State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1077

State of Minnesota,
Respondent,

vs.

Scott Erwin Flowers,
Appellant.

Filed May 6, 2019
Affirmed
Jesson, Judge

Nicollet County District Court
File No. 52-CR-17-42

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michelle M. Zehnder Fischer, Ni collet County Attorney, James P. Dunn, Chief Deputy
County Attorney, St. Peter, Minnesota (for respondent)

Steven P. Groschen, Thomas K. Hagen, Kohlmeyer Hagen Law Office, CHTD., Mankato,
Minnesota (for appellant)

Considered and decided by Johns on, Presiding Judge; Ross, Judg e; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After responding to a 911 call, police encountered appellant S cott Erwin Flowers
parked on the wrong side of the road, facing the wrong directio n. Police subsequently

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arrested Flowers and charged him with driving while impaired (D WI) test refusal. After
denying his motion to suppress evidence on the grounds that he was unconstitutionally
seized and that his right to counsel was violated—a decision Fl owers challenges—the
district court convicted Flowers. Because police had reasonabl e, articulable suspicion to
seize Flowers and because his right to counsel was vindicated, we affirm.
FACTS
Police received a call about an SUV parked on the side of a rural, gravel road. The
caller told police that it looked like someone was in the vehicle behind the steering wheel,
but they were not moving, and he was unsure if the individual w as “passed out drunk.”
Dispatch alerted police officers who were out on patrol.
Two officers in separate police vehicles responded to the location of the SUV. The
vehicle—which had its low-beam lights on—was parked to the side of the eastbound lane
facing west, indicating that it was parked on the wrong side of the road facing the wrong
direction. One officer pulled up from the eastbound lane and positioned his vehicle slightly
to the side and in front of the SUV. The second officer, who arrived within a minute of the
first officer’s arrival, approach ed from the west bound lane and pulled up behind the
vehicle, slightly to the side. Both officers activated their emergency lights.
O n e o f f i c e r a p p r o a c h e d t h e S U V a n d b e g a n p o u n d i n g o n t h e p a s s enger-side
window. After receiving no respon se from the driver—who police later identified as
appellant Scott Erwin Flowers—both officers approached the vehicle in an effort to wake
him. Flowers eventually woke up and rolled down his window, an d the officers
immediately smelled alcohol. T he officers then asked Flowers t o get out of his vehicle.

3
Flowers could not get out of the SUV on the driver’s side because of a steep incline, so the
officers assisted Flowers in getting out on the passenger side. Flowers showed visible signs
of intoxication, including red and watery eyes and an unsteadiness in his movements. After
Flowers refused to perform a variety of field sobriety tests, one of the officers arrested him.
Police took Flowers to the county jail, where he was read the implied-consent
advisory. As part of that advisory, the officer informed Flowe rs that he had the right to
consult with an attorney before deciding whether to take a brea th test to determine if he
was intoxicated. Flowers asked t o speak with an attorney, and the officer provided him
with a telephone and a phone book. During this time, Flowers repeatedly asked to call his
wife, but the officer told him that he could not do so. After making some phone calls,
Flowers indicated that he was finished contacting an attorney. Flowers then refused to take
a breath test. The state subsequently charged Flowers with DWI-test refusal.1
Before trial, Flowers moved to suppress all evidence, arguing that police officers
unconstitutionally seized him and that his right to counsel was not vindicated. 2 At t he
motion hearing, the only testim ony presented was from one of th e police officers, who
testified to the facts described above. The officer additionally testified that it was odd for
Flowers to be parked on the wrong side of the road because ther e was ample parking on
the correct side of the road. And he clarified that he activated his emergency lights for his
own safety and the safety of other drivers. The officer also n oted that while he initially

1 The state also charged Flowers with fourth-degree DWI, which was dismissed.
2 In his motion, Flowers stated that the “stop” of his vehicle violated the U.S. Constitution,
but made clear at the motion hearing and in subsequent briefing that he was referring to the
officers’ encounter with Flowers, even though they did not actually stop him.

