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This opinion will be unpublished and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
A18-0781

State of Minnesota,
Respondent,

vs.

Ethan Malcolm Shepherd,
Appellant.

Filed December 3, 2018
Affirmed
Johnson, Judge

Freeborn County District Court
File No. 24-CR-16-1112

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

David J. Walker, Freeborn County Attorney, Karyn D. Sackis Lunn, Assistant County
Attorney, Albert Lea, Minnesota (for respondent)

Robert M. Christenson, Robert M. Christensen, P.L.C., Minneapolis, Minnesota (for
appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Tracy M.
Smith, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Ethan Malcolm Shepherd was found guilty of driving while impaired. Before trial,
he moved to suppress evidence arising from an encounter with a deputy sheriff along the

2
side of a rural highway , but the district court denied the motion. We conclude that the
deputy sheriff did not unlawfully seize Shepherd when he approached him and spoke to
him while Shepherd was walking on the shoulder of a rural highway near a crashed vehicle.
We also conclude that Shepherd was not entitled to a Miranda warning before the deputy
sheriff asked him a few questions. Therefore, we affirm.
FACTS
On July 9, 2016, at 5:17 a.m., Deputy McKane received a report that a vehicle had
crashed into the ditch of U.S. Highway 69 in a rural part of Freeborn County approximately
two miles south of Albert Lea . In addition, Deputy McKane learned from the dispatcher
that a man wearing a plaid shirt and khaki pants was walking along the highway near the
crashed vehicle.
Deputy McKane first inspected the vehicle in the ditch, which was unoccupied.
Deputy McKane believed that the vehicle had been traveling in the southbound lane before
it veered across the northbound lane and entered the ditch on the east side of the highway.
Deputy McKane saw damage to the front of the vehicle and a “spider-webbed crack” in the
vehicle’s windshield.
Deputy McKane then drove south and, after approximately two miles, saw a man
wearing a plaid shirt and khaki pants walking on the shoulder of the highway in a southerly
direction. Deputy McKane turned on his squad car’s overhead emergency lights, pulled
up behind the man, stopped his squad car on the shoulder, and exited the squad car. Deputy
McKane approached the man, later identified as Shepherd, and had a brief conversation
with him. Deputy McKane first asked Shepherd whether he had crashed the vehicle that

3
was in the ditch; Shepherd responded that he had. Deputy McKane then asked Shepherd
why he had crashed. Shepherd said that he had consumed “a couple drinks” a few hours
earlier. Deputy McKane could smell alcohol on Shepherd’s breath and saw that he had
bloodshot and watery eyes. Deputy McKane also observed that Shepherd was confused
about where he was going because he pointed south when saying that he was walking to
Albert Lea when, in fact, he should have pointed north. Deputy McKane administered
field sobriety tests , which Shepherd failed, and administered a preliminary breath test,
which indicated that Shepherd was intoxicated.
Deputy McKane arrested Shepherd for driving while impaired and transported him
to the Freeborn County jail, where Shepherd was read the implied -consent advisory.
Shepherd indicated that he understood the advisory and that he wished to speak with an
attorney. After speaking with an attorney, Shepherd agreed to a breath test. The breath
test showed an alcohol concentration of 0.20.
Two days later, the state charged Shepherd with one count of second-degree driving
while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1) (2016), and one count of
second-degree driving while impaired with an alcohol concentration of 0.08 or more, in
violation of Minn. Stat. § 169A.20, subd. 1(5).
In August 2016 , Shepherd petitioned for the rescission of the r evocation of his
driver’s license. In November 2016, an implied -consent hearing was held. Shepherd
argued, in part, that the revocation of his license should be rescinded on the grounds that
Deputy McKane unlawfully seized him when he approached him and spoke to him on the
shoulder of the highway and that Deputy McKane failed to give him a Miranda warning

