This opinion will be unpublished and may not be cited except as provided by Minn.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 UNPUBLISHED OPINION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
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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.