State of Minnesota, Respondent, vs. Bradley Winger, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-296

 

State of Minnesota,
Respondent,
 
vs.
 
Bradley Winger,
Appellant.

 

Filed December 30, 2003

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 03007951

 

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

 

Michael J. Colich, St. Louis Park City Attorney, Darren C. Borg, Assistant City Attorney, 420 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)

 

Derek A. Patrin, Gerald Miller & Associates, P.A., Suite 101, 210 North Second Street, Minneapolis, MN 55401 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Bradley Winger challenges his conviction of third-degree driving while impaired, arguing that he was illegally seized and that evidence obtained after the seizure should have been suppressed.  Because the district court did not err in concluding that no seizure occurred until the officers observed indicia of intoxication, we affirm.

FACTS

 

Police officers, Ludgate and Ellanson, were working routine patrol duty on January 26, 2003.  At approximately 1:48 a.m., they were dispatched to an apartment building in St. Louis Park to investigate a reported disturbance in the parking lot.  When the uniformed officers arrived in their separate squad cars, the people involved in the disturbance were already gone.  While waiting for dispatch to clear the disturbance call, the officers stood in the parking lot and talked. 

            As they waited, Officer Ludgate saw appellant's vehicle enter the parking lot and park, straddling two handicapped parking spots.  Appellant and a woman exited the vehicle.  The officers could not see handicapped stickers or license plates on the vehicle.  As the couple walked to the door of the apartment building, Officer Ludgate asked them if they had handicapped license plates or decals for the vehicle.  Appellant responded that he did not.  Officer Ludgate then asked appellant to move his vehicle.  Appellant said that he was just walking his girlfriend up to her apartment and would be right back.  Officer Ludgate asked appellant to move his vehicle again and suggested an alternative spot, where appellant would not be blocking the handicapped spaces.  Appellant did not respond and "just stood there."  Officer Ellanson then also asked appellant to move his vehicle thinking that perhaps appellant did not understand Officer Ludgate's request.  During this exchange, Officer Ludgate was approximately 40 feet away from appellant, and Officer Ellanson was approximately 15 feet away.

            Because of appellant's unresponsiveness, the officers took a closer look at him.  Officer Ellanson testified that appellant's evasiveness "drew my curiosity that something was not right."  Officer Ludgate testified that appellant's eyes were red and glassy and that appellant "sway[ed] around like a pole within the wind."  Officer Ellanson moved closer to appellant and observed that appellant's eyes were watery and bloodshot and that he had an odor of alcohol.  When he was asked, appellant stated that he had consumed alcohol.  Officer Ellanson escorted appellant to his squad car and administered a portable breath test.  Based on the results of the portable breath test, Officer Ellanson arrested appellant on suspicion of driving while impaired.  

            Appellant was subsequently charged with two counts of driving while impaired and a handicapped-parking violation.  Appellant moved to suppress evidence of his drinking and driving, arguing that he was unlawfully seized when the officers asked him to move his illegally parked vehicle.  The district court denied appellant's motion, concluding that a seizure did not occur until after Officer Ellanson observed signs of intoxication and placed appellant in the rear of the squad.  The parties agreed that one count of driving while impaired would be submitted for a court trial on stipulated facts under Lothenbach.  The court found appellant guilty and sentenced him.  This appeal followed.

D E C I S I O N

 

In reviewing pretrial orders on motions to suppress evidence, appellate courts independently review the facts to determine, as a matter of law, whether the district court erred in suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  When, as here, the facts are not disputed, this court "must determine whether a police officer's actions constitute a seizure and if the officer articulated an adequate basis for the seizure."  Id.

            Appellant contends that the officers seized him when they made multiple requests that he move his illegally parked vehicle.  The Fourth Amendment of the United States Constitution and Article I, Section 10, of the Minnesota Constitution protect against unreasonable searches and seizures.  But not all encounters between the police and citizens constitute seizures.  In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).  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 (Minn. 1999).  Moreover, seizure does not result when a person, due to "moral or instinctive pressure to cooperate," complies with a request because the other person to the encounter is a police officer.  Id. 

Instead, 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) (citing Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).  The key is whether police officers convey a message that compliance with their requests is required.  Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2388 (1991).

Under the Minnesota Constitution, "a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter."  Cripps, 533 N.W.2d at 391 (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870 (1980)).  Some of the circumstances that might indicate a seizure has taken place, even where the person did not attempt to leave, 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."  E.D.J., 502 N.W.2d at 781 (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1870); see also Cripps, 533 N.W.2d at 391 (identifying similar circumstances).  "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."  E.D.J., 502 N.W.2d at 781 (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1870).

Appellant argues that he was seized when he was asked to move his vehicle and that a parking violation does not support even a brief seizure.  We agree that, in general, a police officer who merely has reasonable suspicion that a parking violation has occurred cannot seize an individual for the purpose of investigation.  State v. Holmes, 569 N.W.2d 181, 185 (Minn. 1997).  But in this case, the officers witnessed a misdemeanor parking violation and merely requested that appellant move his car to a location that would not constitute a violation.  We agree with the district court that appellant was not seized at the time the officers asked him to move his vehicle, despite the fact that the officers repeated the request several times.

Appellant relies solely on the number of requests made by the officers to appellant to move the illegally parked car to argue that a seizure occurred.  Officer Ludgate testified that after he asked appellant a couple of times to move the vehicle, "[Appellant] stood on the sidewalk and became very evasive, did not say anything to us, would not reply to any questions we had."  Officer Ellanson also testified that he began talking to appellant because "[h]e had no response, and then I started asking him I was kind of saying, hey, all my partner is saying is park it I thought maybe he didn't understand."  The multiple requests resulted from appellant's lack of a response to the officers' requests to move the vehicle, rather than an attempt by the officers to restrain appellant's liberty.  The officers did not tell appellant that he was under arrest or that he was not free to leave.    

Officer Ludgate characterized the tone of the exchange as "lighthearted":  "I remember the conversation as being pretty lighthearted on my side, because I was just, you know, I was just, hey, buddy, just move your vehicle.  That is all we are asking you to do . . . I remember it being pretty lighthearted on our part."  There is no evidence that the tone of the exchange was threatening or indicated that appellant's compliance was compelled.  And the officers were approximately 15 feet and 40 feet away at the time of the requests to move the vehicle.  The district court did not err in concluding that a seizure did not occur until the officers placed appellant in the back of the squad car to administer the portable breath test, at which time, as appellant's counsel candidly concedes, they observed signs of intoxication that supported seizure.  See Crawford v. Commissioner of Pub. Safety, 441 N.W.2d 837, 839 (Minn. App. 1989) (determining officer had basis for Fourth Amendment seizure after she observed that driver had glassy and watery eyes and smelled of alcohol).  The district court did not err in denying appellant's motion to suppress. 

            Affirmed.