This opinion will be unpublished and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
State of Minnesota,
Alberto Esquivel, Jr.,
Filed January 15, 2002
Renville County District Court
File No. K8-01-333
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Jon C. Saunders, Anderson, Larson, Hanson & Saunders, P.L.L.P., 331 Southwest Third Street, P.O. Box 130, Willmar, MN 56201 (for appellant)
Mark D. Nyvold, 46 East Fourth Street, 1030 Minnesota Building, St. Paul, MN 55102 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Hanson, Judge.
This appeal arises from a pretrial order suppressing evidence of intoxication and dismissing charges of failure to stop at a stop sign and DWI. The state argues that the district court erred in ruling that a police officer, who had not yet received a peace officer’s license, lacked authority as a private citizen to stop respondent’s car after observing traffic violations. We reverse and remand.
While on duty, Officer Dehmlow observed a motorist driving over the speed limit, who then failed to stop at a stop sign. Dehmlow made a traffic stop using his overhead lights and siren. When Dehmlow approached the motorist, who was later identified as respondent Alberto Esquivel, Jr., he detected a strong odor of alcohol. He also noticed that Esquivel’s speech was slurred, that he seemed confused, and that, when he got out of the car, he had difficulty maintaining his balance.
After Esquivel refused to perform field-sobriety tests, Dehmlow took him to the Sheriff’s Department. Once there, Dehmlow read Esquivel the implied-consent advisory, and a licensed Sheriff’s Deputy administered a breath test. The test indicated that Esquivel’s blood alcohol concentration was .21%. Esquivel was subsequently charged with failure to stop at a stop sign, a petty misdemeanor in violation of Minn. Stat. §§ 169.30, 169.89, subds. 1, 2 (2000), and first-degree DWI, a gross misdemeanor in violation of Minn. Stat. §§ 169A.20, subd. 1(1)(5), 169A.25(1)(2) (2000).
It was then discovered that at the time of the stop Dehmlow had not yet received his peace officer’s license, although he had completed and passed the peace officer training program and exams. Within a week, Dehmlow submitted his credentials to the issuing authority, and was immediately issued a peace officer’s license.
Esquivel urged the district court to suppress evidence and dismiss the charges, arguing that Dehmlow used illegal means to stop Esquivel because Dehmlow did not have the right to use police power—including marked car, lights and siren—to effect a traffic stop. The district court agreed, stating “there is no right for a private citizen to use the police authority to stop another citizen.” It granted Esquivel’s motion to suppress and dismissed both charges. This appeal followed.
When the state appeals a district court’s pretrial decision to suppress evidence or dismiss, it
must ‘clearly and unequivocally’ show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.
State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citation omitted). Here, it is clear that the district court’s decision to suppress the evidence and dismiss the charges critically impacts the state’s ability to prosecute Esquivel.
The state argues that the district court erred when it ruled that the stop was unlawful because “there is no right for a private citizen to use the police authority to stop another citizen.” This argument presents two questions: first, whether Dehmlow’s arrest of Esquivel was valid as a citizen’s arrest; and second, whether an unlicensed police officer making a citizen’s arrest may use indices of police authority to effect the arrest. Our review of those questions is de novo because,
where the facts are not in dispute and the trial court’s decision is a question of law, 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) (citations omitted).
The actions of a person who has some law enforcement authority, but who is not a licensed peace officer, are considered to be the actions of a private citizen. See State v. Horner, 617 N.W.2d 789, 794 (Minn. 2000) (stating that a water patrol deputy has the power to make a citizen’s arrest). A private citizen may arrest another person for an offense committed or attempted in the arresting person's presence. Minn. Stat. § 629.37 (1) (2000). Arrestable offenses include misdemeanors. Horner, 617 N.W.2d at 794; State v. Sellers, 350 N.W.2d 460, 462 (Minn. App. 1984) (stating that the term “public offense,” for which a private citizen may make an arrest if committed in that person’s presence, includes petty misdemeanors).
Before a private citizen may make an arrest, the arresting citizen must have probable cause to believe that the other person has violated the law. Keane v. Comm’r of Pub. Safety, 360 N.W.2d 357, 359 (Minn. App. 1984). 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.
Horner, 617 N.W.2d at 795 (citations and quotations omitted).
Similarly, probable cause to arrest for DWI exists when the citizen observes at least one objective indication of intoxication. Keane, 360 N.W.2d at 359; cf. State v. Schinzing, 342 N.W.2d 105, 109 (Minn. 1983) (stating that the odor of alcohol provides probable cause to support a search of a passenger compartment of a vehicle); State v. Lopez, 631 N.W.2d 810, 814-15 (Minn. App. 2001) (stating that the odor of alcohol alone provides probable cause to justify the search of an automobile). Some indicators of intoxication include the odor of alcohol, slurred speech, glassy eyes, and poor balance. Johnson v. State Dept. of Pub. Safety, 351N.W.2d 2, 5 (Minn. 1984).
Because Dehmlow was not a licensed police officer when he stopped Esquivel, we will treat his actions as those of a private citizen.
Count I of the complaint charges Esquivel with running a stop sign, in violation of Minn. Stat. § 169.30, 169.89, subds. 1 and 2. Dehmlow had probable cause to arrest Esquivel on this charge because Dehmlow observed him drive through the stop sign without stopping. Thus, the initial stop was lawful.
