MN Court of Appeals: Cop’s spotlight isn’t a ‘seizure’

It is after midnight. You’re in the parking lot of a Woodbury strip mall when a police officer blocks your car and shines his spotlight on you, walks to your door and asks you to take a breathalyzer test.

You refuse and because the law in Minnesota makes it a crime to refuse a breathalyzer test (known as “implied consent”), you lose your license.

Is this legal?

Today, the Minnesota Court of Appeals declared it is.

It said so in the case of Rita Illi who was questioned by a Woodbury police officer in November 2013.

She argued that the the police officer had “seized” her without having probable cause to do so. Because of that, her refusal to submit to testing is inadmissible in court. The district court disagreed and the Court of Appeals today said Illi wasn’t “seized.”

It is true that an officer must have reasonable suspicion to seize a person. An officer’s actions constitute a seizure when they indicate to a reasonable person that she is not free to leave.

Generally, no seizure occurs when an officer merely walks up to and speaks with a driver sitting in an already-stopped vehicle. Nor does a seizure occur simply because a person feels some “moral or instinctive pressure to cooperate” with the officer.

Because Illi had already stopped her Jeep without any police involvement before the officer walked up to her, and because the officer’s approach was not itself a seizure, we must consider whether the officer’s pre-approach conduct constituted a seizure.

The court said the officer’s car wasn’t boxing her in, so she was free to leave.

When the officer approached her car, he smell alcohol. Illi wouldn’t cooperate with breath tests, so the officer took a sample of the air around her mouth and it registered .14, well over the .08 legal limit. A subsequent search of her car found a bottle of vodka.

Illi argues that she was seized because the officer was “boxing her in” with his squad car. The argument fails on the facts.

It is true that an officer’s blocking of a vehicle may constitute a seizure because that sort of conduct might indicate to a reasonable person that she is not free to leave. But blocking in a car so as to execute a seizure occurs only when the officer actually positions his squad car so as to prevent the other vehicle from leaving.

And the district court found that Officer Kroshus was not stopped so as to prevent Illi from pulling away from behind the truck. We rely on that finding because it is supported by the evidence. Both a video recording and the officer’s testimony confirm it. Because the officer did not block in Illi’s vehicle, the squad car’s positioning did not constitute a seizure.

The question is important because had the court ruled that Illi had been seized as soon as her car was blocked and the spotlight turned on her, she could have challenged whether there was probable cause to “seize” her.

Once the officer smelled alcohol, and once she refused the breath test, however, her driver’s license suspension for doing so couldn’t be challenged.

Illi originally had questioned the constitutionality of the implied consent rule, but dropped it at oral arguments. Minnesota courts have upheld the no-refusal-allowed law despite a U.S. Supreme Court decision striking down some warrantless “searches” of drivers suspected of drunk driving.

Earlier this month, however, the U.S. Supreme Court said it will review Minnesota’s law during this term, specifically the case of a South St. Paul man who was charged with a felony for refusing to take a blood-alcohol test at a boat ramp.

In February, the Minnesota Supreme Court upheld the law. Chief Justice Lorie Gildea wrote that encouraging drivers to submit to such tests, through criminalizing their refusal, furthers the state’s interest in getting impaired drivers off the road. She says criminalizing a refusal to submit to testing is “rational.”

Eleven states have no-refusal laws similar to Minnesota’s.

  • Ben Chorn

    “The court said the officer’s car wasn’t boxing her in, so she was free to leave.”

    I’m confused. If she wasn’t seized and could have left, what would have happened?

    I feel like if I was in a parking, a police officer walked up, and I started driving away I would be pulled over for *insert any possible motive*.

    • Fred, Just Fred

      Lot of people have been shot for doing that.

  • Rob

    I think most people would agree that if it feels like seizure, it’s seizure, whether a cop car is in your path or not. If a person tried to take off when they knew a cop wanted to have a chat, the outcome would likely be ugly – and possibly fatal if they Pulled Away While Black.