4
before obtaining incriminating statements. The commissioner of public safety presented
the testimony of Deputy McKane and the law-enforcement officer who administered the
breath test. In January 2017, the district court issued a six-page order in which it rejected
Shepherd’s arguments and denied his petition.
In April 2017, Shepherd filed a motion in the pending criminal case to suppress the
evidence arising from Deputy McKane’s road-side investigation. The motion was assigned
to a different district court judge. Neither party presented any testimony. The evidentiary
record consisted of three exh ibits: two police reports and the transcript of the implied -
consent hearing. In June 2017, the district court issued a three-page order in which it denied
Shepherd’s motion. The district court adopted and incorporated by reference the findings
of fact and conclusions of law in the January 2017 order in the implied-consent case.
In October 2017, Shepherd waived his right to a jury trial and agreed to a court trial
on stipulated facts. See Minn. R. Crim. P. 26.01, subd. 3. The district court found Shepherd
guilty of both charges. Shepherd appeals.
D E C I S I O N
Shepherd argues that, for two reasons, the district court erred by denying his motion
to suppress evidence.
I. Seizure
Shepherd first argues that the district court erred by concluding that Deputy McKane
did not unlawfully seize him by approaching him and speaking to him while he was
walking on the shoulder of the highway.

5
The Fourth Amendment to the United States Constitution guarantees the “right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. As a
general rule, a law-enforcement officer may not seize a person without probable cause. See
State v. Flowers , 734 N.W.2d 239, 248 (Minn. 2007). A law-enforcement officer may,
however, conduct a brief investigatory stop of a pedestrian if the officer has a reasonable,
articulable suspicion that the person might be engaged in criminal activity. State v.
Munson, 594 N.W.2d 128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 22, 88 S.
Ct. 1868, 1880 (1968)). A reasonable, articulable suspicion exists if “the police officer [is]
able to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at
1880. Reasonable suspicion requires “something more than an unarticulated hunch”; “the
officer must be able to point to something that objectively supports the suspicion at issue.”
State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007) (quotation omitted); see also Terry, 392
U.S. at 21-22, 88 S. Ct. at 1880.
Although a law -enforcement officer may seize a person based on a reasonable
suspicion of criminal activity, “[n]ot all encounters between the police and citizens
constitute seizures.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). An officer does
not conduct a seizure merely because the officer approaches a person in a public place and
asks the person a few questions. In re Welfare of E.D.J., 502 N.W.2d 779, 781-82 (Minn.
1993); State v. Houston, 654 N.W.2d 727, 731-32 (Minn. App. 2003), review denied
(Minn. Mar. 26, 2003). Rather, under Minnesota law, a person is seized only if, given the

6
totality of the circumstances, a reasonable person in th at situation would not feel free to
terminate the encounter. Harris, 590 N.W.2d at 98. Circumstances that tend to indicate a
seizure include the threatening presence of several officers, an officer ’s display of a
weapon, an officer ’s physical touching of the person, or the officer ’s use of language or
tone of voice indicating that compliance might be compelled. E.D.J., 502 N.W.2d at 781
(quoting United States v. Mendenhall , 446 U.S. 544, 554 -55, 100 S. Ct. 1870, 1877
(1980)). In the absence of some affirmative display of authority, “otherwise inoffensive
contact between a member of the public and the police cannot, as a matter of law, amount
to a seizure of that person.” Id. (quoting Mendenhall, 446 U.S. at 554 -55, 100 S. Ct. at
1877).1
This court applies a clear -error standard of review to a district court ’s findings of
fact concerning an alleged seizure. State v. Diede, 795 N.W.2d 836, 843 (Minn. 2011). If
the relevant facts are undisputed or are resolved by the district court, this court applies a de
novo standard of review to the question whether, given such facts, a seizure occurred. See
Harris, 590 N.W.2d at 98.