4
thought that Flowers may have been experiencing a medical or alcohol-related incident, it
became apparent to him that Flowers was intoxicated once he rolled down his window and
began interacting with the officers.
The district court denied Flowe rs’s motion to suppress evidenc e, concluding that
police did not unconstitutionally seize Flowers and that police honored Flowers’s right to
consult with an attorney. After the district court denied his motion, Fl ower s agreed t o
proceed with a court trial and stipulated to the state’s evidence. The district court convicted
Flowers of DWI-test refusal and sentenced him to 365 days in ja il, with 335 days stayed
for two years. Flowers appeals, arguing that the district court improperly denied his motion
to suppress evidence.
D E C I S I O N
Flowers asserts that the district court erroneously denied his motion to suppress
evidence for two reasons. First, he contends that the district court incorrectly concluded
that police officers had reasonable, articulable suspicion to s eize him. Second, Flowers
maintains that the district court erred by determining that his right to counsel was not
violated. We review each argument in turn.
I. Police officers had reasonable , articulable suspicion to seize Flowers.
Flowers argues that the district court erred by concluding that police had reasonable,
articulable suspicion to seize Fl owers when they ordered him to exit his vehicle. When
reviewing a district court’s order on a motion to suppress evid ence, this court reviews
factual findings for clear error and applies a de novo standard of review to legal
conclusions. State v. Jordan, 742 N.W.2d 149, 152 (Minn. 2007). To address Flowers’s

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argument, we must first determine whether Flowers was seized, and if so, at what moment.
If we conclude a seizure took pl ace, we then evaluate whether p olice officers had
reasonable, articulable suspicion when they seized Flowers.
Seizure of Flowers
Both the United States and Minnesota Constitutions guarantee individuals the right
to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const.
art. I, § 10. But not every encounter between police and an individual constitutes a seizure.
State v. Cripps, 533 N.W.2d 388, 390 (Minn. 1995). “[A] seizure occurs when the officer,
by means of physical force or show of authority, has in some way restrained the liberty of
a citizen.” State v. Klamar, 823 N.W.2d 687, 692 (Minn. App. 2012) (quotation omitted).
Further, a person is considered seized by police officers if, c onsidering all of the
circumstances, a reasonable person would not feel free to disregard police questions or end
the encounter. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Although a seizure generally occurs when a police officer stops a vehicle, Whren v.
United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772 (1996), courts ha ve held that
“it does not by itself constitute a seizure for an officer to s imply walk up and talk to a
person standing in a public place or to a driver sitting in an already stopped car.” State v.
Vohnoutka, 292 N.W.2d 756, 757 (Minn. 19 80). When evaluating whether po lice seized
an individual, we review the tot ality of the circumstances for factors that may indicate a
seizure occurred, including “the threatening presence of severa l officers, the display of a
weapon by an officer, some physic al touching of the person of t he citizen, or the use of
language or tone of voice indica ting that compliance with the o fficer’s request might be

6
compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980).
Further, when an officer’s squad car is used to block a parked vehicle, the stop generally
constitutes a seizure. See State v. Lopez, 698 N.W.2d 18, 22 (Minn. App. 2005); Klotz v.
Comm’r of Pub. Safety , 437 N.W.2d 663, 665 (Minn. App. 1989), review denied (Minn.
May 24, 1989); State v. Sanger , 420 N.W.2d 241, 243 (Minn. App. 1988). Here, all of
these circumstances come into play.
Two police officers in two separate police vehicles pulled diagonally in front of and
behind Flowers’s SUV, their emergency lights activated. As a result, Flowers was largely
prevented from leaving. More than one officer was present. And one officer proceeded to
bang on the window of Flowers’s SUV. Considering the totality of the circumstances, a
reasonable person in Flowers’s position would not have felt fre e to end the police
encounter. Harris, 590 N.W.2d at 98. Accordingly, we conclude that police seize d
Flowers when they parked diagonally in front of and behind his SUV, activated their
emergency lights, and pounded on his window. See Lopez, 698 N.W.2d at 22 (holding that
an individual was seized when a police officer, whose emergency lights were activated,
pulled into a parking lot, partially blocked the individual’s vehicle, and pounded on the car
window to awaken the individual).
The state maintains, and the district court concluded, that the initial police contact
before officers ordered Flowers out of the SUV did not amount to a seizure. In support of
this position, the state argues that police did not stop Flower s, had a duty to conduct a
welfare check, and that the use of emergency lights did not tra nsform the initial contact