Count II charges Esquivel with DWI and cites both subdivisions 1(1) and 1(5) of Minn. Stat. § 169A.20. Subdivision 1(1) makes it a crime to be in control of a vehicle when the person is “under the influence of alcohol.” Subdivision 1(5) makes it a crime to be in control of a vehicle when the person’s blood alcohol level is 0.10 or more. Here, Dehmlow observed multiple indicators of intoxication, including a strong odor of alcohol, slurred speech, confusion, and difficulty maintaining balance. These indicators provided Dehmlow with probable cause to arrest Esquivel for DWI in violation of Minn. Stat. § 169A.20, subd. 1(1). See Johnson, 351 N.W.2d at 5. Thus, because the initial stop was lawful and Dehmlow’s observations provided him with probable cause to arrest for DWI, the arrest for DWI was also lawful.
Private Citizen’s Use of Police Authority
The district court ruled that the stop was invalid because Dehmlow used police authority to make a citizen’s arrest. The district court relied on this court’s decision in State v. Tilleskjor, where police made an arrest outside their jurisdiction and were viewed by this court as private citizens, to support its determination that “there is no right for a private citizen to use the police authority to stop another citizen.” State v. Tilleskjor, 488 N.W.2d 327, 331 (Minn. App.), rev’d, 491 N.W.2d 893 (Minn. 1992). That reliance was misplaced because this court’s decision was reversed by the supreme court and the quoted language has no precedential value.
The appropriate precedent to consider in this case is State v. Filipi, 297 N.W.2d 275, 276-78 (Minn. 1980). In Filipi, the supreme court upheld the defendant’s arrest by police officers who were outside their jurisdiction, but had probable cause to make a citizen’s arrest before they used the incidents of their authority to effectuate the arrest. Id. Here, as in Filipi, by the time the “incidents of authority” entered the picture (the marked police car, lights, and siren), Dehmlow had already observed a valid basis for the arrest; that is, he saw Esquivel run a stop sign. Thus, Dehmlow’s use of the indicia of police authority does not render the arrest invalid. See also, Windschitl v. Comm’r of Pub. Safety, 355 N.W.2d 146, 149 (Minn. 1984) (stating that when a police officer observes a public offense outside his or her jurisdiction, the officer may make a citizen’s arrest and may pursue the offender with “flashing lights and siren,” observing that “the lights and siren serve the very practical purpose of alerting other travelers to the presence of speeding vehicles”).
Esquivel argues that even if we determine that the district court erred in ruling that the arrest was invalid, we should nonetheless affirm the suppression of evidence and dismissal on other grounds. He argues that suppression is appropriate because Dehmlow improperly conducted an investigation when he tried to administer a field sobriety test and a preliminary blood test (both of which Esquivel refused); later checked Esquivel’s mouth and observed him; and, finally, invoked the implied consent procedures by reading the implied consent advisory to Esquivel. See Minn. Stat. § 169A.51, subd. 1(a) (2000) (stating that the breath test “must be administered at the direction of a peace officer”); see also Horner, 617 N.W.2d at 795 (stating that private citizens “are not authorized to conduct investigations after observing a public offense”).
This argument, of course, does not address the legality of the initial stop, the charge for running a stop sign or the arrest for DWI based on Dehmlow’s observations of indicia of intoxication. It only addresses the suppression of the evidence obtained as a result of Dehmlow’s investigation and invocation of the implied consent advisory (essentially, the results of the breath test) and the portion of the DWI charge based on a finding of a blood alcohol level of .10 or more. Minn. Stat. § 169A.20, subd. 1(5).
The state argues, however, that even if Dehmlow impermissibly invoked the implied consent procedures, the results of the breath test are still admissible because, in Dehmlow’s absence, the evidence would inevitably have been obtained by Deputy Sheriff Scott Hable, who was present when Dehmlow invoked the implied consent procedure and who administered the breath test. See, e.g., State v. Rodewald, 376 N.W.2d 416, 422 (Minn. 1985) (citing Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501 (1984)) (stating that unconstitutionally seized evidence may be admitted if its seizure by lawful means was inevitable).
We decline to address this argument because it was not presented to the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (concluding that the reviewing court may only consider issues presented to the district court). If, on remand, the district court determines that the question of whether the evidence would inevitably have been discovered is dispositive of the issue of suppression of the results of the breath test, the resolution of that question may benefit from some factual development.
Because the arrests for failing to stop at a stop sign and DWI were based on probable cause arising from observations of conduct in Dehmlow’s presence, we reverse and remand for further proceedings.
Reversed and remanded.
 While Count II of the criminal complaint lists both subdivisions, it charges Esquivel with “First Degree Driving While Impaired,” which can only be based on a blood alcohol content greater than .20. Minn. Stat. § 169A.25, subd. 1 (providing that two or more aggravating factors are required for first degree); Minn. Stat. § 169A.03, subd. 3 (defining aggravating factors to include a prior impaired driving incident within ten years and an alcohol concentration of over .20). But the state could amend the complaint to charge second-degree DWI (based on Esquivel’s prior DWI and a showing that Esquivel was “under the influence”). Minn. Stat. § 169A.26, subd. 1 (providing that only one aggravating factor is necessary for second degree). Accordingly, we will assume for our discussion that the state intended to charge under both Minn. Stat. § 169.20, subds. 1(1) and 1(5).