This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Jeffrey Allen Owen,
Nicollet County District Court
File No. T500978
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Michael K. Riley, Nicollet County Attorney, Philip J. Elbert, Assistant County Attorney, 326 South Minnesota Avenue, St. Peter, MN 56082 (for appellant)
James H. Manahan, Manahan & Bluth, Law Office, Chartered, Box 287, Mankato, MN 56002 (for respondent)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Stoneburner, Judge.
Appellant State of Minnesota appeals the suppression of evidence and dismissal of charges based on the evidence obtained when police officers entered respondent’s home without a warrant. Because the state did not meet its burden to demonstrate that the entry was justified under an established exception to the warrant requirement, we affirm.
On March 16, 2000, Nicollet County Deputy Sheriff Marc Chadderdon was dispatched to the scene of a one-vehicle rollover accident, about three miles north of North Mankato, where he found an overturned, unoccupied automobile registered to respondent Jeffrey Owen. Motorist Jodi Louise Miller stopped at the scene and told the officer that she had just given a ride to two men from the accident scene to the Big Dog Sports Café in North Mankato, where she saw them get into a black pickup truck. She described the men as wearing uniforms with the names “Mitch” and “Jeff.” “Jeff” complained to Miller of pain in his left shoulder and the left side of his neck but declined her offer to take him to a hospital. Miller told the officer that she thought “Jeff” had been driving the overturned vehicle.
Deputy Chadderdon asked North Mankato Police Officers David Lange and Dennis McKinney to look for the individuals involved in the accident. The officers first checked the Big Dog Sports Café, but Owen and his passenger were not there. The officers proceeded to Owen’s residence. They knocked and announced their presence. Two children (later determined to be ages 10 and 12) answered the door. They said Owen was home. Officer Lange asked one of them to get Owen so he could speak with him. After several minutes elapsed and Owen failed to appear, Officer Lange asked the children if Owen was hurt and they indicated that they thought he was. Officer Lange then entered the home and found Owen in the kitchen. Officer Lange asked Owen what happened with his car, and Owen commented that he had not been driving. Owen appeared intoxicated to Officer Lange, who observed an odor of alcohol and Owen’s bloodshot eyes. At Officer Lange’s request, Owen got into the squad car and was transported back to the scene of the accident where he spoke with Deputy Chadderdon.
After additional questioning at the scene, Owen was arrested for driving while under the influence. His Intoxilyzer 5000 test result was .16. Owen was charged with three counts of driving while under the influence and one count of careless driving. Owen filed a motion to suppress the evidence seized as a result of the warrantless entry into his home and to dismiss the charges against him. After the contested pretrial hearing, the district court suppressed all evidence obtained from observations of Owen at his home, the accident scene, the squad cars, and the sheriff’s office, along with any statements made by Owen. The district court dismissed the charges under Minn. Stat. § 169.121, subd. 1(d) & (e) (1998) for lack of probable cause. The charges of driving under the influence of alcohol and careless driving were not dismissed.
The state contends that the district court erred in suppressing all evidence stemming from Officer David Lange’s warrantless entry into respondent Jeffrey Allen Owen’s home.
This court reverses pretrial suppression of evidence only if the state demonstrates clearly and unequivocally that the district court has erred in its judgment and that the error will critically impact the outcome of the trial. State v. Paul, 548 N.W.2d 260, 263-64 (Minn. 1996). Because charges in this case were dismissed based on the suppression, the critical-impact element has been met.
If the facts are undisputed, “the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citation omitted). Warrantless entries and searches inside a private home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980); see U.S. Const. amend. IV; Minn. Const. art. I, § 10 (proscribing unreasonable searches and seizures by the government of “persons, houses, papers, and effects”). The state has the burden to demonstrate the “police conduct was justified under an established exception to the warrant requirement.” State v. Halla-Poe, 468 N.W.2d 570, 572 (Minn. App. 1991) (quotation omitted). To justify a warrantless entry into a private home the state must show either consent or probable cause and exigent circumstances. Othoudt, 482 N.W.2d at 222. If a warrantless entry is made without probable cause in nonexigent circumstances, the fruit of the illegal entry must be suppressed. Id.
The police may enter and search a suspect’s home or effect a warrantless arrest if the police receive consent to enter. Othoudt, 482 N.W.2d at 222. “A consent is valid if it is given voluntarily and without coercion.” Pullen v. Commissioner of Pub. Safety, 412 N.W.2d 780, 782 (Minn. App. 1987) (citing United States v. Briley, 726 F.2d 1301, 1304 (8th Cir. 1984)). Whether consent is voluntary is a question of fact based on all relevant circumstances, and the state has the burden of showing consent was given freely. Othoudt, 482 N.W.2d at 222. Consent may be implied from conduct, but the mere answering of a police officer’s questions does not indicate consent. Id. at 222-23. Acquiescence on a claim of police authority or submission in the face of force is not consent. Pullen, 412 N.W.2d at 782.
The record shows no evidence that the children invited Officer Lange into Owen’s home either expressly or impliedly. They simply answered Officer Lange’s question that Owen was home and they thought Owen could be hurt. The district court correctly found that Officer Lange did not have consent to enter Owen’s home.
