                        This opinion will be unpublished and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
                                   A14-0691

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                              Zachary Michael Staples,
                                   Respondent.

                              Filed September 8, 2014
                              Reversed and remanded
                                 Rodenberg, Judge

                              Cass County District Court
                               File No. 11-CR-14-370

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

Christopher J. Strandlie, Cass County Attorney, Benjamin T. Lindstrom, Assistant
County Attorney, Walker, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

      Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and

Rodenberg, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant State of Minnesota challenges the district court’s pretrial ruling

suppressing evidence of respondent Zachary Michael Staples’s intoxication and
subsequent test refusal, and its derivative dismissal of the complaint for want of probable

cause. We reverse and remand.

                                          FACTS

       On March 3, 2014 at approximately 12:45 a.m. (early Monday morning), Deputy

Mark Diaz of the Cass County Sheriff’s Office was patrolling in Cass Lake. He saw a car

travel southbound past his location. The car pulled over on the street in front of the Big

Tap Bar.    Deputy Diaz testified: “I thought it was kind of strange, because to my

knowledge they’re not open on Sunday nights late because they serve alcohol. I don’t

know that they can be open.” Deputy Diaz then “looped around the block just to see if

the car would leave or if it was going to stay there or what the deal was.”

       The driver, later identified as respondent, got out of the car and then re-entered it.

Deputy Diaz testified that he then pulled his squad car behind respondent’s car, “just to

see what was going on, because I thought it was kind of strange that the vehicle was

there.”1 He did not activate the squad car’s emergency lights or siren.

       Respondent got out of his car “and walked out almost kind of away from the car

towards the middle of the street.” Deputy Diaz asked respondent for identification,

which respondent provided. When asked why he was in the area, respondent stated “that

he was there to pick up his cousin, who was supposed to be at the bar.” Deputy Diaz

testified that, while they were conversing, he “observed the odor of alcohol coming from

[respondent’s] person, and [he] asked [respondent] when he had had his last drink, and


1
  The record does not disclose if the area where appellant had parked was one with
parallel parking spaces, diagonal parking, or some other configuration.

                                             2
[respondent] stated approximately eight months ago.” Deputy Diaz asked respondent

how much alcohol he had consumed that night, and respondent answered, “[N]ot much.”

Deputy Diaz administered field sobriety tests and a preliminary breath test, from which

he concluded that respondent was under the influence of alcohol.             Respondent was

arrested and transported to jail. He was read the implied consent advisory, refused to

take a urine or blood test, and was charged with (1) second-degree driving while

impaired-test refusal in violation of Minn. Stat. § 169A.20, subd. 2, .25 (2012); (2) third-

degree driving while impaired in violation of Minn. Stat. § 169.20, subd. 1(1), .26 (2012);

and (3) driving after revocation in violation of Minn. Stat. § 171.24, subd. 2 (2012).

Respondent moved to suppress the evidence resulting from his encounter with Deputy

Diaz.

        At the omnibus hearing, Deputy Diaz testified to the above facts. Respondent

testified that he went to the Big Tap Bar to pick up his cousin, and that he initially left his

car to see whether the bar was open. He got out of his car, approached the bar, and

discovered that the bar was closed. When he turned around and went back to his vehicle,

he watched Deputy Diaz U-turn his squad car and pull in behind his car. Respondent

testified:

              So I exited my vehicle and I asked him, “Hey, what seems to
              be the problem,” you know. He’s all “What are you doing
              here?” I’m like, “Well, I’m here to pick up my cousin and
              my little brother’s birthday. You know, buy a 12-pack or 18-
              pack if they got it.”




                                              3
Respondent testified that Deputy Diaz then told him that bars are closed on Sundays in

Minnesota, but respondent disputed this and stated that only liquor stores are closed on

Sundays.2

       The district court granted respondent’s motion to suppress evidence of his

intoxication and test refusal, reasoning:

               Here, [respondent’s] vehicle was parked on a downtown
               public street. There was no indication of car trouble or driver
               distress. The Big Tap Bar is open on Sundays, although the
               Big Tap Bar was not open at that time. Except for the
               presence of [respondent] near the bar, there was no other
               indication that a burglary might be in progress. Because the
               intrusion of approaching [respondent] was not supported by a
               constitutionally sufficient reason, the evidence obtained as a
               result of the encounter shall be suppressed. Because the
               charges would then not be supported by probable cause, the
               charges shall be dismissed for lack of probable cause.

The state appeals.

                                      DECISION

       The state may appeal “pretrial orders with critical impact on the case.” State v.

Williams, 842 N.W.2d 308, 311-12 n.2 (Minn. 2014) (citing Minn. R. Crim. P. 28.04,

subd. 1(1)).   To satisfy the critical-impact test, the state must show “clearly and

unequivocally (1) that the district court’s ruling was erroneous and (2) that the ruling will

have a critical impact on the [s]tate’s ability to prosecute the case.” State v. Zais, 805

N.W.2d 32, 36 (Minn. 2011) (quotation omitted).          The parties agree that the order

appealed from has a critical impact on the state’s ability to prosecute this case, as the


2
  Minn. Stat. § 340A.504 (2012) provides that, with certain enumerated exceptions, sale
of intoxicating liquors is generally prohibited on Sundays.

