This opinion will be unpublished and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

C9-00-2012

 

Daniel Alfred Martens, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed July 17, 2001

Affirmed

Randall, Judge

 

Kandiyohi County District Court

File No. C0-00-484

 

Robert D. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, P.O. Box 202, Paynesville, MN 56362 (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 Randall, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

A private security guard for an apartment complex detained appellant, who appeared to have been driving while intoxicated, until police arrived. The officers invoked the implied consent law and appellant's driver's license was revoked. Appellant contends that the private security guard went beyond his authority as a citizen under State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000) when he confronted, detained, and arrested him. He also contends that the officers who arrived on the scene did not have probable cause to believe he was driving while under the influence. We affirm.

FACTS

On February 23, 2000, at approximately 11:55 p.m., Ben Standahl, a private security guard for an apartment complex, observed appellant Daniel Alfred Martens drive a car into the complex's parking lot and sit in the driver's seat for five minutes. Martens left his car and entered the apartment building's lobby. When Martens did not gain access to the building, he left the building and started walking towards his car.

Standahl approached Martens after he observed Martens "staggering, weaving [and] acting intoxicated," at which time he asked Martens some questions and for his identification. Standahl testified that Martens indicated he did not live at the apartment complex, that he had about three martinis that night, and that he drove to the apartment. Standahl testified that Martens emitted a strong odor of alcohol and concluded that Martens had driven while intoxicated. Standahl called the police on his cell phone and asked Martens to put his keys on the trunk of his car while they waited for the police to arrive. Martens wanted to retrieve his cigarettes from his car, but Standahl urged him not to get into the car. Martens claims he did not feel free to leave at that point.

 

The police arrived approximately five minutes later at the apartment complex. Standahl told the police that he observed Martens drive into the parking lot and that Martens was intoxicated and attempted to get back into his car. The police officers did not ask Martens whether he had been driving or what his version of the events was that evening. The police conducted standard field sobriety tests, including a portable breath test (PBT), which Martens failed, concluded that he was intoxicated, and arrested him for driving while intoxicated (DWI) under Minn. Stat.  169.121, subd. 1 (1998).

Martens testified that he purposefully did not drive after drinking. He claimed he drove to the apartment complex around 9:00 p.m. and went into the building to visit his friend Jill, who later drove him to a party. He testified that Jill had to leave early because of some problems with her babysitter. Martens stayed at the party and claimed he got a ride back to Jill's apartment with some casual acquaintances.

Martens also testified that when he was dropped off at the apartment complex, he went into the building and was buzzed into the building but did not go into Jill's apartment because she did not answer the door. He said he then went to his car to determine what to do and did not start the car or put the key in the ignition. He decided to return to the lobby and ring Jill's apartment again. After ringing the doorbell and getting no response, Martens left the building and encountered Standahl.

Once Martens was arrested, he was transported to jail where he took an intoxilyzer test that showed an alcohol concentration of .23. Martens's driving privileges were revoked. Following an implied consent hearing, the district court upheld Martens's license revocation. This appeal follows.

D E C I S I O N

A district court's findings of historical fact relating to a probable cause determination are reviewed under the clearly erroneous standard, but the issue of probable cause is reviewed de novo. State v. Lee, 585 N.W.2d 378, 382-83 (Minn. 1998). A reviewing court should be careful to "review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges." Id. at 383(quotation omitted).

I.                   Private Person Arrest

Martens contends that Standahl unlawfully arrested him. He argues that Standahl could not arrest him because he did not commit or attempt to commit the offense of drinking and driving and therefore Standahl had no basis for arresting him. Martens asserts that the arrest took place at the point when he did not feel free to leave and that Standahl did not inform him of the reason for the arrest as required by statute. Claiming Standahl has never been trained to determine intoxication, Martens argues that Standahl jumped to an unreasonable conclusion and lacked probable cause to determine that he was drinking and driving.

A private person has the power to make a citizen's arrest for a DWI violation committed in that person's presence. See Minn. Stat. 629.37 (1998) (stating private person may make arrest for public offense committed or attempted in person's presence). The private person must inform "the person to be arrested of the cause of the arrest and require the person to submit," unless the person is arrested while committing the offense or in pursuit immediately after committing an offense. Minn. Stat. 629.38 (1998).

As this court has previously stated:

For a DWI arrest, there must be probable cause to believe the defendant was driving, operating, or in actual physical control of a motor vehicle while under the influence of alcohol.

 

State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984) (citations omitted). The Minnesota Supreme Court has stated that

[p]robable cause to arrest exists where the objective facts are such that under the circumstances a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.

 

State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000) (quotations omitted). The person making the arrest must observe at least one fairly "objective indication of intoxication" in order to establish reasonable and probable grounds that someone is intoxicated. Keane v. Commissioner of Pub. Safety, 360 N.W.2d 357, 359 (Minn. App. 1984) (quotation omitted).

