 1986) (holding that warrantless search of drug-overdose victim for identification was admissible under emergency exception to Fourth Amendment warrant requirement), review denied (Minn. July 16, 1986).  The emergency exception applies only if (1) the officer is motivated by the need to render help and (2) a reasonable person under the circumstances would believe that an emergency existed.  Lopez, 698 N.W.2d at 23.

            Engelke did not have a reasonable suspicion of illegal activity when he approached Deml's truck initially.  But because Engelke was motivated by the need to render help when he approached the truck on foot and reasonably believed that an emergency existed, the investigative seizure was justified by the emergency exception to the warrant requirement. 

Engelke testified that he initially approached Deml's truck out of concern for Deml's well being.  Once he reached the truck, Engelke found Deml slumped over in the driver's seat, with his fingers inside a jar of cheese dip.  At that point, Engelke had not only the right but also the duty to determine if Deml needed help.  See Kozack v. Comm'r, 359 N.W.2d 625, 628 (Minn. App. 1984) (concluding that officer has not only right but also duty to investigate vehicles parked along roadway and inquire into physical condition of occupants, who may be intoxicated or suffering from sudden illness or heart attack).  In the course of determining if Deml needed help, Engelke was permitted "to make contact with the individual and ensure that the individual d[id] not require additional medical assistance."  Lopez, 698 N.W.2d at 23 (holding that officer justified in investigating welfare of individual found unconscious in parked car in shopping-center parking lot). 

Deml argues that the investigative seizure was not justified under the emergency exception because he gave Engelke the "thumbs up" sign, indicating that he needed no help.  Given the totality of the circumstances, the "thumbs up" (thumb out of the cheese dip!) sign was meaningless, and Engelke properly disregarded it.  Engelke tried to awaken Deml repeatedly by knocking on the window with his knuckles and then with his flashlight.  Deml eventually woke up, gave Engelke the "thumbs up" sign, and put his head back down.  Based on how long it took Engelke to awaken Deml, there was a reasonable possibility that Deml was intoxicated, or suffering a heart attack, or diabetic shock, and was incapable of determining for himself whether he was in good condition.  The fact that Deml put his head back down immediately after giving Engelke the "thumbs up" sign further supports Engelke's conclusion that a further investigation was necessary.  See State v. Terrell, 283 N.W.2d 529, 532 (Minn. 1979) (stating that "‘[t]he need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal, absent an exigency or emergency.'" (quoting Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413 (1978))).

Engelke was motivated by the need to render help (and check out a possible drunk).  A reasonable law enforcement person in Engelke's situation would have believed that medical needs might exist.  The welfare check in this case was justified under the emergency exception to the warrant requirement, and, thus, the subsequent arrest was valid and led to a lawful conviction.          

Affirmed.