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This opinion will be unpublished and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
A19-1742

State of Minnesota,
Respondent,

vs.

Daniel James Deschene,
Appellant.

Filed November 30, 2020
Affirmed
Gaïtas, Judge

Hennepin County District Court
File No. 27-CR-18-28207

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Pr esiding Judge; Hooten , Judge; and Gaïtas,
Judge.
U N P U B L I S H E D O P I N I O N
GAÏTAS, Judge
Appellant Daniel Deschene challenges his conviction of first-degree sale of
methamphetamine, arguing that the district court erred in denying his pretrial motion to
suppress the evidence. He alleges that the arresting police officer violated his federal and

2
state constitutional rights by seizing hi m without reasonable suspicion, requiring
suppression of all evidence underlying his conviction. We conclude that the officer had an
objectively reasonable suspicion that Desche ne was involved in criminal activity, and
therefore the seizure was constitutionally valid. We affirm.
FACTS
Around 11:00 p.m. one night in May 20 18, a New Hope Police Officer on routine
patrol noticed a red sedan park ed outside of a commercial wa rehouse. The business, and
all of the other businesses in the area—also commercial warehouses—were closed at that
hour. The sedan was the only car in the parking lot. Its engine and lights were turned off
and the front windows were rolled down. The officer decided to investigate. He pulled his
squad car into the parking lot and parked at an angle about ten to 15 feet behind the sedan.
The parking lot was poorly lit, so the officer tu rned on his squad car’s spotlight to better
illuminate the area for safety reasons.
Once parked, the officer got out of his squad car and ap proached the driver’s-side
window on foot with his flashlight in hand. He observed two males seated in the front of
the sedan and one female in the rear. The o fficer asked, “What’s going on?” The driver,
who was noticeably “sweaty” and had “glossed over” eyes, told the officer they were
picking a friend up from work. In the of ficer’s experience, the driver’s appearance
suggested possible alcohol or na rcotics use. The driver’s response was also suspicious
because the businesses were closed.

3
The officer requested everyone’s identifica tion, and the front passenger identified
himself as Daniel James Deschene. Deschene used his phone to call the friend, but no one
came out of the business.
While the officer spoke with the driver, he observed Deschene fidgeting in his seat,
reaching around the passenger seat near the seatbelt buckle and between his feet on the
floor. The officer worried that Deschene wa s either reaching for a weapon or concealing
contraband. He walked around the sedan to Deschene’s open window. From that position,
the officer saw a small plastic bag on the floor near Deschene’s feet. Deschene, who was
also “sweaty” with “glossed over” eyes, closed his legs to obstruct the officer’s view of the
bag. The officer asked about the contents of the plastic bag. Deschene picked up the bag
and brought it to his knees. He told the officer it was a “sandwich baggie,” and threw it
back to the floor. But the officer could see that the bag contained a white crystal residue,
which he believed to be narcotics.
Deschene continued to shift around in hi s seat reaching near the seatbelt buckle and
the car’s center console. The officer saw Desc hene drop something behind him. At this
point, the officer opened Deschene’s door. He told Deschene to stop reaching around and
to get out of the car. Once Deschene was out of the car, the officer handcuffed him. Other
officers arrived on the scene and removed the driver and female passenger from the sedan.
A canine detection officer eventually arri ved at the scene and the dog alerted to the
presence of drugs in the sedan. Officers s earched the car and found one small safe, one
larger safe, and the plastic ba g first observed at Deschene’s feet. After obtaining search
warrants, police searched both safes and fo und suspected drugs. Subsequent testing

4
confirmed that the safes contained about 3 25 grams of methamphetamine combined and
the plastic bag seen at Deschene’s feet c ontained about 28.2 grams of methamphetamine.
Additionally, the officer who transported De schene to jail found a small amount of
marijuana and 2.2 grams of suspected crack cocaine in the back seat of the squad car where
Deschene had been seated. Finally, police found $2,270 in cash on Deschene’s person.
Following Deschene’s arrest, the state char ged him with first-degree sale of 17 or
more grams of methamphetamine, Minn. Stat. § 152.021, subd. 1(1) (2016) (count one),
first-degree possession of 50 or more grams of methamphetamine, Minn. Stat. § 152.021,
subd. 2(a)(1) (2016) (count two), and second -degree possession of 25 or more grams of
methamphetamine, Minn. Stat. § 152.022, subd. 2(a)(1) (2016) (count three). Deschene
moved to suppress all evidence seized from his person and the car. During the suppression
hearing, the district court took testimony from the arresting officer and received two
exhibits into evidence—a video recording of the incident from the officer’s dashboard
camera and an aerial map of the parking lot and surrounding area. The district court then
denied Deschene’s motion, reasoning that the officer justifiably seized Deschene when he
ordered Deschene out of the sedan.
A jury later found Deschene guilty of counts one and three and acquitted him of
count two. The district court entered a conviction on count one—sale of 17 grams or more
of methamphetamine—and sentenced De schene to prison for 95 months. 1 Deschene
appeals.

