This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Brooke S. Severson,
Commissioner of Public Safety,
Filed February 20, 2001
Hennepin County District Court
File No. IC478549
Faison T. Sessoms, Jr., Peter B. Wold, 840 TriTech Office Center, 331 Second Avenue South, Minneapolis, MN 55401 (for appellant)
Mike Hatch, Attorney General, Michael R. Pahl, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Hanson, Judge.
Appellant Brooke S. Severson seeks reversal of the district court’s decision sustaining the revocation of her driver’s license under the implied consent law. Appellant claims that the warrantless entry of her home was unconstitutional. We reverse and remand and rescind the driver’s license revocation.
On March 17, 2000, at approximately 9:00 p.m., Edina police officers received a report from the victim of a hit and run accident. The victim walked to the police station shortly after the accident, identified himself, and provided information to Officer David Carlson. The victim reported that a female with blond hair driving a white Firebird or Camaro with out-of-state license plate 893 DAT had hit his red vehicle. The victim went on to say that the driver drove away from the scene without providing any information about her identity. The victim opined without providing any details that, due to her driving conduct, it appeared that the driver was intoxicated at the time she struck his vehicle.
While Carlson was interviewing the victim, he received two telephone calls about the white car in question. The first caller provided information about the location of a white car that matched the description of the white car the victim had reported. The first caller also said that he believed the driver of this car, whom he described as a blond female, was intoxicated. The second caller reported that he had followed a car with Arizona license plate 893 DAT to 5224 Lochloy Drive, about two blocks from the accident scene, and that he believed the driver of the car was intoxicated.
Officers arrived at 5224 Lochloy Drive within minutes and observed a car parked directly in front of one of the closed garage doors in the driveway of a single-family house. The white 1997 Chevrolet Camaro had the same license plate and matched the description given by the victim and the callers. It was damaged and had paint transfer that matched the color of the victim’s red car. In addition to identifying the Camaro, Carlson observed that several other cars were parked around the house and that black garbage bags were taped over the windows of the house. Based on his police experience of 13 years and familiarity with large, single-family homes in Edina, Carlson believed that an underage drinking party was in progress.
About a minute later, Carlson observed the overhead garage door directly in front of the Camaro opening, and an apparently underage male exited the house through the garage. When the person saw Carlson and another officer, who were both in uniform, he attempted to run back into the house. Carlson followed him into the garage and grabbed him as he was going through an entry door from the garage into the mudroom, a small room connecting the garage to the house. When Carlson noticed the odor of alcohol coming from the person’s breath, another officer detained him for underage consumption.
Carlson then knocked on the mudroom door in an attempt to locate the owner of the residence. Carlson wanted “to make sure that nobody was injured in that car being it was involved in an accident,” and he also “had reason to believe there was underage alcohol consumption taking place at that house.” After receiving no response, Carlson opened the door to the mudroom and looked inside. An apparently underage male was lying on the floor talking on a cell phone. When asked if he knew where the owner was, this male pointed at another door that led from the mudroom into the kitchen.
Carlson knocked very hard on the other door several times and announced that there were police officers outside. Upon receiving no response, Carlson opened the door and from the mudroom observed several people in the kitchen who appeared to be under the age of 21 and open liquor containers. Carlson and another officer stepped inside the kitchen and encountered appellant Brooke S. Severson, who matched the description of the Camaro driver given by the victim and the callers. After further investigation, Carlson arrested appellant for underage consumption and driving under the influence of alcohol. Appellant was also charged with hit and run. At some point, the officers learned that the Camaro was registered to a “Severson” and that the house was also listed to a “Severson.” Carlson testified that he was unsure whether they received that information prior to entering the mudroom, but he believed they had it before entering the kitchen.
Appellant’s driver’s license was subsequently revoked under the implied consent law for refusing to take an alcohol concentration test. On May 30, 2000, an implied consent hearing was held at which the warrantless entry of appellant’s home was challenged. On June 19, 2000, the district court issued an order sustaining the revocation of appellant’s driving privileges, concluding that the arresting officers’ warrantless entry of her home was lawful. Appellant challenges the district court’s revocation order.
D E C I S I O N
In reviewing district court rulings on Fourth Amendment issues, this court accepts the district court’s findings of fact unless they are clearly erroneous. State v. Saffeels, 484 N.W.2d 429, 430 (Minn. App. 1992), review denied (Minn. June 1, 1992). But this court independently applies Fourth Amendment caselaw to the facts as found. Id. The district court’s findings of fact are undisputed.
