This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).








State of Minnesota,





James Clifford Akins,




Filed March 14, 2000

Affirmed and remanded for sentencing

Lansing, Judge


Hennepin County District Court

File No. 98068700


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)


James W. Delaplain, Lang, Pauly, Gregerson & Rosow, Ltd., 1600 Park Building, 650 Third Avenue South, Minneapolis, MN 55402 (for respondent)


Andrew S. Birrell, R. Travis Snider, Birrell, Dunlap & Ritts, Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN 55403 (for appellant)


††††††††††† Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

U N P U B L I S H E D†† O P I N I O N


††††††††††† On stipulated evidence, following denial of a suppression motion, the district court found James Akins guilty of gross misdemeanor driving under the influence, careless driving, and obstructing legal process.Akins appeals, arguing primarily that the district court erroneously denied his suppression motion and that therefore he is entitled to a new trial.Because the record establishes no constitutional or procedural error, we affirm.


††††††††††† A Minnesota state trooper arrested James Akins after a sequence of events triggered by a citizenís 911 report of dangerously erratic driving.The citizen, driving home from work, reported by cell phone to a police dispatcher that a car driving alternately very fast and very slow was swerving from lane to lane in heavy traffic, only narrowly missing a median barrier and, with flashers activated, was driving on the shoulder of the road.The citizen later testified she thought the driver might have been having a seizure.

††††††††††† At the dispatcherís request, the citizen followed the car and remained in phone contact with the dispatcher until a state trooper, responding to the police dispatch, intercepted the cars.The trooper, with his red lights activated, followed the car for two blocks until it turned into a residential driveway.The trooper saw an overhead garage door open and the car pull into the garage.

††††††††††† The trooper drove into the driveway, parked behind the car, and walked through the open overhead door into the garage to ask the driver about his driving conduct.The trooper asked for Akinsís license and, because he smelled the odor of alcoholic beverages, asked Akins how much he had to drink.Akins replied, ďToo much,Ē and the trooper asked Akins to walk with him back to the squad.Akins had difficulty maintaining his balance as he followed the trooper.As the trooper began to explain the field sobriety tests he intended to conduct, Akins ran into the garage and toward a door within the garage that led to the residence.The trooper told Akins he was under arrest and ordered him to stop.The trooper followed Akins and, after a short struggle inside the house, subdued Akins and then transported him to the Eden Prairie police station.Akins completed a chemical test that disclosed a .24 blood-alcohol concentration.

††††††††††† The district court denied Akinsís motion to dismiss the complaint and to suppress evidence obtained as a result of his seizure and arrest.Akins appeals, contending that (1) the trooper violated his Fourth Amendment rights by the warrantless entry into his garage, (2) the trooper violated his Fourth Amendment rights because the trooper did not have an articulable basis to stop Akinsís car, and (3) the state violated his due-process rights by forcing him to relitigate an issue previously conceded by the state in the implied-consent proceeding.



††††††††††† When reviewing a search or seizure challenge under the Fourth Amendment to the United States Constitution, the reviewing court may independently analyze undisputed facts to determine, as a matter of law, whether evidence resulting from the search or seizure should be suppressed.State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).To claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place where the search or seizure occurred and that society recognizes his expectation as reasonable.Minnesota v. Carter, 525 U.S. 83, __, 119 S. Ct. 469, 473 (1998).

††††††††††† The Fourth Amendment protects against unreasonable searches and seizures in a personís home and its curtilage.U.S. v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139 (1987).In determining whether an area is within the curtilage, the Supreme Court considers four factors: (1) the proximity of the area to the house; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses of the area; and (4) the steps taken by the resident to protect the area from observation by people passing by.Id. at 301, 107 S. Ct. at 1139.These four factors ďbear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.ĒId.

††††††††††† In two cases, Minnesota appellate courts have held that curtilage includes the garage.State v. Crea, 305 Minn. 342, 345, 233 N.W.2d 736, 739 (1975); Tracht v. Commír of Pub. Safety, 592 N.W.2d 863, 865 (Minn. App. 1999), review denied (Minn. July 28, 1999).But in both Crea and Tracht, the courts further hold that police did not violate the Fourth Amendment when, for legitimate business reasons, they entered areas of the curtilage that were impliedly open to the public.Crea, 305 Minn. at 346, 233 N.W.2d at 739 (police conducting an investigation may walk on the sidewalk and onto porch of house and are free to make observations); Tracht, 592 N.W.2d at 865 (police entry into open garage to knock on residence door equivalent to entry into porch).

