August 10, 2017
Leave me alone when I am passed out in the road.
The week of August 7, 2017, did not leave us with any landmark law in the State of Minnesota. However, they did leave us with vomiting in an intersection. So let’s look at that. In State v. Jensen, (A16-1747), Ms. Jensen argued that her 2nd Degree DWI should be suppressed because the officer had no basis to approach her car and ask her for identification. Here are the facts:
On February 21, 2015, at 1:41 in the morning, a Hopkins police officer saw a car parked in the middle of the intersection. He noticed both car doors open and a woman, who was later identified as Ms. Jensen, kneeling over her friend, who was laying on the ground. The officer radio’ed for medical help and got out of his car. Ms. Jensen, who I can say definitely was not named Belinda, was helping her friend, who I cannot definitely say was not Julie Nelson, back into the squad car. He saw vomit on the ground and one of the two ladies said, “Fuck, is that the cops?” We will call her Carly Rae Jensen said her friend had too much to drink and she was giving her a ride home. The officer asked both ladies for identification. During this conversation, the officer noticed a strong odor of alcohol coming from her facial region. Facial region? Seriously, officer? I am glad he didn’t smell a fecal odor from the rectal region. He also noticed that Jensen had slurred speech and watery eyes. She was given a preliminary breath test and was arrested. She eventually gave a breath test that had a .20 alcohol concentration.
She challenged her seizure by the officer. The district court denied that and she entered into a Lothenbach, stipulated fact trial, pursuant to Minn. Crim. P. 26.01, subd. 4. This just means she waived her trial rights and stipulated to the State’s evidence. Meaning she didn’t quibble with the facts of the case. Where, if you look at the facts alone she was clearly guilty. She gave a test of .20 and admitted driving. Her argument was the pretrial issue of whether or not she was unlawfully seized. The stipulated facts trial allowed for her pretrial issue to be preserved for appeal after the judge found her guilty on the agreed upon evidence. So the COA took up the appeal issue.
The Fourth Amendment to the United States Constitution and article I, section 10 of the Minnesota Constitution prohibit unreasonable searches and seizures of citizens. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. But “[n]ot all encounters between the police and citizens constitute seizures.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Persons found under suspicious circumstances are not clothed with a right of privacy which prevents law-enforcement officers from inquiring as to their identity and actions. The essential needs of public safety permit police officers to use their faculties of observation and to act thereon within proper limits. It is not only the right but the duty of police officers to investigate suspicious behavior, both to prevent crime and to apprehend offenders. State v. Hollins, 789 N.W.2d 244, 249 (Minn. App. 2010).
[U]nder the totality of the circumstances test, the more intrusive a request for identification is the more likely that it will be considered an investigative stop and, thus, a seizure.” State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994). Mere questioning by a police officer at a parked car does not constitute a seizure. Harris, 590 N.W.2d at 98; (quotation omitted), review denied (Minn. Mar. 14, 1995). But if a police officer “requests identification and asks the driver to leave a vehicle, the officer must” have “specific and articulable facts which, together with reasonable inferences from those facts, reasonably warrant the intrusion.” LaBeau v. Comm’r of Pub. Safety, 412 N.W.2d 777, 779 (Minn. App. 1987).
With all due respect to Carly Jae Jepsen, which isn’t that close to Jensen, this was not a call me maybe decision. This was one easy. The car was parked in the middle of an intersection at 1:41 A.M. Way after any play at the Hopkin’s child theater would be getting out. They were also in the middle of the street. Jensen didn’t say they were acting out a scene from “Game of Thrones” where they were trying to bring Jon Snow back from the dead. Jensen said her friend was drunk. There is drunk and there is middle of the intersection drunk. It would stand to reason that if one friend was so drunk they were napping and vomiting in the middle of the street; the other friend might have indulged as well. And if that wasn’t enough, one of them expressed other dismay the very sight of the cops.
So she could have violated law three different ways. (1) Parking the car in the middle of an intersection. (2) The time of night, the passenger being drunk, the vomit, the street napping and (3) the expression of dismay, alone, was suggestive of some sort of nefarious conduct. State v. French, 400 N.W.2d 111, 116 (Minn. App. 1987). This was not a show of force. What is the police officer supposed to do here? Look at the situation and say “nothing to see here,” and drive away? The bottom line is the police can’t ask for your license for no reason. But if you are passed out in the middle of a Hopkins road at 1:41 A.M. laying next to a puddle of your own vomit; then the Jensen case says they can.
Jensen loses and there are some lessons here. One, don’t drive drunk. Two, if you are riding with someone who is so drunk you need to look like you are performing an exorcism in the middle of the road, tell that person to take an uber.
