This opinion will be unpublished and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

CX-01-2255

 

 

Eric Michael Perlowski, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed July 2, 2002

Affirmed

Robert H. Schumacher, Judge

 

Isanti County District Court

File No. C201722

 

Thomas A. Volk, 1059 Stoughton Avenue, Post Office Box 85, Chaska, MN 55318 (for appellant)

 

Mike Hatch, Attorney General, Jeffrey F. Lebowski, Matthew G. Frank, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Poritsky, Judge.*

 


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

ROBERT H. SCHUMACHER, Judge

Appellant Eric Michael Perlowski challenges the district court's order sustaining the revocation of his driver's license under the implied consent law, contending that the stop of his vehicle by a conservation officer outside of his jurisdiction was unlawful and that the officer had no authority to make a citizen's arrest. We affirm.

FACTS

At approximately 10:20 p.m. on May 28, 2001, Conservation Officer Martin Book was on duty and driving east on Highway 95 when he observed a van directly in front of him cross the centerline and the fog line several times. As Book followed, the van continued to swerve and twice hit the shoulder of the highway. Based on his observations, Book stopped the van. The driver of the van was identified as Perlowski. Book observed that Perlowski had a strong odor of an alcoholic beverage, was unsteady on his feet, fumbled for his identification, and spoke with a slight slur. Perlowski agreed to perform field sobriety tests for Book and provided a breath sample into a preliminary breath test instrument, which revealed an alcohol concentration of 0.213.

Book requested the assistance of a state trooper and placed Perlowski in his vehicle until Minnesota State Patrol Officer Anthony Snyder arrived on the scene at approximately 10:40 p.m. Snyder re-administered field sobriety tests to Perlowski and, based on his performance, placed him under arrest for driving under the influence of alcohol. Perlowski was charged with second-degree driving under the influence of alcohol and his driving privileges were subsequently revoked pursuant to the implied consent law, Minn. Stat. 169A.51-.53 (2000).

Perlowski filed a petition to challenge his driver's license revocation, and a court trial was held. The district court found that at all relevant times Book was a licensed peace officer in the State of Minnesota and a conservation officer employed by the Minnesota Department of Natural Resources' Division of Enforcement. The district court sustained the revocation. This appeal followed.

D E C I S I O N

Perlowski argues that the stop of his vehicle was unlawful because Book was acting outside of his jurisdiction when he made the stop. The district court's application of statutory criteria to facts as found is a question of law subject to de novo review. State v. Bunde, 556 N.W.2d 917, 918 (Minn. App. 1996) (reviewing legality of arrest outside officer's jurisdiction). A mixed question of law and fact requires the appellate court "to apply the controlling legal standard to historical facts" as determined by the district court. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998) (footnote omitted) (citation omitted). An appellate court reviews the district court's factual findings under the clearly erroneous standard, but independently reviews the district court's legal determination. Id.

The district court concluded that Book made a valid citizen's arrest of Perlowski. We agree.

A police officer who is outside his jurisdiction may act as a private citizen to arrest another for the commission of a public offense committed or attempted in his presence.

 

Schmidtbauer v. Comm'r of Pub. Safety, 392 N.W.2d 668, 669 (Minn. App. 1986) (citations omitted), review denied (Minn. Oct. 29, 1986).

A private person may arrest another:

 

(1) for a public offense committed or attempted in the arresting person's presence;

(2) when the person arrested has committed a felony, although not in the arresting person's presence; or

(3) when a felony has in fact been committed, and the arresting person has reasonable cause for believing the person arrested to have committed it.

 

Minn. Stat. 629.37 (2000). Whether there is probable cause for a citizen's arrest depends on findings of fact that are reviewed for clear error, but it is ultimately a question of law to be reviewed de novo. State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).

Perlowski argues that the district court erred in holding that Book made a valid citizen's arrest and cites Horner for support. But Perlowski's reliance on Horner is misplaced. In Horner, the Minnesota Supreme Court addressed the conduct of two Hennepin County special deputies in investigating an individual for suspicion of boating while under the influence of alcohol. 617 N.W.2d at 791. The court noted that the special deputies were "unpaid volunteers" and concluded that they were not licensed peace officers under Minn. Stat. 626.84. Id. at 791, 793-94. Accordingly, the court held that the special deputies had no authority to administer preliminary breath and field sobriety tests. Id. at 794. The court further held that private "citizens are not authorized to conduct investigations after observing a public offense committed in the citizen's presence under Minn. Stat. 629.37." Id. at 795. The Horner court did not extend this rule to peace officers acting outside of their jurisdiction. See id. at 795 ("Given the comprehensive certification and licensing program for peace officers, determining the authority of a peace officer to investigate crimes outside of the officer's jurisdiction simply involves different considerations than the considerations inherent in allowing private citizens to investigate.").

Unlike Horner, here, Book was a licensed peace officer, not an unlicensed special deputy. As a licensed peace officer, Book had the authority to conduct an investigation, including field sobriety testing, even outside of his jurisdiction. See, e.g., Windschitl v. Comm'r of Pub. Safety, 355 N.W.2d 146, 148-49 (Minn. 1984) (police officer who makes lawful arrest outside jurisdiction may administer preliminary screening test if during course of arrest officer acquires probable cause to believe individual arrested has been operating motor vehicle while intoxicated); State v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981) (officers, although outside jurisdiction, had authority to arrest driver and administer preliminary screening test); Bounds v. Comm'r of Pub. Safety, 361 N.W.2d 145, 146 (Minn. App. 1985) (peace officer outside jurisdiction making citizen's arrest retains status as peace officer and may engage in activities otherwise barred to citizens, such as administering post-DWI arrest procedures under implied consent law).

Book's observations provided probable cause, as in Horner, where the court ultimately held that the volunteer special deputies had the requisite probable cause to properly effect a citizens' arrest. 617 N.W.2d at 796. The Horner court held that the special deputies' observations of Horner's red and bloodshot eyes, slurred speech, and odor of alcohol provided

sufficient facts 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.

 

Id. (quotation omitted). Similarly, Book's observations of Perlowski's erratic driving conduct, odor of alcohol, poor balance and coordination, and slurred speech provided facts that would cause a person of ordinary care and prudence to believe that Perlowski had been driving under the influence of alcohol. Accordingly, we affirm the district court's order sustaining the revocation of Perlowski's driving privileges.

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.