State v. Reese , 1986 Minn. App. LEXIS 4409 ( 1986 )

OPINION

SEDGWICK, Judge.

On January 6, 1986, respondent Kristi Lynn Reese was charged under Minn.Stat. § 169.121 (Supp.1985) for driving while under the influence of alcohol. In a pre-trial order, the trial court suppressed evidence obtained during an investigatory stop of Reese’s car. The State appeals. We reverse.

FACTS

At 1:30 a.m. on a Sunday morning in January, Officers Daniel Griffin and Bruce Fleury of the Moorhead Police Department, on routine patrol, approached an intersection and observed two automobiles stopped in adjacent lanes blocking the intersection. Both had their engines running and headlights on. The car in the right-turn lane did not have its turn indicator on. The car in the driving lane to the left had the dome light on. The officers could observe a woman driver conversing with a man in the passenger seat. When neither car moved the officers thought it possible that an accident had occurred, that the woman was being accosted, or that there were car problems.

The officers then pulled the police car into the intersection at an angle that allowed the headlights to illuminate Reese’s car. Reese opened her door and they spoke briefly. Fleury spoke to the male passenger while Griffin asked Reese for identification. While speaking with her, Griffin observed indicia of intoxication. At his request, Reese took a preliminary breath test and failed. A subsequent blood alcohol test revealed a blood alcohol content of .14.

ISSUE

Did the trial court err in suppressing the evidence due to an improper investigatory stop?

ANALYSIS

The trial court believed there were no articulable facts nor any reasonable suspicion that a violation of law had occurred and therefore granted Reese’s motion to suppress. The question is whether the trial court erred in its application of the fourth amendment to this police investigation.

The law differentiates between an investigatory stop of a moving vehicle and an investigation of a stopped vehicle.

As stated in 3 W. LaFave, Search and Seizure, § 9.2(g) (1978), courts generally have held that it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car. See State v. Vohnoutka, 292 N.W.2d 756 (Minn.1980); Kozak v. Commissioner of Public Safety, 359 N.W.2d 625 (Minn.Ct.App.1984); Blank v. Commissioner of Public Safety, 358 N.W.2d 441 (Minn.Ct.App.1984).

In the cases involving already stopped vehicles, it is not necessary that an officer suspect criminal activity but he may arrest a driver and seize contraband if he views it in plain sight in the vehicle.

In State v. Vohnoutka, 292 N.W.2d 756, a police officer walked up to a car which had just been parked in a visibly closed service station and shined the flashlight in the car, thereby observing a large quantity of marijuana. The driver was arrested and searched incident to arrest. All seized evidence was subsequently ruled inadmissible by the trial judge as being the product of search not based on probable cause. The supreme court reversed and ruled the evidence admissible because the defendant had already stopped the car when the officers approached it. In other words, it was not necessary for the officer to stop the car or temporarily seize it in order to get into a position from which he made his observation. We note that the use of the flashlight to scan the car interior was after the officer asked the defendant if everything was all right and he said it was.

The stop óf a moving vehicle, on the other hand, requires specific and articu-lable facts, which, taken together with rational inferences from these facts, create a reasonable suspicion of criminal activity which warrant the stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Doheny v. Commissioner of Public Safety, 368 N.W.2d 1 (Minn.Ct.App.1985); State v. McKinley, 305 Minn. 297, 232 N.W.2d 906 (1975). An actual violation of a traffic law is not necessary. See Doheny, 368 N.W.2d 1.

The facts of this case do not present a seizure issue which would mandate fourth amendment protection. The officers did not stop the vehicle, it was already stopped. Even if they had stopped the vehicle, they articulated specific facts, i.e., they thought there was a possibility the woman driver was being accosted, which created a reasonable suspicion of criminal activity to warrant the stop.

The trial court here erroneously relied on Doheny to suppress the evidence. Doheny involved a police stop of a moving vehicle without any articulable facts creating a reasonable suspicion of criminal activity. The police thought the driver might be lost. Doheny is inapplicable to the facts of this case.

Here the officers did not stop the vehicles, were in a place they had every right to be, and observed the indicia of intoxication after requesting driver identification. As this court stated in Blank:

In fact, it is a common practice for police officers to walk up to cars stopped in the road, in winter, especially when their engines are running and the lights are on.

358 N.W.2d 441, 442-43.

DECISION

The trial court erred in granting the motion to suppress. Reversed.

PARKER, J., dissents.