1The United States Supreme Court modified the Mendenhall test in California v.
Hodari D., 499 U.S. 621, 111 S. Ct. 1547 (1991), in which it held that a seizure occurs
“only when police use physical force to restrain a person or, absent that, when a person
physically submits to a show of authority by the police.” Id. at 626-29, 111 S. Ct. at 1550-
52; see also E.D.J., 502 N.W.2d at 780. The Minnesota Supreme Court has held that
Hodari D. does not apply to article I, section 10, of the Minnesota Constitution. E.D.J.,
502 N.W.2d at 783. Shepherd has invoked both his federal and his state const itutional
rights. To the extent that we look to federal caselaw to guide our analysis of state
constitutional law, we look only to the pre-Hodari D. caselaw.

7
In this case, Deputy McKane approached Shepherd in a public place and asked him
a few simple and obvious questions arising from the fact that Shepherd was walking on the
shoulder of a U.S. highway at an early morning hour near a vehicle that had crashed into
the ditch. The district court found that it was “extremely unusual” for Shepherd to be
walking there at that time. The district court also found that the circumstances “clearly
suggest[ed] a connection between the person walking and the abandoned vehicle.” The
district court further found that Deputy McKane approached Shepherd for the purpose of
“inquiring as to the well-being of a citizen who appeared in need of assistance.”
To resolve Shepherd’s argument, we look to the factors that typically indicate that
a law-enforcement officer has seized a person by making a brief investigatory stop. See
Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877; E.D.J., 502 N.W.2d at 781. In this case,
none of those factors are present . First, the encounter between Shepherd and Deputy
McKane did not involv e the threatening presence of several officers . Rather, Deputy
McKane was the only uniformed officer present. Second, Deputy McKane did not display
his weapon. He was carrying a service weapon in a holster, but he never removed it, and
there is no evidence that Shepherd saw it. Third, there is no evidence that Deputy McKane
physically touched Shepherd. When Deputy McKane initially approached Shepherd, he
interacted with him only verbally. Fourth, Deputy McKane testified that he spoke to
Shepherd in a conversational, non -accusatory way. There is no evidence that Deputy
McKane used language or a tone of voice that might indicate that Shepherd was compelled
to answer the deputy’s questions. Thus, the totality of circumstances supports the district

8
court’s conclusion that Deputy McKane did not seize Shepherd when he first approached
him as he was walking on the shoulder of the highway.
At oral argument, Shepherd emphasized Deputy McKane’s use of his squad car’s
overhead emergency lights. That fact does not make the encounter a se izure. In State v.
Hanson, a deputy sheriff saw a stopped car on the shoulder of a highway, parked his squad
car behind it, and activated his flashing red lights. 501 N.W.2d 677, 678 (Minn. App.
1993) (Hanson I), rev’d, 504 N.W.2d 219 (Minn. 1993) (Hanson II). This court concluded
that the driver of the stopped car had been seized, reasoning that “based upon the flashing
red lights alone, a reasonable person would not feel free to leave.” Id. at 680. But the
supreme court summarily reversed this c ourt’s opinion, reasoning that the use of flashing
red lights does not necessarily indicate a seizure and, in that particular case, “would not
have communicated to a reasonable person in these physical circumstances that the officer
was attempting to seize the person.” Hanson II, 504 N.W.2d at 220. The suprem e court
explained further as follows:
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. A reason able person in such a
situation would not be surprised at the use of the flashing lights.
It was dark out and the cars were on the shoulder of the
highway far from any town. A reasonable person would know
that while flashing lights may be used as a show of authority,
they also serve other purposes, including warning oncoming
motorists in such a situation to be careful.