Here, Standahl testified that he saw Martens drive into the apartment complex's parking lot, get out of his car, stagger and weave as he approached the building, stumble on the steps, and fall against the wall in the lobby approximately seven times. Standahl also testified that he smelled an odor of alcohol on Martens when he stood three feet from him. Martens admitted to Standahl that he drank about three martinis that night. Standahl said that Martens was walking towards his car when he approached Martens. While there is no proof that Martens was going to get into his car and drive away, Standahl assumed that was Martens's intent because he said he saw Martens drive into the parking lot. Standahl asked Martens how he got to the building and Martens answered that he drove there. While Martens claims that he was referring to driving to the complex at 9:00 p.m. rather than around midnight, he provided no additional testimony or evidence to support his claim that someone dropped him off at the complex around midnight. This is a credibility determination, and it appears the district court believed the testimony of Standahl rather than Martens. We defer to the district court's determinations of witness credibility. Minn. R. Civ. P. 52.01 (stating due regard shall be given to district court's opportunity to judge witness credibility); State v. Morgan, 296 N.W.2d 397, 401 (Minn. 1980) (stating witness credibility determination is for district court as fact-finder). Standahl's observations support a believable suspicion that a crime had been committed.

Standahl called the police while standing about 10 to 15 feet from Martens's car to report that Martens had been driving and was intoxicated. Immediately after calling the police, Standahl asked Martens to place his keys on the trunk of his car. Standahl did not directly inform Martens that he was being arrested when he asked Martens to stay at the car. The commissioner argues, however, that Martens had an implied notice of why he was being held when Standahl called the police in Martens presence and told the police that he believed Martens was drinking and driving. The commissioner also argues that because Martens drove into the lot, left his car and then returned to his car, it has been established that Martens was in the process of committing the crime.

In Pan v. Commissioner of Pub. Safety, this court stated that a police officer only needs "reasonable grounds for forming a belief that the defendant had been driving or had been operating the vehicle." Pan v. Commissioner of Pub. Safety, 347 N.W.2d 545, 547 (Minn. App. 1984) (alteration in original) (quotation omitted). It is reasonable to include private citizens in this statement if both police and private citizens need reasonable and probable grounds to believe someone is intoxicated. We conclude that it is not fatal to the arrest that Standahl did not give Martens formal notice of what he was charged with. From the record, Standahl had probable cause to conclude that Martens was in the process of committing the offense of drinking and driving and thus did not need to give Martens formal notice of the arrest.

II.                Fourth-Amendment Rights

Martens challenges the district court's conclusion that Standahl's actions did not implicate his constitutional rights. It appears from Martens's motion and amended motion for judicial review that he is referring to his Fourth-Amendment rights.

"The Fourth Amendment was intended as a restraint upon the activities of the government," not the activities of private citizens. State v. Buswell, 460 N.W.2d 614, 617 (Minn. 1990). "Thus, a private search, even if unreasonable, will not result in evidence seized being suppressed because there is no constitutional violation." Id. at 617-18 (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984)) (other citation omitted). A private person's search and seizure can implicate the Fourth Amendment if the person can be "regarded as having acted as an instrument or agent of the state when conducting the search." Id. at 618 (quotations omitted).

Standahl is not a licensed police officer. He is a private security guard for an apartment complex. Martens does not raise the issue that Standahl acted as an agent of the state. The district court was correct in determining that Standahl's actions did not implicate Martens's Fourth-Amendment rights.

III.             Probable Cause to Arrest

Martens challenges whether Standahl and the police officers had probable cause to arrest him for a D.W.I. under Minn. Stat. 169.121, subd. 1, and lawfully invoke and request a chemical test pursuant to Minn. Stat. 169.123, subd. 2 (1998).

This court must determine whether "the officer had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law." Olson, 342 N.W.2d at 641. Implied consent laws are liberally construed in favor of the public interest and against the driver's private interests. State, Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981). As already stated, the officer only needs "reasonable grounds for forming a belief that the defendant had been driving or had been
operating the vehicle." Pan, 347 N.W.2d at 547 (alternation in original) (quotation omitted).

First, we have already concluded that Standahl had probable cause to arrest Martens. As for the police officers, within five minutes of Standahl calling the police, two officers arrived at the scene. One of them spoke to Standahl and ascertained how Standahl came to the conclusion that Martens was intoxicated and driving. After receiving the information from Standahl, the police officers conducted two field sobriety tests, which Martens failed. One of the officers testified that Martens smelled of alcohol, had slurred speech, and swayed a little. In addition, one of the officers administered a PBT to Martens, which showed an alcohol concentration over .10. After failing the PBT, one of the officers arrested Martens, took him to the police station and administered an intoxilyzer test. The test showed a result of .23.

Based on the information received from Standahl and the officer's observations that Martens had slurred speech and some swaying, and the results of the PBT, the officers had a reasonable basis to conclude that Martens was intoxicated and could therefore administer the intoxilyzer test pursuant to Minn. Stat. 169.123. The district court did not err in determining the police had probable cause to arrest Martens.

Affirmed.