State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0878

State of Minnesota,
Respondent,

vs.

Craig Edward Dauffenbach,
Appellant.

Filed March 6, 2017
Affirmed
Rodenberg, Judge

Scott County District Court
File No. 70-CR-15-51

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistan t County Attorney,
Shakopee, Minnesota (for respondent)

John L. Lucas, Valentini Law, P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Stauber, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Craig Dauffenbach challenges his conviction of third-degree DWI. He
argues that he was unconstitutionally seized the moment the police officer approached

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where he was being detained by private security because the police officer did not then
have a reasonable and articulable suspicion of criminal activity. We affirm.
FACTS
On January 1, 2015, police were dispatch ed to a casino parking lot after a call from
a casino reporting an impaired driver. A priv ate security officer employed by the casino
had observed appellant driving or about to drive a motor vehicle while apparently
influenced by alcohol. The security officer informed J.R., the security supervisor, that the
driver was unsteady on his feet, and had red, watery eyes and slurred speech. J.R. observed
appellant drive out of the parki ng lot. J.R. was informed that appellant then parked near
the casino’s main doors. When appellant again left his vehicle to walk to the casino, J.R.
approached him and observed that appellant smelled of alcohol, had watery eyes, and was
unsteady on his feet. J.R. informed appellant that the police had been called and that he
should stay by his vehicle.
Police officers responded to the casino parkin g lot. An officer spoke with J.R., who
told him that appellant had been observed dri nking alcohol, smelled of alcohol, and had
been observed driving. After speaking with J.R., the officer approached appellant. The
officer noticed that appellant’s speech was sl urred, his eyes were bloodshot and watery,
and he smelled of alcohol. Appellant conf irmed that he had consumed alcohol that
evening. The officer had appellant perform three field sobriety te sts and a preliminary
breath test (PBT). Appellant failed the field sobriety tests and had a PBT result of 0.184.
Appellant was placed under arrest and was later read the implied-consent advisory.
Appellant agreed to provide a breath test. The breath test revealed an alcohol concentration

3
of 0.16. He was charged with driving both while impaired a nd with an alcohol
concentration of 0.08 or more.
Pretrial, appellant moved the district cour t to suppress the evid ence flowing from
his arrest on the basis that the police officer did not have a reasonable suspicion to justify
the initial seizure of appellant. At the hearing on the motion to suppress, the officer testified
that appellant had not been free to leave when the officer approached the area where
appellant was being held by casi no security. The district cour t denied the motion. At a
later stipulated-evidence trial, appellant was found guilty of driving while impaired.
This appeal followed.
D E C I S I O N
Although appellant identifies two issues on appeal—namely, at what point was he
seized by the police and whethe r the police then had sufficien t suspicion to justify the
seizure—the only real issue in dispute is whether the private seizure by casino security was
instantaneously transformed into a law-enforcement seizure by a police officer arriving at
the casino. It is only by ar guing this instantaneous transf ormation of a private detention
into a law-enforcement seizure that appellant can argue that the officer did not possess a
reasonable suspicion to justify the seizure at the moment he was seized.
The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures by governmental actors. U.S. Cons t. amend. IV; Minn. Const. art. I, § 10. A
search or seizure conducted without a warrant is per se unreasonable unless it falls under
one of the few established excepti ons to the warrant requirement. State v. Ortega , 770
N.W.2d 145, 149 (Minn. 2009). An investigatory stop is one exception to the warrant

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requirement. State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (citing Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868 (1968)).
[A] police officer may temporar ily detain a su spect without
probable cause if (1) the stop wa s justified at its inception by
reasonable articulable suspicion, and (2) the actions of the
police during the stop were reasonably related to and justified
by the circumstances that gave rise to the stop in the first place.

Id. (quotations omitted).
A seizure occurs when an officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen. State v. Harris , 590 N.W.2d 90, 98
(Minn. 1999). “[A] person has been seized if in view of all of the circumstances
surrounding the incident, a reasonable person would have believed th at 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). A seizure or search by private actors will not
trigger suppression under the Fourth Amendment unless the private actor can be regarded
as an instrument or agent of the state. State v. Buswell, 460 N.W.2d 614, 618 (Minn. 1990).
When reviewing a district court’s pret rial order denying a motion to suppress
evidence, we review the district court’s factual findings under a clearly erroneous standard;
we review the district court’s legal conclusions de novo. State v. Eichers, 853 N.W.2d 114,
118 (Minn. 2014). Whether a search or seiz ure is justified by reas onable suspicion is a
legal determination that we review de novo. State v. Burbach, 706 N.W.2d 484, 487 (Minn.
2005).
Appellant agrees that the casino security personnel were not acting as instruments
or agents of the state and their actions do not implicate appellant’s Fourth Amendment