State courts interpreting the Fourth Amendment have generally recognized that police do not violate the Fourth Amendment by going on private property to investigate if they restrict their movements to places visitors would be expected to go, such as walkways, driveways, or porches.1 Wayne R. LaFave, Search and Seizure ß 2.3(f), at 507-08 (1996); see also State v. Ryea, 571 A.2d 674, 675 (Vt. 1990) (curtilage providing normal access for visitors is not entitled to absolute protection under Fourth Amendment); State v. Seagull, 632 P.2d 44, 47 (Wash. 1981) (presence of officer within curtilage is not per se Fourth Amendment violation); In re Gregory S., 169 Cal. Rptr. 540, 546 (Cal. App. 1980) (no Fourth Amendment violation when officer enters area where public is implicitly invited).The state court decisions rely on the principle that police should not be prevented from entering the areas used by social visitors in which people do not usually have a reasonable expectation of privacy.See People v. Thompson, 270 Cal. Rptr. 863, 873 (Cal. App. 2d 1990) (no reasonable expectation of privacy in areas where public has been implicitly invited); Seagull, 632 P.2d at 47 (ď[a]n officer is permitted the same license to intrude as a reasonably respectful citizenĒ) (citation omitted).

††††††††††† The state court cases that suspend Fourth Amendment protections in areas of curtilage used for public access appear to be at odds with the Supreme Courtís curtilage analysis, which inquires whether an area is within curtilage and, if so, affords it the same protection as the house itself.See Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742 (1984) (curtilage considered part of home for Fourth Amendment purposes).But because both analyses ultimately seek to determine whether a person has a reasonable expectation of privacy in an area, the varying analytical approach is not legally significant.The factors of the analysis are the same; only the order in which the factors are applied varies.Compare Dunn, 480 U.S. at 300, 107 S. Ct. at 1139 (determination of whether area is curtilage depends upon reasonable expectations of privacy), with Thompson, 270 Cal. Rptr. at 873 (determination of whether curtilage is protected depends upon reasonable expectations of privacy).

††††††††††† Akins argues that the reasoning in Crea and Tracht does not apply in this case because his garage is attached and integrated into the architecture of his house in a way that the garage in Crea and Tracht were not.We do not see an adequate distinction between the Crea-Tracht facts and the facts in this case to justify a different result.

††††††††††† In Crea, the garage was not attached to the house, but the court also considered whether the police could look into a walk-in basement.305 Minn. at 346, 233 N.W.2d at 740.The police in Crea walked on the driveway and in other areas within the curtilage.Id. at 343-44, 233 N.W.2d at 738.The Crea court focused on whether the police were entering into areas of the curtilage ďimpliedly open to use by the public.ĒId. at 346, 233 N.W.2d at 739.In Tracht, the garage was attached to the house and, like Akinsís garage, had a door between the house and the garage.592 N.W.2d at 865.And in Tracht, as in this case, the garage had a large overhead door that was open when the police entered.Id.Peopleís expectations for access areas of their premises commonly differ from their expectations for more secluded areas.State v. Corbett, 516 P.2d 487, 490 (Or. Ct. App. 1973).In the course of urban life, members of the public, including neighbors, friends, postal workers, newspaper deliverers, and salespeople, commonly approach doorways that are the obvious points to gain access to the living quarters.Id.

We conclude that Akins did not have a reasonable expectation of privacy in the garage, with its overhead door open, that would require the trooper to stop at its threshold and obtain a warrant before questioning him.The garage may not be the usual means of access to a home.But members of the public would reasonably assume that they could use it, when the overhead door was open, to talk to a resident who himself is using the garage as a means of access.Police may reasonably do the same.The holding of Tracht applies to the facts of this case, and the trooperís warrantless entry into the garage did not violate Akinsís Fourth Amendment rights.

