This opinion will be unpublished and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

A03-666

A03-912

 

Carolyn JoAnne Gustafson, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent,

 

AND

 

State of Minnesota,

Respondent,

 

vs.

 

Carolyn JoAnne Gustafson,

Appellant.

 

Filed February 10, 2004

Affirmed

Toussaint, Chief Judge

 

Mille Lacs County District Court

File Nos. C3-03-0092, T9-02-3536

 

Richard W. Curott, Curott & Associates, P.O. Box 206, Milaca, MN 56353 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and:

 

Steven A. Anderson, Milaca City Attorney, 501 South 4th Street, Princeton, MN  55371 (for respondent State of Minnesota)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and:

 

Matthew Frank, Assistant Attorney General, 445 Minnesota Street, Suite 1000, St. Paul, MN 55101 (for respondent Commissioner of Public Safety)

 

            Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant brought these consolidated appeals from her conviction for driving while intoxicated (DWI) and from the district court order sustaining the revocation of her driver’s license and dismissing her petition for judicial review.  Because (a) the evidence was legally obtained from a warrantless entry into the house in which she was staying; (b) the issue of whether the arrest was lawful under Minn. Stat. § 629.31, was not decided by the district court and will not be addressed; (c) appellant was served with notice and order of revocation; and (d) appellant’s petition for judicial review of her license revocation was not timely, we affirm.

FACTS

            Officer Rick Waldahl was on routine patrol when he observed tracks in the freshly fallen snow that crossed the centerline, crossed back into the proper lane, and then led directly into a utility pole.  Based on evidence at the scene, Officer Waldahl believed the vehicle that left the tracks had sustained damage.  He followed the tracks to a residence, where he observed a vehicle with front-end damage.  Along with another officer who arrived on the scene, he questioned Steven Hammel, who had just left the damaged vehicle.  Hammel explained he had not driven the vehicle, but had just moved it so that it was no longer blocking another vehicle in the driveway.

            The other officer walked up to the residence and saw a woman, later identified as appellant Carolyn Gustafson, lying on a couch inside.  The officers asked Hammel whether they could enter the house, but he said he did not own it.  When the officers inquired whether Hammel lived at the house, he explained he stayed there, although he did not pay rent.

            The district court found, based on the testimony and video footage from the incident (which had been recorded from a video camera in Waldahl’s squad car), that the officers sought permission from Hammel to enter the home and that Hammel had voluntarily led the officers through the front door into the house.  The officers ultimately arrested Gustafson for DWI, and her driver’s license was revoked under the implied-consent law.

            Gustafson moved to suppress evidence in the criminal proceeding and petitioned for judicial review of her license revocation, contending that the warrantless entry into the house was unlawful.  The commissioner moved to dismiss the petition for review as untimely.

            A joint hearing was held on the motion to suppress and the petition for review.  The district court determined that the entry was lawful based on consent.  It denied the motion to suppress in the criminal matter, sustained the revocation of the driver’s license, and dismissed the petition for review as untimely.  Gustafson appealed from her conviction and from the order sustaining the revocation of her driver’s license and dismissing the petition.  This court consolidated the appeals.

D E C I S I O N

            In reviewing a district court order addressing a motion to suppress in a criminal proceeding, an appellate court will review the undisputed facts to determine whether, as a matter of law, the district court erred.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The appellate court will not reverse findings of fact unless clearly erroneous.  State v. Pederson-Maxwell, 619 N.W.2d 777, 780 (Minn. App. 2000).

            Similarly, in reviewing a decision in an implied-consent proceeding, legal conclusions will be considered de novo.  See Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  Findings of fact are reviewed under a clearly erroneous standard.  Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2000).

I.

Consent to Entry

            Under the Fourth Amendment, a warrantless search of a private home is per se unreasonable and unlawful unless a valid exception applies.  In re Welfare of B.R.K., 658 N.W.2d 565, 578 (Minn. 2003).  “Consent to entry is a well recognized exception to the warrant requirement.”  State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).  A third party who possesses common authority over or who has an otherwise sufficient relationship to the premises may consent to police entry of a dwelling.  State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003).  “Where common authority does not actually exist, consent to entry is still valid where, under an objective standard, an officer reasonably believes the third party has authority over the premises and could give consent to enter.”  Thompson, 578 N.W.2d at 740.

            Gustafson first argues that Hammel did not have authority to consent to the entry because he did not own the house.  The officers asked Hammel if they could enter the house after seeing Gustafson.  Hammel responded that he did not own the house or pay rent, but that he did stay at the residence.  The district court found Hammel (1) was a middle-aged man of at least average intelligence who understood the purpose of the officer’s request to enter the home; (2) was present at the home at 2:00 a.m.; and (3) had at least apparent authority, if not actual authority, to consent to the officers’ entry into the house.  See id. at 740-41.  We agree with the court’s conclusions.