    • Fred, Just Fred

      I’m sorry, did the story specify race? Or are you just incapable of tossing it in under any and all circstances.

      Cops have shot people of all races for pulling away from them.

      • Jeff C.

        “Cops have shot people of all races for pulling away from them.”

        True, but I bet a black person trying to drive away from a police office is more likely to get shot at than a white person that is trying to drive away from a police officer. I think that is the point that Anubis was trying to make.

        • Rob

          Thanks Jeff

        • Rob

          Indeed! Thanks Jeff C.

      • Rob

        yes, Fred, I’m just a tosser

      • lindblomeagles

        Thanks Jeff C. and Anubis. Fred, I think you’re a wee bit too sensitive (and quite uncomfortable) about race, and completely missed the overall point of Anubis’s argument, which was this; if whites feel uneasy about leaving the scene of a “cop stop” without the officer’s consent, just imagine how black drivers might feel under the same scenario when they are already generally heavily targeted for a variety of motor offenses. Anubis wasn’t saying whites can leave, but blacks can’t. Moreover, our society already deals with over/under racial representation metrics. The United States Congress, for instance, generally consists of an over-abundance of white elected officials, while blacks, Asians, and Latinos are usually under-represented. Basketball is at least 80% black, while hockey is usually 80% white. It happens.

        • Fred, Just Fred

          None of that has anything to do with the story at hand, or adds anything to it, heck it doesn’t even make any sense. You got the trifecta!

          I’m so comfortable with race, I don’t feel the need to wear my own like a hair shirt. It’s quite liberating!

          • Rob

            Yes, white privilege does tend to feel comfy.

          • Fred, Just Fred

            Try driving away from a cop and report back on your privilege.

        • Rob

          Thanks lindblomeagles

  • Matt Black

    “Nor does a seizure occur simply because a person feels some “moral or instinctive pressure to cooperate” with the officer.”

    That’s a really interesting line to me. Doesn’t that imply that if any officer walks up to me, I can refuse engage and just walk away as I see fit? At what point in the conversation does it become a seizure? I may be reading too much into it but that seems to lay out what the case would be for seizure in such an unclear manner that it makes it hard for everybody.

    • Mike Worcester

      I would like to see if the justices in the majority would feel any differently if they experienced the same set of circumstances as the defendant in that case. Seeing something on paper and experiencing it in real time are two completely different animals.

    • BJ

      At what point would it be failure to follow a police officer order? When would they be able to use force to stop her?

  • jon

    So, implied consent, I learned in driver’s ed. (many years ago) that if asked to, I was required to submit to an BAC test, however, it was my choice if it was a breathalyzer, blood, or urine test. Is it just the breathalyzer or nothing now?

    Also, on the sample from around her mouth, the machine likely isn’t calibrated to deal with a sample not blown in (not that it matters if she refused to submit to any BAC test at that point she already had a refusal to submit charge pending against her.)

  • lindblomeagles

    Here’s the reality regarding motor vehicle offenses. Most people generally say they weren’t speeding; they didn’t miss the light; they aren’t drunk. That’s the reason why PD’s installed vehicle cameras and radar guns. And drunk driving is still a major problem across the United States. Thus, the state has a compelling interest (safety and revenue) to make these kinds of traffic stops. That’s why the Courts have been reluctant to identify stops as seizures, unless, of course, the car is ordered towed by the police department at owner’s expense.

  • Matt

    How to respond when approached by a police officer: 1) Ask officer, “Am I under arrest?” 2) If no, tell officer that you are leaving. and say nothing further. It will force their hand to command you to stop if they have probable cause (4th Amend searc/seizure standards) or reasonable suspicions (so-called Terry stop, per Terry v. Ohio). You are under no obligation to “cooperate” with a police officer absent a warrant or a subpoena.

  • Dan Illi

    This will be her 5th dui. Got out of 1 a few years ago because she blew a .06. Notice we have the same last name. I’m not just putting in my opinion. I’m stating facts as I know from 1st hand.