                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-1987

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                  Brian Albert Lacey,
                                      Appellant.

                                  Filed July 25, 2016
                                       Affirmed
                                    Larkin, Judge

                            Beltrami County District Court
                               File No. 04-CR-15-2159


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

Annie P. Claesson-Huseby, Beltrami County Attorney, Kristal Kadrie, Assistant County
Attorney, Bemidji, Minnesota (for respondent)

Brian Albert Lacey, Laporte, Minnesota (pro se appellant)


      Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and

Klaphake, Judge.




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                         UNPUBLISHED OPINION

LARKIN, Judge

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

arguing that a police officer unlawfully seized him. We affirm.

                                           FACTS

       Respondent State of Minnesota charged appellant Brian Albert Lacey with fourth-

degree driving while impaired (DWI). Lacey moved to suppress all evidence obtained

when a police officer approached him after he drove his truck into a parking lot where the

officer was conducting a traffic stop of another vehicle. He argued, in part, that the

approach constituted an illegal seizure. The district court held a hearing on Lacey’s

motion, heard testimony from Lacey and Officer Jessica Gage of the Bemidji Police

Department, and found the relevant facts to be as follows.

       At approximately 12:24 a.m. on July 19, 2015, Officer Gage was assisting other

officers with a traffic stop near the east exit of a parking lot in Bemidji, when she heard

what sounded like a diesel truck. Officer Gage turned and saw a truck approximately 25

yards away in the parking lot. The truck’s headlights were off. Officer Gage approached

the truck to explain to its driver, Lacey, that he could not use the east exit of the parking

lot because of the traffic stop and to advise him that the truck’s headlights were off. Officer

Gage testified that Lacey’s truck was “already coming to a stop” when she approached it.

Officer Gage used her flashlight to signal to Lacey to roll down his driver’s side window.

       Lacey rolled down his window and Officer Gage told him that the east exit was

unavailable due to the traffic stop and that his headlights were off. Lacey told Officer Gage


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that he was aware that his headlights were off. While speaking with Lacey, Officer Gage

smelled an odor of alcohol, observed that Lacey had bloodshot, watery eyes, and noted that

his speech was slurred. Officer Gage ordered Lacey out of the truck and asked him to

perform field sobriety tests. Officer Gage also asked Lacey to perform a preliminary breath

test, which registered an alcohol concentration of 0.182. Officer Gage arrested Lacey for

DWI.

       The district court denied Lacey’s motion, reasoning that “[Lacey] was not seized

when Officer Gage first approached his truck.” Lacey stipulated to the prosecution’s case

under Minn. R. Crim. P. 26.01, subd. 4, to obtain review of the district court’s denial of his

motion to suppress, and the district court found him guilty of DWI. This appeal follows.

                                      DECISION

       The Fourth Amendment of the U.S. Constitution and article I, section 10 of the

Minnesota Constitution protect “[t]he right of the people to be secure in their persons,

houses, papers, and effects” against “unreasonable searches and seizures.” However, a

police officer may initiate a limited, investigative stop without a warrant if the officer has

reasonable, articulable suspicion of criminal activity. State v. Munson, 594 N.W.2d 128,

136 (Minn. 1999). Under the Minnesota Constitution, a seizure occurs when, given the

totality of the circumstances, “a reasonable person in the defendant’s shoes would have

concluded that he or she was not free to leave.” In re Welfare of E.D.J., 502 N.W.2d 779,

783 (Minn. 1993); see also State v. Askerooth, 681 N.W.2d 353, 362 (Minn. 2004)

(explaining that article I, section 10 of the Minnesota Constitution provides greater




                                              3
protection than the Fourth Amendment, under which a seizure only occurs when the police

use physical force or a person submits to a show of authority by the police).

       “Not every interaction between the police and a citizen amounts to a seizure.” State

v. Klamar, 823 N.W.2d 687, 692 (Minn. App. 2012). “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.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). “Generally,

no seizure occurs when an officer merely walks up to and speaks with a driver sitting in an

already-stopped vehicle.” Illi v. Comm’r of Pub. Safety, 873 N.W.2d 149, 152 (Minn. App.