            Next, Gustafson argues that Hammel did not consent to the officers’ entry, contending that the district court’s findings were clearly erroneous and that even with the most favorable construction of the evidence, the record does not support a finding that there was consent to the officers’ entry.  The district court was required to make findings of fact based on the record, including credibility determinations, and it credited the officers’ testimony that Hammel consented to their entry into the home.  The court’s findings are supported by the record, including testimony and the videotape of the events, and are not clearly erroneous.  See Jasper, 642 N.W.2d at 440 (holding that findings of fact will not be reversed unless clearly erroneous); Pederson-Maxwell, 619 N.W.2d at 780 (same).

            Gustafson further challenges the district court’s legal conclusion that Hammel consented to the officers’ entry.  “Consent does not have to be verbal, but may be implied from conduct.”  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).   Here, the district court ruled that Hammel consented to the officers’ entry where Hammel “led the officers to the house, opened the door and entered,” and the officers then “followed Hammel into the house, stopping in the first room,” where they spoke to Gustafson.  See State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (holding that where resident opened inner door to house completely and then stepped back as if to make room for officers to enter, he consented to entry).  Under the circumstances, the district court correctly ruled that the entry was lawful based on consent.

II.

Proper Arrest Under Minn. Stat. § 679.31 (2002)

            Gustafson contends that her warrantless arrest was unlawful under Minn. Stat. § 629.31 (2002), which limits the times at which a warrantless misdemeanor arrest may be made.  Gustafson did not raise this issue to the district court in her petition for review or raise it at the implied-consent hearing but addressed it for the first time in her written arguments to the court after the hearing, and the district court did not address it.  Generally, this court will not decide issues not decided by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Consequently, we decline to review the issue.

III.

Notice of License Revocation

            Gustafson also argues that the implied-consent revocation should be rescinded because there was insufficient evidence that she was served with the notice and order of revocation.

            After a person fails or refuses an alcohol-concentration test under the implied-consent law, the Commissioner of Public Safety shall revoke the person’s driver’s license.  Minn. Stat. § 169A.52, subds. 3(a), 4(a) (2002).  The revocation becomes effective when “the commissioner or a peace officer acting on behalf of the commissioner notifies the person of the intention to revoke . . . and of revocation.”  Id., subd. 6 (2002).  “Due process requires only that notice be reasonably calculated to reach interested parties.”  Goldsworthy v. State, Dep’t of Pub. Safety, 268 N.W.2d 46, 48 (Minn. 1978); McShane v. Comm’r of Pub. Safety 377 N.W.2d 479, 482 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986).

            Officer Waldahl testified that he completed the notice and order of revocation and handed it to the jailer, along with the citation, with the intent that the documents would be given to Gustafson once she left the jail.  When her attorney questioned her, however, Gustafson acknowledged that she did not know what papers she received.  The district court found that Gustafson acknowledged receiving some papers, including the citation and the notice and order of revocation, from a jailer upon her release.  The court’s finding that Gustafson received the notice and order of revocation on November 21, 2002, is supported by the record and is not clearly erroneous.

                                                                            IV.

Timeliness of Petition

            Finally, Gustafson challenges the district court decision that her petition was untimely.  The person whose license was revoked must petition for judicial review of the revocation within 30 days following receipt of the notice and order.  Minn. Stat. § 169A.53, subd. 2(a) (2002).  Timely filing of the petition is a jurisdictional requisite.  Qualley v. Comm’r of Pub. Safety, 349 N.W.2d 305, 307 (Minn. App. 1984).  This requirement is strictly construed.  McShane, 377 N.W.2d at 481.

            The date of December 21, 2002, rather than the correct date of November 21, 2002, was on the face of the notice and order of revocation.  Gustafson argues that, consequently, her petition for review on January 13, 2003, was timely.  She further contends that even if the notice had been properly served on her before December 21, 2002, the commissioner should be estopped from attempting to bar her claim.  The district court found that Gustafson received her notice and order of revocation when she was released from jail on November 21, 2002, and that her petition for review was untimely because it was filed well beyond the 30-day period.  The record shows that Officer Waldahl testified that he mistakenly placed December 21, 2002, date on the notice instead of the correct date of November 21, 2002.  And the record indicates this notice was in the papers Gustafson received when released from custody November 21, 2002.  The district court’s decision is not clearly erroneous and is correct as a matter of law.

            Affirmed.