Exigent circumstances exist in cases of hot pursuit, danger to human life, imminent destruction of evanescent evidence, and possible flight of a suspect. Paul, 548 N.W.2d at 264 (citing State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984)). The state contends exigent circumstances existed, first to respond to an emergency and second to preserve evanescent evidence.
The police may enter a home without a warrant “if they reasonably believe that a person within is in need of emergency aid.” Othoudt, 482 N.W.2d at 223 (citing Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 2413-14 (1978)); see State v. Auman, 386 N.W.2d 818, 820 (Minn. App. 1986) (emphasizing “[t]he need to protect or preserve life or avoid serious injury”) (citation omitted), review denied (Minn. July 16, 1986). Courts apply an objective standard to determine whether the officer’s belief that a genuine emergency existed was reasonable. Othoudt, 482 N.W.2d at 223. The inquiry is:
[W]ith the facts available to the officer at the moment of the seizure or search, would a person of reasonable caution believe that the action taken was appropriate.
Id. (citation omitted).
The district court identified the applicable cases. In Halla-Poe, an eyewitness reported seeing an accident, pulling the defendant from her car, and bringing the defendant back to her apartment. 468 N.W.2d at 571-72. The witness told the police that because the defendant smelled of alcohol and could not talk or communicate, he was concerned she might not be able to care for herself. Id. at 572. The court found that the evidence supported the officers’ reasonable belief that the defendant was in need of medical assistance due to her intoxication. Id. at 574.
In Othoudt, the police officer found an abandoned truck that had struck a tree. 482 N.W.2d at 221. The windshield was broken and there was blood on the interior of the vehicle. Id. Shortly thereafter, the defendant’s wife reported an accident, claiming she was the driver and there were no injuries. Id. The police went to defendant’s house where medical technicians were attending to the wife. Id. Without knocking or asking permission to enter, the officer went into the house and questioned the wife. Id. The court found that the entry was not reasonable because the officer had been told help was not needed and the officer clearly saw medical aid already had been provided. Id. at 223.
In this case, the only evidence of injury was Owen’s complaints to Miller of shoulder and neck pain, Owen’s delay in coming to the door and the children’s response that Owen might have been hurt. Officer Lange did not have evidence of a type of injury or extent of alcohol intoxication that would require immediate aid. See Connecticut v. Geisler, 610 A.2d 1225, 1236 (Conn. 1992) (noting facts did not reasonably indicate driver of abandoned vehicle suffered a type of injury requiring emergency attention).
Although courts generally prefer not to second-guess the decisions of police officers, courts are wary that an officer’s purpose for entering a house may be a subterfuge to investigate and arrest the suspect. 3 Wayne R. LaFave, Search & Seizure § 6.6(a), at 402 (3d ed. 1996); see Halla-Poe, 468 N.W.2d at 573 (noting facts established officers’ purpose for entering was not a subterfuge). Officer Lange had no objective evidence indicating a medical emergency existed but instigated the issue by suggesting to a minor that Owen might be hurt. Once in the house, Officer Lange questioned Owen about the accident, not his injuries. These facts indicate the emergency situation was a subterfuge for the officer to enter Owen’s home to investigate and arrest the defendant. The district court was correct in finding the emergency exception did not apply.
3. Protection of Evanescent Evidence
The state, relying on Paul, contends that Officer Lange’s entry into Owen’s home was lawful to protect evanescent evidence. In Paul, the supreme court held that an 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 in order to effectuate an arrest. 548 N.W.2d at 267. The state’s reliance on Paul is nevertheless misplaced, because Paul is based on the combination of hot pursuit and probable cause to believe evanescent evidence is involved. Id. In this case, the district court correctly noted that the police were not in hot pursuit of Owen and had not witnessed any misdemeanor driving offenses or other conduct to support a conclusion that Owen was driving under the influence of alcohol. See Krause v. Commissioner of Pub. Safety, 358 N.W.2d 481, 483 (Minn. App. 1984) (finding warrantless entry unlawful because officer had not witnessed misdemeanor driving offenses, had not pursued defendant to his home, and defendant, asleep in bed, posed no danger to himself or public).
The state also mistakenly relies on State v. Storvick, 428 N.W.2d 55 (Minn. 1988). The court in Storvick limited its holding to the specific facts of the case:
Suffice it to say, the expectation of privacy that one has in one’s residence is the core expectation or interest protected by the Fourth Amendment and we are and will be hesitant in finding exigent circumstances for warrantless entries of dwellings.
Id. at 61. This case is factually distinguishable from Storvick, where the defendant hit a pedestrian along a highway and fled the scene. Id. at 56. After discovering the identity of the defendant, the police found the victim’s missing tennis shoe in the defendant’s driveway and believed the defendant may have had weapons. Id. at 57. This case did not involve such a serious crime or indicate any potential for violence. The district court correctly found that the evanescent-evidence exception did not apply.
 Minn. Stat. § 169.121, subd. 1 (1998) has been repealed. The comparable statute applicable to offenses committed on or after January 1, 2001, is Minn. Stat. § 169A.20, subd. 1 (2000).