                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-1794

                                  State of Minnesota,
                                      Respondent,

                                           vs.

                               Paul Joseph Cunningham,
                                       Appellant

                                  Filed July 28, 2014
                                       Affirmed
                                    Worke, Judge

                            Hennepin County District Court
                               File No. 27-CR-09-9000

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Zenaida Chico, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Brent S. Schafer, Schafer Law Firm, P.A., Lilydale, Minnesota (for appellant)

      Considered and decided by Worke, Presiding Judge; Stauber, Judge; and

Klaphake, Judge.*




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                        UNPUBLISHED OPINION

WORKE, Judge

       Appellant challenges the district court’s denial of his motion to suppress evidence

obtained after the stop of his vehicle. We affirm.

                                         FACTS

       During routine patrol in their squad car just after 1:00 a.m. on Monday, February

23, 2009, Minneapolis police officers Efrem Hamilton and Jarrod Silva came upon

appellant Paul Joseph Cunningham’s apparently unoccupied vehicle as it was parked with

its engine running and lights on. The vehicle was located in a private parking lot in an

area known to the officers for its gang and other criminal activity, particularly on

“Sunday night to Monday morning.”         The officers shined a light on the vehicle’s

windshield, and officer Hamilton said he could not see the interior headrests. Hamilton

testified that “[i]t seemed like there was something going on, and [he] wanted to make

sure everything was okay.” They decided to investigate further because the vehicle might

be involved in criminal activity and because the circumstances were “odd,” “unusual,”

and “suspicious.”

       The officers “drove up behind” Cunningham’s vehicle without activating lights or

a siren.1 The officers approached the car from either side and shone their flashlights into

it, but they could not see inside because of heavy tinting on the vehicle’s windows. The

officers then shone their lights into the vehicle’s windshield and saw Cunningham and his


1
 The district court record does not reflect whether the placement of the officers’ vehicle
blocked Cunningham’s vehicle from exiting the parking lot.

                                             2
passenger who appeared to be sleeping, passed out, or otherwise unconscious. Hamilton

knocked on the driver’s side window several times, and Silva knocked on a window with

his flashlight. According to Hamilton, Cunningham leaned up on his elbows from a

reclined position and gave him “the finger.” Hamilton noted that Cunningham could not

hold his head steady and had red, bloodshot, and watery eyes.

      Suspecting that Cunningham was under the influence, Hamilton knocked on the

window with his flashlight, illuminated his uniform with the light, and used a loud voice

so that Cunningham would know that he was serious. Cunningham initially refused

Hamilton’s directive to roll down the window, and when he complied by rolling down the

window slightly, Hamilton immediately smelled alcohol coming from inside the car.

Hamilton next directed Cunningham to roll the window all the way down and get out of

his vehicle, but instead Cunningham started to close the window. Hamilton stuck his arm

inside the window as Cunningham was closing it, and after Cunningham released his arm

Hamilton told Cunningham that he was going to break the window if Cunningham did

not get out of the car. After tests showed Cunningham’s alcohol concentration to be .08,

he was charged with two counts of third-degree driving while intoxicated (DWI).

      Cunningham’s passenger described a different factual scenario. She stated that

she and Cunningham had stopped at a bar/restaurant and had about four drinks. When

the officers arrived, she and Cunningham were in the car sobering up and she did not

notice the police. The district court found that her inability to recall key facts and her

consumption of alcohol undermined her credibility.




                                            3
       Following the omnibus hearing, the district court declined to suppress the evidence

obtained from Cunningham, concluding that he was properly seized by police. A jury

found Cunningham guilty of one count of third-degree DWI. This appeal followed.

                                      DECISION

       The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A seizure occurs if, “in view

of all of 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.” State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995); see

United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980); see State

v. Lopez, 698 N.W.2d 18, 21 (Minn. App. 2005) (stating that “[i]n determining whether a

seizure has occurred, the court determines whether a police officer’s actions would lead a

reasonable person under the same circumstances to believe that she was not free to

leave”).    If “the facts are not in dispute, a reviewing court must determine whether a

police officer’s actions constitute a seizure and if the officer articulated an adequate basis

for the seizure.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). This court “review[s]

the district court’s findings of fact under a clearly erroneous standard, . . . review[s] its

legal determinations de novo,” and defers to the district court’s credibility

determinations. State v. Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012) (citation

omitted).

       Not all contacts between police and an individual constitute a seizure. In re

Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993). A person sitting in a parked car is


                                              4
not seized when an officer merely walks up to the person and asks questions. Id. at 782.

But when police partially block a vehicle with a squad car, activate emergency lights,

pound on the vehicle’s window, and open the driver’s door, that conduct amounts to a

seizure. Lopez, 698 N.W.2d at 22. Likewise, parking a squad car to box in a vehicle,

activating the squad car’s emergency lights, and honking its horn constitutes a seizure.

State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988).