Id. Likewise, this court has noted that “an officer’s use of a squad car’s flashing red lights,
when pulling up and stopping behind a car parked on the shoulder of a highway at night,
does not turn the encounter into a Fourth Amendment seizure.” State v. Klamar , 823

9
N.W.2d 687 , 692 (Minn. App. 2012). For the same reasons, Shepherd was not seized
merely because Deputy McKane used his emergency lights in the pre-dawn darkness.2
Thus, the district court did not err by concluding that Deputy McKane did not seize
Shepherd when he first approached him while he was walking on the shoulder of the
highway.3
II. Miranda Warning
Shepherd also argues that the district court erred by concluding that Deputy McKane
was not required to give him a Miranda warning before asking him a few questions on the
shoulder of the highway.
A person who is subjected to a custodial interrogation has a right to be informed of
certain constitutional rights, including the Fifth Amendment right against self -
incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 467-79, 86 S. Ct. 1602, 1612, 1624-
30 (1966). A “custodial interrogation ” exists if “questioning [is] initiated by law

2We note that the evidentiary record is unclear as to whether Deputy McKane’s
emergency lights ar e of a type that flash in a forward direction or in all directions as
opposed to the type that flash only in a backward direction. See Hoekstra v. Commissioner
of Pub. Safety, 839 N.W.2d 536, 537 (Minn. App. 2013) (noting that officer “activated his
rear emergency lights” after stopping behind truck stopped on shoulder of highway,
“believing that the truck’s driver could not see them”). In any event, our analysis does not
depend on that particular fact.
3Even if we were to conclude that Deputy McKane seiz ed Shepherd, the
circumstances likely would be sufficient to support a reasonable, articulable suspicion of
criminal activity. A vehicle had crashed into a ditch at a pre -dawn hour after crossing the
oncoming lane of traffic. A man apparently was walking away from the crashed vehicle.
In such circumstances, a law-enforcement officer would be justified in suspecting that the
pedestrian was the driver of the crashed vehicle and in suspecting that the driver was
driving while impaired. But we need not consider that issue because the state has not made
such an argument.

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enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.” Id. at 444, 86 S. Ct. at 1612; see also State
v. Heden, 719 N.W.2d 689, 694-95 (Minn. 2006). A person is in custody if there has been
a “formal arrest or restraint on freedom of movement of the degree associated with a formal
arrest.” Minnesota v. Murphy, 465 U.S. 420, 430, 104 S. Ct. 1136, 1144 (1984) (quotations
omitted); see also State v. Thompson , 788 N.W.2d 485, 491 (Minn. 2010). A person
typically is in custody if he is interviewed at the police station , if he is told that he is the
prime suspect , if his freedom of movement is restrained , if he makes a significantly
incriminating statement, if multiple officers are present, or if officers point a gun at him.
State v. Horst, 880 N.W.2d 24, 31 (Minn. 2016). A person typically is not in custody if he
is questioned only briefly, if he is free to leave at any time , or if an interview occurs in a
non-threatening environment. Id. at 31. If a person makes a statement in a custodial
interrogation without having received a Miranda warning, the person’s sta tement is
inadmissible. See Miranda, 384 U.S. at 471-72, 86 S. Ct. at 1626; State v. Tibiatowski ,
590 N.W.2d 305, 308 (Minn. 1999).
In this case, Shepherd contends that he was “in custody” for Miranda purposes
“when [Deputy McKane] turned on his overhead lights and aggressively forced him to stop
from walking down the side of the road.” As an initial matter, we note that, because
Shepherd is unable to show that he was seized when Deputy McKane first approached him,
he cannot show that he was in custody for Miranda purposes. That is so because a person
is in custody for Miranda purposes only if there has been a “formal arrest or restraint on
freedom of movement of the degree associated with a formal arrest .” Murphy, 465 U.S.