7
into a seizure.3 But we note that our analysis of whether an individual was seized considers
the totality of the circumstances. Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877.
Although approaching a stopped vehicle or using emergency lights does not per se render
police conduct a seizure, these factors are relevant to our tot ality of the circumstances
analysis.4 Lopez, 698 N.W.2d at 22. And although an officer is generally justi fied in
conducting a welfare check if cir cumstances lead a police offic er to conclude that
something is wrong, Klamar, 823 N.W.2d at 693-94, we note that police actions during a
welfare check can still amount to a show of authority such that a reasonable person would
not feel free to leave.
Here, the presence of multiple police officers, the positioning of police vehicles, the
use of emergency lights, and the pounding on Flowers’s window w arrants the conclusion
that police actions constituted a show of authority such that a reasonable person in

3 The state also contends that because Flowers appeared to be as leep or unconscious until
after the officers pounded on his window, he was unaware of the presence of law
enforcement. Accordingly, the state argues, a reasonable, unco nscious person would not
feel as if their liberty had been restrained. Even if we adopted the state’s argument, Flowers
still would have been seized at the moment he woke up to the kn ocking on his window—
before the officers ordered him out of the vehicle—and two police vehicles with emergency
lights activated were parked diagonally in front of and behind his SUV.
4 In support of its argument regarding the use of emergency ligh ts, the state cites State v.
Hanson, 504 N.W.2d 219, 220 (Minn. 1993), a case where the supreme co urt held that a
police officer’s use of flashing red lights when pulling up and stopping behind a car on the
shoulder of a highway at night did not render the encounter a s eizure. But the supreme
court in Hanson also noted that flashing lights “m ay be used as a show of autho rity” and
acknowledged that “in many fact situations the officer’s use of the flashing lights likely
would signal to a reasonable person that the officer is attempt ing to seize the person for
investigative purposes.” 504 N.W.2d at 220. Here, the presence of two police officers and
the positioning of their vehicles both in front o f and behind F lowers’s SUV factually
distinguishes this case from Hanson.

8
Flowers’s position would not have felt free to leave. Accordingly, we conclude that police
seized Flowers before they ordered him to exit the vehicle.
Reasonable, Articulable Suspicion to Seize Flowers
Because we conclude that police officers seized Flowers, we mus t determine
whether that seizure was constitutional. One lawful basis for a seizure “is if an officer has
a particular and objective basis for suspecting the particular person [seized] of criminal
activity.” Lopez, 698 N.W.2d at 22-23 (quotation omitted). An officer’s decision to seize
a person may be justified based on the totality of the circumst ances, and an officer “may
draw inferences and deductions that might elude an untrained person.” Harris, 590 N.W.2d
at 99 (quotation omitted). But “a mere hunch, absent other obj ectively reasonable
articulable facts, will not justify a seizure.” Id.
Based on the record, the officers had reasonable, articulable s uspicion to seize
Flowers. Officers were informed of a 911 call in which the cal ler stated that he did not
know if the driver was “passed out drunk or what.” Upon respon ding to this call, the
officers saw an SUV precariously p arked on the wrong side of th e road—near a steep
drop-off—facing the wrong direction. And the SUV’s lights were still on. One officer
noted that as he responded to the call, he saw swerve marks on the road. Considering these
facts, the officers had reasonable, articulable suspicion to seize Flowers.5 Because officers

5 Flowers contends that these fact s are consistent with noncrimi nal activity and that he
“may have simply been napping.” We are not persuaded, particul arly given the officer’s
testimony that there was room for Flowers to pull over and park on the correct side of the
road.