                                             4
district court’s order suppressed all of the state’s evidence and dismissed the case. We

therefore consider whether the district court clearly and unequivocally erred.

       “When reviewing a district court’s pretrial order on a motion to suppress evidence,

we review the district court’s factual findings under a clearly erroneous standard and the

district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502

(Minn. 2008) (quotation omitted). Both the United States and Minnesota Constitutions

prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,

§ 10. The legality of a limited investigatory detention turns on whether the police

officer’s act constitutes a seizure and, if so, whether the state demonstrates a reasonable,

articulable suspicion for the seizure. State v. Harris, 590 N.W.2d 90, 98-99 (Minn.

1999). The district court concluded: “Because the intrusion of approaching [respondent]

was not supported by a constitutionally sufficient reason, the evidence obtained as a

result of the encounter shall be suppressed.” It therefore erred by not analyzing whether

there was a seizure, and if so, when the seizure occurred and whether it was supported by

a reasonable, articulable suspicion of criminal activity. See id. at 98.

       A seizure has occurred “when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen.” In re Welfare of E.D.J.,

502 N.W.2d 779, 781 (Minn. 1993) (quotation omitted). To determine if there has been a

seizure, we examine whether, “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.” State v. Cripps, 533 N.W.2d 388,

391 (Minn. 1995). “The reasonable person standard is an objective standard which


                                              5
ensures that the scope of [the constitutional] protection does not vary with a particular

person’s subjective state of mind.” Id.

       Generally, a seizure does not occur when an officer approaches and talks to a

person in a parked vehicle. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); see

also Norman v. Comm’r of Pub. Safety, 409 N.W.2d 544, 545 (Minn. App. 1987) (noting

that the officer did not seize the appellant by walking up to him while he was standing

outside his vehicle). Various acts indicating a seizure may include “the threatening

presence of several officers, the display of a weapon by an officer, some physical

touching of the . . . citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” State v. Pfannenstein, 525

N.W.2d 587, 588 (Minn. App. 1994) (quotation omitted), review denied (Minn. Mar. 14,

1995). Other such acts include “boxing the car in, [and] approaching it on all sides by

many officers or use of flashing lights.” State v. Sanger, 420 N.W.2d 241, 243 (Minn.

App. 1988) (quotation omitted). The Sanger court determined that

              interrogating in a conversational manner or physical contact
              that is a normal means of attracting attention may be an
              acceptable interaction if it is not overbearing or harassing in
              nature. . . . [S]uch interactions can change in character and
              become seizures if the officer engages in conduct which a
              reasonable man would view as threatening or offensive even
              if performed by another private citizen.

Id. (quotations omitted).

       The state argues that Deputy Diaz did not seize respondent at any point before he

observed indicia of intoxication. It compares this case to Pfannenstein, where a motorist

was approached by police when he was trying to start his motorcycle. 525 N.W.2d at


                                            6
588. The motorist in that case was asked if he was having trouble with his motorcycle

and was also asked for his driver’s license. Id. We determined that the officer did not

prevent the motorist from leaving, that the motorist was not “summoned” by law

enforcement, and that there was no “intimidating conduct that would indicate to a

reasonable person that he or she was not free to decline the request for identification.” Id.

at 589. Respondent argues that he was seized by Deputy Diaz and that the U-turn driving

maneuver and subsequent request for identification “conveyed to a reasonable person that

he or she was not free to leave.”

       The district court’s reasoning that Deputy Diaz “approaching” respondent

amounted to an “intrusion” requiring constitutional justification is unsupported by the

applicable caselaw. It is undisputed that respondent initially stopped his car without any

signal to do so from Deputy Diaz, who pulled in behind him after he stopped. Deputy

Diaz did not use his overhead lights or siren. Respondent got out of his car a second time

of his own volition and initiated the conversation with Deputy Diaz by asking, “Hey,

what seems to be the problem?”           Although Deputy Diaz asked respondent for

identification, he made no show of force. The record does not indicate that respondent

was compelled to produce his identification. See id. at 588 (holding that an officer’s

request for identification does not necessarily constitute a seizure). Deputy Diaz was not

limited by the United States or Minnesota Constitutions in talking to a citizen who

approached him. Once the two were engaged in conversation, Deputy Diaz noticed the

odor of alcohol on respondent.       This observation, coupled with his observation of

respondent’s recent driving, entitled Deputy Diaz to administer field sobriety tests and a


                                             7
preliminary breath test. See O’Neill v. Comm’r of Pub. Safety, 361 N.W.2d 471, 473

(Minn. App. 1985) (“[An] officer must observe one or more indicia of intoxication to

form probable cause sufficient to arrest a person for driving while under the influence of

alcohol.”). In fact, given respondent’s recent driving and his proximity to an operational

motor vehicle, Deputy Diaz would have been remiss not to have investigated further.

      The district court clearly and unequivocally erred by suppressing the evidence of

respondent’s intoxication and test refusal after respondent approached Deputy Diaz of his

own volition and evidenced signs of alcohol consumption. Respondent was not seized

until his arrest for driving while impaired. Therefore, we reverse the dismissal and

remand for further proceedings.

      Reversed and remanded.




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