1 The district court withheld adjudication on count three because it arose “from the same
occurrence.” See Minn. Stat. § 609.035, subd. 1 (2018) (prohibiting duplicative
convictions for conduct that constitutes more than one offense).

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D E C I S I O N
When a district court’s suppression order is challenged on appeal, the appellate court
reviews factual findings for clear error and legal determinations de novo. State v. Leonard,
943 N.W.2d 149, 155 (Minn. 2020) (citation omitted). Ultimat ely, we are tasked with
“independently determin[ing], as a matter of law, whether the evidence against appellant
must be suppressed.” State v. Marsh, 931 N.W.2d 825, 829 (Minn. App. 2019). Because
the facts in this case are largely undisputed, we focus on the two legal questions. First, we
must decide when Deschene was seized. And second, we must determine whether the
officer had a lawful basis for seizing Deschene at that time.
“The United States and Minnesota Constitu tions protect the right of the people to
be secure in their persons, houses, papers, a nd effects, against unreasonable searches and
seizures.” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quotation omitted) (citing
U.S. Const. amend. IV; Minn. Const. art. I, § 10). Police may nonetheless stop and briefly
detain a citizen, without a warrant, so long as the officer can “identify specific and
articulable facts that create a reasonable suspicion of illegal activity.” State v. Davis, 910
N.W.2d 50, 53-54 (Minn. App. 2018) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,
1880 (1968)).
1. Deschene was seized when he wa s ordered to get out of the car.
To determine whether a seizure was lawful, we must first consider when the seizure
occurred. Not all exchanges between people in vehicles and the police are seizures. State
v. Cripps, 533 N.W.2d 388, 390 (Minn. 1995); State v. Klamar, 823 N.W.2d 687, 692
(Minn. App. 2012). For example, when an officer walks up to a pa rked car and speaks

6
with the driver, there is no seizure. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980).
“[A] seizure occurs when the officer, by means of physical force or show of authority, has
in some way restrained th e liberty of a citizen.” Cripps, 533 N.W.2d at 391 (quotation
omitted).
In considering whether there was a seizure, Minnesota courts use the Mendenhall-
Royer test: “a person has been seized if in view of all of the circumstances surrounding
the incident, a reasonable pers on would have believe d that he or she was neither free to
disregard the police questions nor free to terminat e the encounter.” 2 Id.; see Florida v.
Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24 (1983); United States v.
Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). Circumstances suggesting
there was a seizure typically in clude an officer’s threatening presence, the brandishing of
a weapon, physical touch, or the issuance of commands. State v. Harris, 590 N.W.2d 90,
98 (Minn. 1999). “In the absence of some su ch evidence, 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)).
Deschene argues that the officer seized him by parking behind the sedan in the
parking lot and shining his spotlight toward the vehicle. He alleges that a reasonable person
inside the vehicle would not have believed he was free to leave under these circumstances.

2 In California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 1551 (1991), the United
States Supreme Court held th at a seizure occurs under th e Fourth Amendment when the
police use physical force or a person submits to a police show of authority. Following the
Hodari decision, our supreme court declined to follow this holding, concluding that the
Minnesota Constitution affords more protection than the federal constitution. In re E.D.J.,
502 N.W.2d 779, 783 (Minn. 1993).

7
In support of this argument, Deschene cites Illi v. Comm’r of Pub. Safety , 873
N.W.2d 149, 152-53 (Minn. App. 2015), where we observed that a seizure may occur when
the police “box in” a parked car. But in Illi, we stated that “block ing 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.” Id. at 152. Here, the district court specifically
found that the sedan was not blocked in because the officer left ample room for the driver
to back out and exit the parkin g lot. The record supports this finding, and therefore it is
not clearly erroneous. See State v. Roberts, 876 N.W.2d 863, 868 (Minn. 2016) (“A factual
finding is clearly erroneous if it does not have evidentiary support in the record or if it was
induced by an erroneous view of the law.”). The officer testified that he parked his squad
car 10 to 15 feet from the rear passenger-side bumper of the sedan. Based on the position
of his squad car, he believed the sedan “could have backed straight out and went to the east
or to the west if it goes thro ugh the parking spaces.” Beca use the officer did not prevent
the sedan from leaving with his squad car, the officer’s positioning of his car near the sedan
did not alone amount to a seizure.
Moreover, the officer’s use of a spotlight to illuminate the sedan did not transform
the encounter into a seizure. The district court found, with record support, that the officer
used the spotlight to illuminate an otherwise dark scene for safety and efficiency reasons.
And this court held in Illi that the use of a spotlight for illumination is not a seizure. Illi,
873 N.W.2d at 152-53. Notably, the office r did not use his emergency lights, which are
commonly understood to require compliance. See also State v. Bergerson , 659 N.W.2d