      From the omnibus hearing testimony, the district court concluded that because the

officers believed Cunningham’s car was unoccupied, their parking “behind” his vehicle

could not be objectively viewed as a seizure, and was a legitimate welfare check. When

an officer activates a squad car’s emergency lights and pulls up behind a vehicle that is

parked on a highway shoulder, that officer “would not have communicated to a

reasonable person . . . that the officer was attempting to seize the person. A reasonable

person would have assumed that the officer was not doing anything other than checking

to see what was going on and to offer help if needed.” State v. Hanson, 504 N.W.2d 219,

219-20 (Minn. 1993). The same sort of welfare check was initiated by the officers here

when they parked behind the vehicle, approached to look inside, and awakened the

sleeping or unconscious occupants.

      This case does not involve the more serious show of police authority that was

present and ruled an improper seizure under a totality-of-circumstances test in Lopez. See

698 N.W.2d at 22. Here, the officers did not activate sirens or flashing lights, initially

only shone flashlights into the vehicle, were initially unaware that the vehicle was

occupied, knocked on the windows only after they observed the physical state of its


                                            5
occupants, and directed Cunningham to exit the car only after they observed indicia of

intoxication.   The initial encounter here was to investigate welfare rather than to

immediately seize the driver.     See Klamar, 823 N.W.2d at 693 (noting that police

approach to an already parked vehicle to conduct a welfare check is not a Fourth

Amendment seizure).

       Cunningham asserts that there is no evidence to support the district court’s finding

that the officers intended to perform a welfare check on his vehicle. The officers did

testify to facts that would support a finding of reasonable suspicion of criminal activity,

but the facts also support an alternative finding that police intended to conduct a welfare

check; these findings are not mutually exclusive. Hamilton testified that because the

vehicle was running and he saw neither a headrest nor a person inside the vehicle, it was

“unusual,” “odd,” and “suspicious,” and he wanted to go check out the vehicle. Officer

Hamilton testified that he was not initially certain “what kind of incident it was” but that

he wanted to investigate why the vehicle was apparently running and unattended. Such

circumstances occurring on a February night in Minnesota suggested and supported a

welfare check that was later enlarged into an investigation of whether Cunningham was

under the influence of alcohol.

       While the initial conduct of police was permissible as a welfare check, the welfare

check ended when police were able to rouse Cunningham. But by that time, police had

reasonable suspicion that Cunningham was under the influence of alcohol. See State v.

Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (permitting expansion of scope of traffic

stop “to include investigation of other suspected illegal activity” if officer has


                                             6
“reasonable, articulable suspicion of such other illegal activity”).      In the month of

February, Cunningham and his passenger were asleep or unconscious in a car with its

engine running about the time that the bars close. And when he awakened, his eyes were

glassy, bloodshot, and red; his head was unsteady; and he gave the police “the finger.”

When he rolled down his window, he emitted a strong odor of alcohol.                  These

circumstances permitted police to reasonably believe that Cunningham had consumed

alcohol and to direct him to leave his car to submit to testing for alcohol consumption.

See LaBeau v. Comm’r of Pub. Safety, 412 N.W.2d 777, 779-80 (Minn. App. 1987)

(holding that a driver’s red and bloodshot eyes, odor of alcohol, and slurred speech

provided police with reasonable, articulable suspicion to ask the driver to leave the car to

take a breath test); Hager v. Comm’r of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App.

1986) (holding that officer had reasonable suspicion to administer preliminary breath test

when driver’s eyes were bloodshot and watery and he smelled of alcohol).

       Cunningham specifically challenges several findings that he claims are erroneous

and contributed to the district court’s ultimate erroneous conclusion that Cunningham

was legally seized. First, he claims that the district court erroneously found that the

officers “did not activate their overhead lights or siren,” because no one testified to this.

But the officers testified in detail and sequentially on each step of their encounter with

Cunningham. As such, the district court could properly infer from the officers’ testimony

that something they did not testify to did not occur. See State v. Stein, 776 N.W.2d 709,

714 (Minn. 2010) (permitting the district court to make “legitimate inferences” from the

record facts).   Second, Cunningham challenges the district court’s finding that the


                                             7
officers approached Cunningham’s vehicle out of concern that there might be some

criminal activity, although the court also found that the area was generally quiet and the

officers had not observed any criminal activity or people around the car. Cunningham

ignores other facts that suggested the possibility of criminal activity, such as that the car

was running and apparently unoccupied at a time of night when and in an area where

various types of criminal activity typically occur. Third, Cunningham challenges the

district court’s finding that his vehicle appeared to be “unoccupied.” Officer Hamilton

testified that he shone his flashlight through Cunningham’s windshield and did not see

any headrest or anyone inside the vehicle, and characterized the vehicle as “unattended.”

This testimony was sufficient to support the district court’s finding that the officers

believed the vehicle was “unoccupied.”

       Affirmed.




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