11
at 430, 104 S. Ct. at 1144 (emphasis added) (quotation omitted); see also Thompson, 788
N.W.2d at 491. If a person has not been seized, the person certainly has not been arrested
or subjected to a restraint that is equivalent to a formal arrest because that determination is
subject to a more stringent test . See Florida v. Royer , 460 U.S. 491, 497 -98, 103 S. Ct.
1319, 1324 (1983); State v. Beckman , 354 N.W.2d 432, 436 (Minn. 1984). Because
Shepherd is unable to show that he was seized when Deputy McKane first approached him,
he also is unable to show that he was in custody for Miranda purposes.
Furthermore, the factors that typically indicate a custodial interrogation for Miranda
purposes are mostly absent. See Horst, 880 N.W.2d at 31. Shepherd was not interviewed
at a police station, was not told that he was a suspect, was not restrained in his freedom of
movement, was not approached by multiple officers, and did not have a gun pointed at him.
See id. To the contrary, Deputy McKane asked him only a few questions for a very brief
period of time in a non-threatening environment without ever indicating that Shepherd was
not free to leave . See i d. Because Shepherd was not subjected to a “formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest,” Murphy,
465 U.S. at 430, 104 S. Ct. at 1144, he was not in custody for Miranda purposes.
Moreover, Shepherd’s argument is inconsistent with caselaw concerning the
applicability of Miranda during road-side investigations. In Berkemer v. McCarty , 468
U.S. 420, 104 S. Ct. 3138 (1984), the United States Supreme Court stated that the concerns
underlying the Miranda doctrine are not present in an “ordinary” or “typical” traffic stop.
Id. at 435-42, 104 S. Ct. at 3147 -52. The Court reasoned that, in such a stop, an officer
who has a reasonable suspicion that a person has engaged in criminal activity “may detain

12
that person briefly in order to investigate the circumstances that provoke suspicion.” Id. at
439, 104 S. Ct. at 3150 (quotation omitted). In doing so, “the officer may ask the detainee
a moderate number of questions to determine his identity and to try to obtain information
confirming or dispelling the officer’s suspicions.” Id. The Court further reasoned that the
“noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily
detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Id. at
440, 104 S. Ct. at 3150. The Court conclud ed in Berkemer that the facts of that case did
not present any reason to depart from the general rule that routine traffic stops do not give
rise to a custodial interrogation. See i d. at 441 -42, 104 S. Ct. at 3151 -52.4 Granted,
Shepherd was not stopped while driving his vehicle, and the district court made no finding
of a reasonable suspicion of criminal activity. But if we were to assume (contrary to our
conclusion in part I) that Shepherd was seized when Deputy McKane approached him and

4The appellate courts of this state have issued similar opinions, both before and after
Berkemer. In In re Welfare of M.A. , 310 N.W.2d 699 (Minn. 1981), the supreme court
concluded that a juvenile was not subjected to a custodial interrogation when state troopers
“questioned him on the highway near the stopped car” and, thus, “a Miranda warning was
not then required.” Id. at 700. In State v. Herem, 384 N.W.2d 880 (Minn. 1986), a deputy
sheriff stopped a motorcyclist and asked him several questions, such as whether he knew
that he was speeding, whether he had seen the patrol car, and whether he had been drinking.
Id. at 881. The supreme court reasoned that the stop was not “the functional equivalent of
formal arrest” because it “involved only a short period of time, and it was not until
defendant failed the preliminary breath test that he was informed that his detention would
not be temporary.” Id. at 883. Similarly, in State v. Kline, 351 N.W.2d 388 (Minn. App.
1984), a deputy sheriff found a vehicle “stuck in the ditch” and engaged in “general on-site
questioning” of the vehicle’s driver, asking questions such as, “‘Are you the driver?’,
‘Have you been drinking?’, ‘How much?’” Id. at 389-90. This court concluded, “The
deputy violated no rights of the defendant by not giving him a Miranda warning.” Id. at
390.

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asked him a few questions, Shepherd’s second argument would be contrary to the caselaw
providing that a Miranda warning is not required upon such a seizure.
Thus, the district court did not err by concluding that a Miranda warning was not
required when Deputy McKane approached Shepherd and asked him a few questions while
he was walking on the shoulder of the highway.
In sum, the district court did not err by denying Shepherd’s motion to suppress
evidence.
Affirmed.