Thеodore Gahner, Jr. appeals from a conviction for actual physical control of a motor vehicle and from the trial court’s denial of his motion to suppress evidence. We affirm the order denying suppression and the judgment of conviction.
On September 10, 1995, near 1:00 a.m., Officer Paul Olson was on patrol north of Napoleon. As he aрproached the parking lot of the livestock sales barn, Olson saw a lone ear backing up to a parked trailer. Knowing the sales barn was closed, Olson decided to investigate “to make sure the vehicle’s not there for illegal purposes, minors drinking, cattle stealing.” When Olson’s marked patrol car entered the parking lot, the car shut off its lights. Olson parked kitty-comer to the front of the car but did not block it. Olson left his patrol ear and approached the car on the driver’s side.
Gahner, the driver, opened his window without any direction from Olson. Olson immediately noticed a strong odor of alcohol, and saw that Gahner’s eyes were bloodshot and watering. After these observations, Olson asked Gahner to step out of his car. Gahner had very poor balance, and was unable to pass several field sobriety tests given by Olson. Olson then arrested Gahner for actual physical control of a motor vehicle. A blood test of Gahner reported an alcohol content of 0.24 percent by weight.
Before trial, Gahner moved to suppress all evidence on the grounds “that there was no reasonable and articulable suspicion to conduct an investigative stop, there is no probable cause for defendant’s arrest and the drawing of the blood sample was donе in violation of § 39-20-01.” The trial court denied suppression, finding that there was no stop at first and that Olson later had probable cause to arrest Gahner. A jury convicted Gahner.
On appeal, Gahner argues the trial court should have grantеd his motion to suppress. Gahner contends Olson did in fact make an investigative stop without an articulable suspicion to justify it. Thus, according to Gah-ner, this stop was an unconstitutional seizure, and the trial court should have suppressed all evidence resulting from it. We disagree.
When we review a trial court’s decision on suppression, we defer to its findings of fact аnd resolve conflicts in testimony in
*820
favor of affirmance.
City of Grand Forks v. Zejdlik,
The law distinguishes between approaching an already stoppеd vehicle and stopping a moving one.
State v. Franklin,
“[I]t is not a seizure for an officer to walk up to and talk to a person in а public place, including a person in a parked car. ‘[A] policeman’s approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does nоt order the person to do something, and does not demand a response.’ State v. Langseth,492 N.W.2d 298 , 300 (N.D.1992), citing Wibben v. North Dakota State Highway Comm’r,413 N.W.2d 329 , 334r-35 (N.D.1987) (Vande Waile, Justice, concurring). Still as wе explained in Langseth, if an officer learns something during a public encounter with a person that causes a reasonable suspicion or probable cause, the encounter can justify further investigation, seizure, and even arrest. A public encounter does not foreclose the officer from making observations that reasonably lead to further action.”
Zejdlik,
Here, the trial court decided Olson’s activities did not constitute an unlawful seizure:
[Gahner’s] vehicle was not moving at the time that the officer approaсhed the same, and accordingly there was no stop of [Gah-ner’s] vehicle. Further, [Gahner’s] vehicle was parked in аnd upon private property to which the public has access for vehicular use. The arresting officer having knоwledge that normal business hours had expired, and that the presence of [Gahner’s] vehicle upon said parking lot and during said period of time created an adequate and sufficient basis for the arresting officer to inquire as to the рurpose for [Gah-ner’s] vehicle to be parked thereon, and associated activities. That the same cоnstituted a reasonable exercise of the law enforcement officer’s responsibilities to secure the рerson and property of community residents.
We agree with the trial court that Olson’s initial approach was a сonsensual encounter rather than a seizure. Olson did not attempt to exercise any authority over Gahner until he had already observed signs of Gahner’s drunken state.
Olson’s encounter with Gahner became a “stop” when Olson asked Gahnеr to get out of his ear and to perform field sobriety tests.
See State v. Steinmetz,
We affirm the order denying suppression and the judgment of conviction.