This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-822

Michael Patrick Parr, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed January 4, 2000
Affirmed
Willis, Judge

Hennepin County District Court
File No. 476109

Avery L. E. Appelman, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, Michael R. Pahl, Leah Percich, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Michael Patrick Parr challenges the district court's order sustaining revocation of his driver's license. Appellant argues that the police did not have probable cause to arrest him for driving under the influence of alcohol. We affirm.

FACTS

On July 4, 1998, Officer Bruce Shores was on duty in Brooklyn Park. At approximately 7:30 p.m., he observed appellant make an "extremely wide left-hand turn" and then drive his car down the wrong side of the street and into the parking lot next to one of the buildings in the Point of America apartment complex. Officer Shores followed appellant into the parking lot and watched him pull into a parking space. Officer Shores observed that appellant was unsteady on his feet as he walked toward the building. Officer Shores accelerated his squad car to intercept appellant and used his public-address system to direct him to stop, but appellant ran into the building. Officer Shores called for backup and ran a vehicle-registration check on the car he had followed. He determined that the car was registered to appellant, whose address was apartment 305 of the building appellant entered. Officer Shores went to the third floor of the building, but could not get through a locked fire door.

Officer Shores returned to his squad car and reviewed information he had received regarding appellant's driving record, which included several alcohol-related driving offenses. Officer Shores went to the lobby of the building that he saw appellant enter, met two other officers there, and obtained a key to the fire door. The officers proceeded to unit 305, knocked on the door, and identified themselves. Appellant opened the door and stepped back, and the officers entered his apartment. The district court specifically found that appellant did not invite the officers in, and respondent does not dispute this finding.

Appellant was arrested for driving while under the influence of alcohol. His driver's license was revoked pursuant to the implied-consent law. He filed a petition for judicial review and an implied-consent hearing was held. The district court issued an order sustaining the revocation of appellant's driver's license. This appeal followed.

D E C I S I O N

I. Warrantless Entry into Appellant's Apartment

Under Minn. Stat. § 169.123, subd. 6 (1998), the commissioner must show that the police officer had probable cause to believe that the person arrested was driving, operating, or in physical control of a motor vehicle while under the influence of alcohol. Appellant argues that Officer Shores did not have probable cause to believe that he was driving under the influence and that the warrantless, nonconsensual entry into appellant's apartment makes the arrest illegal. Both the United States and Minnesota Constitutions proscribe unreasonable searches and seizures by the government of "persons, houses, papers and effects." U.S. Const. amend. IV; Minn. Const. art. I § 10. A warrantless entry into a person's home to make an arrest is reasonable only where the state can show either consent or probable cause and exigent circumstances. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996); State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). Here, it is undisputed that appellant did not consent to the warrantless entry.

A. Probable Cause

We first examine whether Officer Shores had probable cause to arrest appellant for driving under the influence of alcohol. To establish probable cause, the police must show that they "reasonably could have believed that a crime had been committed by the person to be arrested." State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989). Officer Shores observed appellant make a "very wide" left-hand turn and proceed to drive his car on the wrong side of the street. Officer Shores also observed that appellant was unsteady on his feet as he walked toward the apartment building. When Officer Shores called out for appellant to stop, he ran into the building. Based on these facts, the district court concluded that Officer Shores had probable cause to believe that appellant was driving under the influence of alcohol.

Probable cause to arrest a person for driving under the influence exists when the facts and circumstances available at the time of arrest reasonably justify a prudent and cautious officer to believe that the person was driving while under the influence. State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984). An officer need not conduct a roadside field-sobriety test or observe any of the standard physical indicia of intoxication to have probable cause to believe that a suspect is intoxicated. State v. Lee, 585 N.W.2d 378 (Minn. 1998) (holding that officer had probable cause to believe motorcycle driver in one-vehicle accident was driving under the influence where accident occurred at 3:00 a.m., in manner consistent with negligent driving, and passenger told officer that she and the driver had been at party where she had been drinking). The determination is based on the totality of the circumstances. State v. Driscoll, 427 N.W.2d 263, 265 (Minn. App. 1988). And reviewing courts should pay great deference to an officer's determination of probable cause. Olson, 342 N.W.2d at 640-41.

An after-the-fact scrutiny should not take the form of a de novo review. Rather, the duty of the reviewing court is simply to ensure that the officer had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law.

Id. at 641.

Here, appellant committed a traffic violation, and he appeared unsteady on his feet after he exited his vehicle. In addition, appellant fled to his apartment to avoid the officer, and evasive behavior is a relevant factor in making probable-cause determinations. See State v. Camp, 590 N.W.2d 115, 119 (Minn. 1999); see also Johnson v. Commissioner of Pub. Safety, 394 N.W.2d 614, 616 (Minn. App. 1986) (basing probable-cause determination, in part, on driver's act of running away from vehicle as officer approached). Officer Shores also received information from a check of appellant's driving record that appellant had "a number of previous alcohol-related offenses." See State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996) (noting that while criminal history cannot, by itself, establish probable cause, it may properly be considered as one factor in the totality of relevant circumstances). Based on the totality of the circumstances, the officer's observations provided a substantial basis for concluding that appellant was driving under the influence.

B. Exigent Circumstances

We next examine whether exigent circumstances existed to justify the warrantless entry into appellant's apartment. The United States Supreme Court has determined that exigent circumstances exist in cases of hot pursuit. United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 2409-10 (1976). And it is clear that a police officer in hot pursuit of a person suspected of driving under the influence of alcohol may make a warrantless entry into the suspect's home. See Paul, 548 N.W.2d at 266-67. The need to preserve evidence of the suspect's alcohol concentration is a compelling exigent circumstance under the "destruction of evidence" exception to the warrant requirement. Id. (citing Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966)); see State v. Storvick, 428 N.W.2d 55, 60 (Minn. 1988) (concluding that officers properly entered dwelling without warrant where hit-and-run suspect was drinking and officers needed to act quickly to ascertain suspect's alcohol concentration).

In Paul, the Minnesota Supreme Court noted that the doctrine of hot pursuit applies "whether police officers engage in a high-speed chase of the suspect * * * or merely approach a suspect who immediately retreats into a house." 548 N.W.2d at 265; see also Santana, 427 U.S. at 43, 96 S. Ct. at 2410 (holding that a suspect may not evade an arrest that has been set in motion by retreating to a private place).

The facts here are much like those in State v. Koziol, 338 N.W.2d 47 (Minn. 1983), where the Minnesota Supreme Court held that a person may not retreat into his dwelling for the purpose of defeating a warrantless arrest that has been set in motion. In Koziol, an officer was attempting to stop a van that unexpectedly sped away. Id. at 47. A chase ensued, involving a number of police officers. Id. at 48. The defendant retreated to his apartment, and when he failed to answer the knocks and announcement of authority by the police, the police obtained a key. Id. The supreme court held that because the police were in hot pursuit of the suspect when they entered his apartment, they were justified in entering without a warrant to arrest him. Id.

Here, Officer Shores observed a traffic violation by appellant, followed appellant into his parking lot, and observed that appellant was unsteady on his feet after he exited his vehicle. Officer Shores ordered him to stop, and appellant ran into his apartment building to evade the officer. Officer Shores called for backup, obtained a key to get through the fire door, and knocked on appellant's apartment announcing that he was a police officer.

We conclude that Officer Shores had probable cause to believe that appellant was driving under the influence and that the police were in hot pursuit of appellant when they entered his apartment; therefore, the warrantless entry was justified.

Affirmed.