††††††††††† Parenthetically, we note that a number of jurisdictions would find that the officerís entry into the garage did not violate the Fourth Amendment even if Akins had a reasonable expectation of privacy in his garage.These jurisdictions hold that police may enter a home to complete a lawful investigative stop when the stop is initiated in a public place but the suspect flees inside the home before the stop can be completed.See Alto v. City of Chicago, 863 F. Supp. 658, 661-62 (N.D. Ill. 1994) (ďan officer who stops a person because of a reasonable, articulable suspicion of criminal activity need not terminate the stop merely because the suspect flees to his homeĒ) (citations omitted); Harbin v. City of Alexandria, 712 F. Supp. 67, 71-72 (E.D. Va. 1989) (Terry stop need not end when suspect walks from porch into house), affíd, 908 F.2d 967 (4th Cir. 1990); People v. Riviera, 598 N.E.2d 423, 427 (Ill. App. 2d 1992) (police authorized to make warrantless entry if they have lawful basis for stop and suspect reacts by fleeing to a private sanctuary); Edwards v. United States, 364 A.2d 1209, 1214 (D.C. 1976) (officers did not violate Fourth Amendment by following suspects into apartment to complete Terry stop initiated on the street), on rehíg, 379 A.2d 976, 978 (D.C. 1977) (upholding entry on probable cause grounds); cf. United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 2410 (1976) (suspect may not defeat arrest set in motion in public place by escaping into private place).

This reading of the Fourth Amendment has, however, elicited a substantive split of authority.See State v. Beavers, 859 P.2d 9, 17 (Utah Ct. App. 1993) (rejecting extension of Terry doctrine as contrary to Fourth Amendment principles); State v. Davis, 666 P.2d 802, 812 (Or. 1983) (declining to hold that reasonable suspicion sufficient to support temporary detention can support warrantless entry of premises).Because we find that Akins did not have a reasonable expectation of privacy in his open garage, we need not determine whether a warrantless entry for the purpose of completing an investigative stop that began in a public place is reasonable under the Fourth Amendment.


††††††††††† We reject Akinsís claim that the officer lacked an articulable basis to stop his car.We note initially that it is not a seizure for an officer to talk to a driver who is seated in a parked vehicle.State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980).But even if an articulable basis were required for the trooperís approach or questioning of Akins, the record amply supports the district courtís determination that the citizenís report provided a reasonable articulable basis for the stop.See Marben v. State, Depít of Pub. Safety, 294 N.W.2d 697, 699 (Minn. 1980) (stop must be based on articulable suspicion of traffic violation).

The citizen who observed Akinsís driving identified herself; told the dispatcher the make, model, and license number of Akinsís car; and described Akinsís erratic driving as she witnessed it.The dispatcher relayed the information to the trooper who apprehended Akins.The citizen also testified at the implied-consent hearing.These facts more than sufficiently establish a reasonable articulable suspicion that would justify a stop.See Marben, 294 N.W.2d at 699 (specific and articulable suspicion to justify a stop may be provided by anonymous citizenís tip when police verify that tipper is in area and close to vehicle).


††††††††††† We also reject Akinsís claim that requiring him to relitigate the same issues in this criminal proceeding that were previously litigated in the implied-consent proceeding violates due process and is fundamentally unfair.Essentially, Akins is arguing for application of collateral estoppel.Collateral estoppel does not apply, however, between civil implied-consent cases and subsequent criminal cases because the cases involve different parties with different interests.See State, Depít of Pub. Safety v. House, 291 Minn. 424, 425, 192 N.W.2d 93, 94 (1971) (DWI proceedings and implied-consent proceedings are separate actions involving separate parties); State v. Juarez, 345 N.W.2d 801, 802-03 (Minn. App. 1984) (noting that the State of Minnesota and the Commissioner of Public Safety are neither the same parties nor parties in privity).Furthermore, the overlapping issues, although dismissed prior to appeal, were decided against him in the district court proceedings.


††††††††††† Finally, we note that although the district court determined Akinsís guilt, the court deferred sentencing until conclusion of the appeal, and thus there has not been an appealable final judgment.See Minn. R. Crim. P. 28.02, subd. 2(2) (defendant may not appeal until final judgment entered, and judgment is final when sentence imposed or imposition stayed).Despite the absence of a sentence, both parties have proceeded in this appeal as if the court had not only completed adjudication, but also sentencing.Consequently, we have granted discretionary review under Minn. R. Crim. P. 28.02, subd. 3, in the interest of justice that is obtained through orderly and timely review.See State v. Soyke, 585 N.W.2d 418, 420 (Minn. App. 1998) (allowing discretionary review when record fully developed and issue fully briefed).

††††††††††† Affirmed and remanded for sentencing.