8
791, 795 (Minn. App. 2003) (explaining th at emergency lights frequently communicate a
seizure because persons usually feel “duty bound to submit to this show of authority”).
Deschene argues in the alternative that even if there was no seizure at the very outset
of the encounter, a seizure occurred when the officer approached the sedan, flashlight in
hand, and spoke with the occu pants. But as previously noted, a police officer does not
seize an individual in a parked car by approaching the vehicle to speak with the driver, see
Vohnoutka, 292 N.W.2d at 757, and Deschene’s argument is unsupported by any contrary
authority.
We acknowledge that any encounter with the police may be uncomfortable for
many. And we recognize that in the presence of a law enforcement officer, a person may
feel a “moral or instinctive pressure to cooperate.” See Harris, 590 N.W.2d at 99. But
under Minnesota law, these feel ings do not automa tically transform an encounter into a
seizure. Id. Under the circumstances here, where the officer merely parked his squad car,
illuminated the area with his spotlight, and approached the driver, there was no seizure.
We agree with the district court that Deschene was seized later in the encounter—
when the officer ordered him to get out of th e vehicle. This conclusion guides the next
step in our analysis. We must next determine whether the officer had a valid constitutional
basis for ordering Deschene out of the car.
2. The officer had a valid constitu tional basis to seize Deschene.
Consistent with the United States and Minnesota Constitutions, a police officer may
temporarily detain an individual if the officer has a reasonable and articulable suspicion of
criminal activity. State v. Askerooth , 681 N.W.2d 353, 36 4 (Minn. 2004) (citing Terry,

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392 U.S. at 21, 88 S. Ct. at 1880). “[T]he reasonable suspicion standard ‘is not high.’”
State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006) (quoting Richards v. Wisconsin, 520
U.S. 385, 394, 117 S. Ct. 1416 (1997)). But it does “require[ ] at least a minimal level of
objective justification for making the stop.” Illinois v. Wardlow, 528 U.S. 119, 123, 120
S. Ct. 673, 676 (2000). The justificati on must be more than an “inchoate and
unparticularized suspicion or hunch” that criminal activity may occur. Terry, 392 U.S. at
27, 88 S. Ct. at 1883. An officer cannot rely on “whim, caprice, or idle curiosity” as
grounds for a seizure. State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (citing Terry, 392
U.S. at 21). Moreover, an officer must have objective support fo r the belief that an
individual is involved in criminal activity. Terry, 392 U.S. at 21, 88 S. Ct. at 1880.
In determining whether an officer’s suspicion was reas onable, the question is not
whether there was genuine suspicion; rather, the question is whethe r that suspicion was
objectively reasonable. State v. Britton, 604 N.W.2d 84, 88 (Minn. 2000). A court should
consider the totality of the circumstances in this inquiry, including the fact that trained
officers may make inferences and deductions that might be beyond the competence of a
lay person. State v. Richardson , 622 N.W.2d 823, 825 (Min n. 2001). The reasonable
suspicion standard is met when an officer “observes unusual conduct that leads the officer
to reasonably conclude in light of his or her experience that criminal activity may be afoot.”
State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (quoting In re Welfare of G.M. ,
560 N.W.2d 687, 691 (Minn. 1997)).
Although Deschene argues that the officer did not have a reasonable and articulable
suspicion of criminal activity when the officer parked his squad car and approached the

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sedan, he does not challenge the officer’s basis for ordering him out of the vehicle later in
the encounter. Given the totality of the ci rcumstances at that point—when the officer
seized Deschene by ordering him out of the car—we agree with the district court that the
seizure was valid. At that point, the offi cer reasonably believed that Deschene was
involved in criminal activity where (1) the sedan was parked outside a closed commercial
warehouse at 11 p.m.; (2) Deschene claimed his group was there to pick up a friend, but no
friend ever came out of the building; (3) both the driver and Deschene appeared sweaty
and had “glossed over” eyes, indicative of al cohol or drug impairment; (4) Deschene
engaged in fidgety and evasive behavior; and (5) the officer observed a plastic bag
containing suspected narcotics at Deschene’s feet, which Deschene attempted to conceal
from view. Because the officer had a reasona ble and articulable su spicion of criminal
activity based on these observations, the seiz ure did not violate th e federal or state
constitutions. 3 Thus, we affirm the district court’s denial of Deschene’s motion to suppress
the evidence.
Affirmed.

3 Deschene argues that the district court’s decision rests on a clearly erroneous factual
finding: “In [the officer]’s experience, vehicles are generally not parked in this area during
the nighttime unless the occupants of the vehicl e are having sex or e ngaging in criminal
drug activity such as burglari zing a business.” But as prev iously noted, a factual finding
is only clearly erroneous if it lacks evidentiary support in the record. See Roberts, 876
N.W.2d at 868. We interpret the district court’s finding as a reasonable inference from the
officer’s testimony, and therefore conclude it is not clearly erroneous. And in any event,
this finding is not critical to the determination that the officer had a valid basis for seizing
Deschene by ordering him out of the car.