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had reasonable, articulable suspicion to seize Flowers, the dis trict court did not err by
denying his motion to suppress evidence.
II. Police vindicated Flowers’s right to consult with an attorney.
Flowers also argues that the police officer did not honor his right to consult with an
attorney before deciding whether to submit to a breath test. Specifically, Flowers contends
that police prohibited him from contacting his wife to seek assistance finding an attorney.
The question of whether an officer has vindicated a driver’s ri ght to counsel presents a
mixed question of law and fact. Mell v. Comm’r of Pub. Safety , 757 N.W.2d 702, 712
(Minn. App. 2008). Accordingly, we review factual findings for clear error. Id. But in
cases where facts are not in dispute, we review de novo whether an individual’s right to
counsel was violated. Id.
Before deciding whether to submit to chemical testing, a drive r has the right to
consult with an attorney. State v. Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994),
review denied (Minn. June 15, 1994). As part of this right, “police officer[s] must provide
drivers [with] a telephone and a reasonable amount of time to c ontact and [speak] with
counsel.” Id. Officers must also allow a driver to contact a family member to obtain the
name and phone number of an attorney. State v. Karau, 496 N.W.2d 416, 418 (Minn. App.
1993). But police officers are not required to allow a driver to contact a non-attorney for
the purpose of seeking advice. Stefano v. Comm’r of Pub. Safety , 358 N.W.2d 83, 84-85
(Minn. App. 1984).
Here, the officer told Flowers that he had the right to consult with an attorney before
deciding whether to submit to t esting. Flowers mumbled somethi ng about talking to his

10
wife and asked if he could call her, and the officer noted that he was providing Flowers
with information about contacting an attorney. Flowers indicated that he understood what
the officer explained to him and then used the provided phone and telephone book to call—
and presumably speak with—an attorney. The officer reiterated to Flowers that he was to
use the allotted time to try and contact an attorney, not his wife. When Flowers appeared
to be finished with his conversation, the officer asked if he w as done, and Flowers again
asked if he could call his wife. The officer repeated that this was Flowers’s time to speak
with an attorney, and Flowers told the officer that he was finished doing so.
Based on this exchange, the district court determined that the officer vindicated
Flowers’s right to counsel, provided Flowers with the means and time to contact an
attorney, and that Flowers did not say anything to the officer that indicated that his wife
knew the phone number of a certain attorney or was an attorney herself. Further, the district
court concluded that based on the entire transcript, Flowers was able to speak with someone
who the officer believed was an attorney, and the officer did not force Flowers to end the
conversation. Accordingly, the district court concluded that Flowers’s right to counsel was
vindicated. We agree.
Caselaw regarding an individual’s right to consult with a fami ly member in order to
obtain an attorney’s information dictates that a driver bears t he responsibility of clearly
communicating that their reason for contacting a family member is so the family member
can assist them with cont acting an attorney. See Christiansen , 515 N.W.2d at 113
(identifying as a “crucial element” the fact that the driver did not tell the officer he wanted
to obtain the name of an attorney from his parents); Karau, 496 N.W.2d at 417 (holding

11
that a driver’s right to counsel was violated where a police of ficer did not allow him to
contact his parents when he reque sted to do so specifically to obtain the name of an
attorney).
Although Flowers perhaps implied to the officer that he wanted to call his wife for
assistance in contacting an attorn ey, nothing in the record ind icates that Flowers ever
directly told officers that his reason for contacting his wife was to obtain from her the name
of an attorney. Further, it appears Flowers was able to contact and speak with an attorney.
Accordingly, the district court correctly concluded that Flower s’s right to counsel was
vindicated.6
In sum, we conclude that police officers seized Flowers but th at the seizure was
constitutional because it was supported by reasonable, articulable suspicion. And because
Flowers did not clearly communicate to police why he wanted to contact his wife, his right
to counsel was not violated.
Affirmed.

6 Flowers appears to argue that his case is distinguishable from Christiansen because the
facts from that case indicated that the officer and the driver had an uncontentious
conversation, whereas here, Flowers was unable to fully explain why he wanted to contact
his wife because of the officer’s hostility. But again, Flower s bears the burden of
communicating with officers his purpose for wanting to contact his wife. Christiansen,
515 N.W.2d at 112-13. Because he did not communicate his reason for wanting to call his
wife, the officer did not violate Flowers’s right to counsel by not allowing him to do so.