This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Wayne Allen Salden, petitioner,
Commissioner of Public Safety,
Le Sueur County District Court
File No. C301986
Lisa Marie Dahlquist, Assistant Attorney General, Public Safety Division, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Halbrooks, Judge.
TOUSSAINT, Chief Judge
Appellant Wayne Allen Salden challenges the district court’s order sustaining the revocation of his driver’s license. Salden contends that the citizens who seized him did not have authority to conduct the initial investigatory stop. Because under the circumstances of this case the private citizens had probable cause to conduct an investigatory seizure, we affirm.
On November 15, 2001, private citizens Tylor Arvid-Chermak, Trent Selle, and Andy Bush were traveling southbound on Highway 169 near the city of Belle Plaine in Arvid-Chermak’s vehicle. They observed the vehicle traveling ahead of them continuously swerve “from lane to lane,” almost collide with 15 other vehicles, and nearly drive into a ditch.
Arvid-Chermak followed the vehicle and observed it as it entered private property and turned back toward Highway 169. He then positioned his vehicle in front of the other vehicle, preventing it from returning to the highway. Arvid-Chermak, Selle, and Bush exited their vehicle, and Bush approached the other vehicle to speak with its driver, later identified as appellant Wayne Allen Salden. Bush observed that Salden appeared to be intoxicated. Salden gave Bush the keys to his vehicle.
Meanwhile, Harley Allen Loewe, owner of the property, called the police to report that the two vehicles were parked on his property. When Deputy Dan Tousley responded to the call and arrived at the scene, the three citizens waved him over and informed him that they had stopped Salden’s vehicle several minutes before. Bush told Tousley that he believed Salden was intoxicated and gave him Salden’s keys.
Tousley’s report reflects that he smelled a strong odor of alcohol on Salden’s breath. He also observed Salden’s eyes to be glassy, red, and his speech to be slurred.
Tousley conducted several field sobriety tests. First, while he administered the horizontal-gaze nystagmus test, Salden showed a lack of smooth pursuit in both eyes. When the deputy administered the walk-and-turn test, Salden was unable to keep his balance or to follow instructions. During the one-leg stand, Salden swayed and kept his second foot on the ground most of the time. He was arrested after the tests.
The deputy also administered a preliminary breath test, which showed an alcohol concentration of .21. Salden was later given an Intoxilyzer test, which showed an alcohol concentration of .16. A review of Salden’s driving record showed that he had two prior driving while impaired convictions (DWI)s in the past ten years. Salden’s driving privileges were subsequently revoked for driving with an alcohol concentration greater that .10.
On November 30, 2001, Salden filed an implied-consent petition challenging the revocation of his driver’s license. An implied-consent hearing took place on February 21, 2002. The district court entered an order concluding that the three citizens had probable cause to detain Salden until the police arrived. This appeal follows.
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). On appeal, this court must “review findings of historical fact only for clear error and * * * give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id. at 383 (quotation omitted). A reviewing court must consider the totality of the circumstances when determining whether probable cause existed. Eggersgluss v. Comm’r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986).
The district court concluded that the citizens in this case had probable cause to conduct a citizen’s arrest. We agree.
A private person may conduct a citizen’s arrest “for a public offense committed or attempted in the arresting person’s presence.” Minn. Stat. § 629.37 (2000). 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
probable 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) (modification in original) (citations and quotations omitted). In the case of a DWI arrest, probable cause to arrest exists when the citizen observes at least one “objective indication of intoxication.” Keane, 360 N.W.2d at 359 (citation omitted).
Salden argues that erratic driving is not sufficient to constitute probable cause for a DWI arrest. See State v. Carver, 577 N.W.2d 245, 248-49 (Minn. App. 1998) (holding that speeding and parking diagonally on a roadway are not sufficient indicia of intoxication to constitute probable cause for a DWI arrest). However, the facts here involved more than just “erratic driving.” The private citizens who followed Salden’s vehicle observed it swerve from lane to lane, almost collide with 15 vehicles, and nearly crash into a ditch while exiting the highway. While erratic driving alone may not constitute sufficient probable cause to conduct an investigative seizure, all of these observations, together, were sufficient for these private citizens to entertain an honest and strong suspicion that Salden was committing the crime of driving while impaired. Thus, the private citizens had probable cause to conduct an investigative seizure of Salden by blocking his reentry onto the freeway and by taking away his keys.
The record contains no evidence that the private citizens directly informed Salden that he was under a citizen’s arrest. However, this omission is not fatal to the citizen’s arrest. By handing his keys over to Bush, Salden acknowledged that he knew he was being seized for suspicion of driving while impaired.
While Salden argues that, under Horner, private citizens do not have the authority to conduct an investigatory stop, this claim is misplaced in the factual context of this case. In Horner, the Minnesota Supreme Court held that “citizens are not authorized to conduct investigations after observing a public offense committed in the citizen’s presence * * *.” Horner, 617 N.W.2d at 795. However, the facts in Horner differ from those here. In Horner, the private citizens went a step further than merely seizing Horner, proceeding to conduct field sobriety and breath tests after the seizure. Id. at 791. In that context, the supreme court was not troubled by the stop of the watercraft or the subsequent citizens’ arrest. See id. at 796 (holding that special deputies had requisite probable cause to conduct valid citizens’ arrest). Rather, the supreme court was concerned that the special deputies, or private citizens, investigated the extent of intoxication by administering tests. Id. at 795. Here, the private citizens seized Salden by preventing his vehicle from reentering the highway, but they did not conduct the type of investigations that troubled the supreme court in Horner. Therefore, in light of the facts in this case, Horner did not preclude the private citizens from temporarily seizing Salden until the police arrived.
Because the observations by the private citizens, taken together, gave them probable cause to suspect that Salden was driving while impaired, the district court did not err in sustaining the revocation of Salden’s drivers license.