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rights. Although appellant was informed by casino security that the police were on their
way, and a police officer subsequently a rrived, there had been no action by law
enforcement to detain, question, or intimidate appellant before the police officer arrived
and directly interacted with appellant. See In re Welfare of E.D.J. , 502 N.W.2d 779, 781
(Minn. 1993) (providing examples of conduct by police that may indicate a seizure,
including “the threatening presence of severa l officers, the display of a weapon by an
officer, some physical touching of the person of the citizen, or the use of language or tone
of voice indicating that compliance with the officer’s request might be compelled” (citation
omitted)). But appellant argues he was seized when th e officer arrived at the scene. He
argues that the totality of the circumstances indi cate that he was not free to leave at that
time and that the seizure instantaneously became state action when the officer arrived.
Appellant emphasizes that the police officer testified that appellant was not free to
leave when the officer arrived at the scene. But the question is whether a reasonable person
in the circumstances would believe he was free to leave, not whether a police officer would
allow the defendant to leave. State v. Johnson, 645 N.W.2d 505, 509 (Minn. App. 2002).
Absent any conduct or communication direct ed at appellant by the police officer, we
decline to accept appellant’s contention that he was seized before the police officer directly
interacted with him.
Taken to its logical conclusion, appellant’s argument would lead to absurd results.
At oral argument, we posited a situation where a private security guard at a shopping mall
detains a person for engaging in unpopular speech protected by the First Amendment, and
police respond to the scene to investigate without knowing any de tails. Counsel for

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appellant argued that, in those circumstances , the person would be seized by police the
moment the officer arrives. But if a se izure by law enforcement immediately and
necessarily occurs whenever an officer arrives after a report of suspected criminal activity
where the suspect is being held by a private actor, a reporting officer would potentially be
subject to liability for an unconstitutional seizure even if, upon questioning those present,
the officer determines that no crime had occurred and the officer’s arrival to investigate
results in termination of the private detention. That makes no sense.
It is not necessary here that we determin e the precise point at which appellant was
seized. By the time the police officer approached appellant, the police officer already had
sufficient information from J.R. to justify a seizure. And as the police officer testified, he
determined appellant’s intoxication immediat ely by observing him. The seizure was
justified by reasonable suspicion.
Appellant also argues that the officer did not have reasonable suspicion justifying
the seizure because he came to the casino based on the unrelia ble tip of an informant.
Appellant cites Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552 (Minn. 1985), and Rose
v. Comm’r of Pub. Safety , 637 N.W.2d 326 (Minn. App. 2001), review denied (Minn.
Mar. 19, 2002), in support of his argument that an anonymous tip of a suspected impaired
driver is insufficient to create reasonable suspicion, and insufficient for the police even to
have come to the casino. But appellant’s argument that the police officer did not have
reasonable suspicion because of the security officer’s tip depends on his argument that the
seizure occurred as soon as the police officer arrived at the scene. Having concluded that

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appellant was not seized at that moment, the reliability of the telephone tip is not at issue.1
Rather, the issue is whether the officer formed reasonable suspicion before he seized
appellant. He did.
The police officer was informed by J.R. that appellant smelled of alcohol, had been
observed drinking alcohol, and was seen driv ing a vehicle. The odor of alcohol is an
indicator of intoxication, and only one objective indicator is necessary to support an arrest
for DWI. State v. Kier, 678 N.W.2d 672, 678 (Minn. 2004). The officer then approached
appellant and perceived for himself that appellant had bloodshot and watery eyes, slurred
speech, and an odor of alcohol. The police officer seized appellant after approaching and
speaking with him, and after having develope d a reasonable articulable suspicion that
appellant had been driving while impaired. The seizure of appellant was supported by
reasonable and articulable suspicion.
Affirmed.

1 The call from the casino to the police dispatcher was recorded on the casino’s surveillance
video from the incident and adm itted as evidence. In the audi o of the exhibit, the tipster
identifies herself, reports an “impaired drive r,” provides her contact information and the
details of appellant’s vehicle, and indica tes that the caller knows that appellant is
intoxicated because a security agent spoke with appellant. This specific identifying
information satisfies the requirements of Olson in any event. 371 N.W.2d at 556. But
because the police officer plainly did not seize appellant solely on the basis of the telephone
call, we do not rest our decision on this ground.