The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution proscribe unreasonable searches by the government of “persons, houses, papers and effects.” U.S. Const. amend. IV; Minn. Const. art. I, § 10; State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996). “Absent exigent circumstances, a warrantless entry of a person’s house to make an arrest is per se unreasonable.” Paul, 548 N.W.2d at 264 (citation omitted). The state must justify a warrantless entry. Id. In Paul, an officer “with his red squad car lights on, followed Paul on the highway and for two blocks,” and when Paul parked his truck in his driveway, the officer “ordered him to stay in his vehicle.” Paul, 548 N.W.2d at 265. When Paul exited his vehicle and hurried towards his garage, the officer “several times ordered him to stop.” Id. The supreme court concluded that the officer had “set in motion an arrest which Paul could not stop by retreating into his home,” and upheld the warrantless police entry into Paul’s home. Id.
Appellant contends that the absence of hot pursuit renders the warrantless entry of her home to effectuate a misdemeanor arrest unlawful. Respondent would extend Paul, arguing that it permits a warrantless entry of a suspect’s home not only when a police officer is in hot pursuit of a person suspected of driving under the influence, but also to prevent the destruction of evanescent evidence, as was present here. Respondent relies on the following language from Paul:
To justify a warrantless entry of a person’s home in order to make an arrest, the state must show either consent or probable cause and exigent circumstances. [State v.] Othoudt, 482 N.W.2d [218,] 222 [(Minn. 1992)]. The United States Supreme Court has determined that exigent circumstances exist in cases of hot pursuit, danger to human life, imminent destruction of evanescent evidence, and possible flight of a suspect. [State v.] Lohnes, 344 N.W.2d [605,] 610 [(Minn. 1984)].
Paul, 548 N.W.2d at 264 (internal footnote omitted). But Othoudt specifies that exigent circumstances justify a warrantless entry to make a felony arrest. 482 N.W.2d at 222. And Lohnes involved second-degree murder. 344 N.W.2d at 607, 611. Police could have suspected appellant only of DWI, a non-felony offense, and leaving the scene of an accident, under circumstances that would not make it a felony. See Minn. Stat. § § 169.09, subd. 14, 609.21, subd. 2b(7).
Moreover, Minn. Stat. § 629.34, subd. 1 (2000), limits warrantless entries into a home to make an arrest:
(c) A peace officer or part-time peace officer who is authorized * * * to make an arrest without a warrant may do so under the following circumstances:
(1) when a public offense has been committed or attempted in the officer’s presence * * *.
* * * *
(d) To make an arrest authorized under this subdivision, the officer may break open an outer or inner door or window of a dwelling house if, after notice of office and purpose, the officer is refused admittance.
In reference to this statute, Paul states:
[T]he legislature has determined that an officer may not make a warrantless entry into a home to arrest for a misdemeanor offense unless the individual committed the offense in the officer’s presence. This statute places a substantial limitation on the powers of arrest of police officers and ensures that citizens who commit misdemeanor offenses outside of the presence of police officers will remain secure in the privacy of their homes.
Paul, 548 N.W.2d at 266 (internal citation omitted). Paul concluded that because the officer had observed the offense and was in hot pursuit, the caselaw and statutory requirements were satisfied. Id. But Paul is distinguishable. In the instant case, the officers did not observe the offense, they were not in hot pursuit of appellant, and they had not set an arrest in motion prior to their warrantless entry of appellant’s home.
Finally, although Paul mentioned possible exigent circumstance factors such as the evanescent nature of evidence of blood alcohol concentration and the need to prevent the possibility of post-driving alcohol consumption, id. at 267, the court limited the warrantless entry of a home to effectuate a misdemeanor arrest to cases involving hot pursuit:
Our decision today should not be read, however, as providing a green light for officers to make a warrantless home arrest whenever evidence is needed in a drunk driving investigation. * * * [W]e hold only that an officer in hot pursuit of a person suspected of the serious offense of driving under the influence of alcohol may make a warrantless entry into the suspect’s home in order to effectuate an arrest.
Id. at 268 (emphases added). Here, because the officers did not observe the offense, had not set an arrest in motion, and were not in hot pursuit of appellant, the warrantless entry of her home to effectuate a misdemeanor arrest was unlawful. Accordingly, any evidence flowing from the unlawful entry of appellant’s home, including appellant’s arrest and refusal to test, must be suppressed.
The warrantless entry of appellant’s home to effectuate a misdemeanor arrest was unlawful where appellant did not commit the offense in the officers’ presence, the officers had not set an arrest in motion, and the officers were not in hot pursuit of appellant.
Reversed and remanded; driver’s license revocation rescinded.
 Respondent also cites the ongoing field investigation exception in State v. Storvick, 428 N.W.2d 55, 59 (Minn. 1988), to support the warrantless entry in the instant case. But Storvick is readily distinguishable. Storvick was a vehicular homicide case where a hit and run motor vehicle accident resulted in the death of a pedestrian. The supreme court expressly limited Storvick to its own facts. Id. at 61.