2015). Likewise, a seizure does not occur when “a person, due to some moral or instinctive

pressure to cooperate, complies with a request . . . because the other person to the encounter

is a police officer.” Harris, 590 N.W.2d at 99 (quotation omitted). We review a district

court’s determination whether an unconstitutional seizure has occurred de novo. Illi, 873

N.W.2d at 151.

       Lacey argues that Officer Gage seized him by “blocking a parking lot exit,

approaching in uniform, and ordering [him] to roll down his window by knocking on the

glass with a flashlight” and that the officer lacked a lawful basis to do so. The state counters

that Lacey “was not seized when [Officer Gage] approached his vehicle,” and was instead

“seized once Officer Gage smelled an odor of alcohol on [Lacey] and observed him to have

bloodshot watery eyes.” Lacey does not dispute that Officer Gage had a lawful basis to

seize him once he rolled down the window of his truck and Officer Gage observed indicia

of alcohol use. Thus, the issues on appeal are whether Officer Gage seized Lacey prior to

observing the indicia of alcohol use and, if so, whether that seizure was lawful.


                                               4
       Lacey relies on State v. Cripps, 533 N.W.2d 388 (Minn. 1995), and State v. Sanger,

420 N.W.2d 241 (Minn. App. 1988). In Cripps, the Minnesota Supreme Court held that a

bar patron was seized when a uniformed and armed officer approached her and asked her

for identification to prove that she was of legal age to consume alcohol. 533 N.W.2d at

391. In concluding that a reasonable person would not feel free to disregard the officer’s

request or terminate the encounter, the supreme court emphasized that the officer asked the

bar patron to prove her innocence of the crime of underage consumption of alcohol. Id. In

Sanger, this court held that a driver who was sitting in a parked vehicle was seized when

an officer “parked his squad car in such a position that [the driver] could not exit,” activated

his flashing red lights, and honked his horn. 420 N.W.2d at 242-44.

       The circumstances of this case are unlike those in Cripps and Sanger. First, Officer

Gage did not ask Lacey any questions—much less ask him to prove that he was innocent

of a crime—prior to the point at which Lacey contends the seizure occurred. Second, the

record does not indicate that the police prevented Lacey from leaving the parking lot.

Although the traffic stop of the other vehicle apparently prevented Lacey from using the

east exit, that exit was not the only exit. In fact, Lacey testified that when he realized the

police were conducting a traffic stop in the parking lot, he “was going to back up and go

out the other exit, the way [he] came.” Moreover, the position of the officers’ cars at the

east exit was not related to Lacey’s course of travel or an attempt to prevent him from

exiting the lot.

       Lacey argues that a “reasonable person, observing a uniformed officer approaching

and tapping on the driver’s side window with a flashlight, would not feel allowed to leave


                                               5
the scene.” It is not clear how Officer Gage used her flashlight to signal to Lacey to roll

down his window. Lacey testified that Officer Gage “tapped on the window with her mag

light [flashlight].” Officer Gage testified that she “might have waived [her] flashlight.”

But a seizure does not occur “when an officer merely walks up to and speaks with a driver

sitting in an already-stopped vehicle.” Illi, 873 N.W.2d at 152. The additional act of

tapping on the window would not have converted the interaction between Lacey and

Officer Gage into a seizure requiring reasonable, articulable suspicion of criminal activity.

Regardless of any moral or instinctive pressure that Lacey may have felt to roll down his

window and talk to Officer Gage, Officer Gage’s actions did not result in a seizure. See

Harris, 590 N.W.2d at 99 (noting that seizure does not occur when “a person, due to some

moral or instinctive pressure to cooperate, complies with a request . . . because the other

person to the encounter is a police officer” (quotation omitted)).

       In sum, the district court correctly ruled that Lacey was not seized when Officer

Gage approached his vehicle and directed him to roll down his window. We therefore do

not address Lacey’s arguments that the officer lacked a legal basis to do so.

       Affirmed.




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