This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








State of Minnesota,





Susan Mary Evans,




Filed October 26, 2004


Robert H. Schumacher, Judge


Olmsted County District Court

File No. K6031260



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Terry L. Adkins, Rochester City Attorney, Peter D. Magnuson, Assistant City Attorney, 201 Fourth Street Southeast, Room 247, Rochester, MN 55904-3780 (for respondent)


James McGeeney, McGeeney Law Office, 18 Third Street Southwest, Suite 303, Rochester, MN 55902 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Susan Mary Evans challenges her convictions of third- and fourth- degree driving while impaired (DWI) in violation of Minn. Stat. § 169A.20, subds. 1(1), 1(5) (2002).  Evans argues that the private citizen who stopped her lacked probable cause to conduct a citizen's arrest, and therefore the exclusionary rule should apply.  We affirm.


On the night of March 22, 2003, Thaddeus Ellenbecker was driving a tow truck in the 1900 block of North Broadway in Rochester when he saw a vehicle weave back and forth in traffic lanes and cross the centerline.  The driver of the vehicle was later identified as Evans.  Ellenbecker attempted to stop Evans by briefly flashing the lights on his tow truck, but she did not stop.  Eventually, Evans pulled into a left-hand turn lane, and Ellenbecker passed her.  Evans, however, did not turn left, and Ellenbecker observed that she quickly pulled out of the left-hand turn lane, crossed lanes of traffic, and entered the right-hand lane.  Evans then continued forward, traveling behind Ellenbecker.

            Ellenbecker called the police.  Although not directed to do so by the police, while on the telephone with the police he blocked the road with his tow truck and illuminated the truck’s lights.  Ellenbecker then got out of his truck and put up his hand, indicating to Evans that she should stop.  After Evans stopped, he asked for her keys and explained that the police were coming.  Evans shut off her vehicle and gave Ellenbecker her keys.

Rochester Police Officer Jason Peck arrived at the scene.  According to Peck's report, Ellenbecker told him that the driver was "obviously drunk" and that Ellenbecker "needed to stop her before she ran into somebody."  Peck approached Evans.  He smelled a strong odor of alcohol and noted that Evans's eyes were bloodshot and her speech was slurred.  When asked if she had been drinking, Evans said she had consumed a glass of wine at a wedding reception.  Evans took a preliminary breath test, which resulted in an alcohol concentration reading of .211.  An Intoxilyzer test was later administered, resulting in an alcohol concentration reading of .20.  Evans was charged with one count of third-degree DWI and one count of fourth-degree DWI in violation of Minn. Stat. § 169A.20, subds. 1(1), (5) (2002).

Evans challenged the constitutionality of the arrest, arguing she was subjected to an illegal seizure.  She moved to suppress all evidence obtained as a result of the arrest.  The district court denied the suppression motion.  Evans waived her right to a jury trial, stipulated to the police reports contained in the district court file, and submitted the case to the district court pursuant to the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found Evans guilty of both charges.


1.         Evans argues Ellenbecker did not have the authority to arrest her, and therefore the evidence obtained as a result of her arrest should be suppressed.  We disagree.

When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred in refusing to suppress the evidenceState v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  This court is bound by the district court's factual findings unless they are clearly erroneousState v. Britton, 604 N.W.2d 84, 87 (Minn. 2000).

A private person may arrest another "for a public offense committed or attempted in the arresting person's presence."  Minn. Stat. § 629.37(1) (2002).  The arresting citizen must have probable cause to believe that the other has violated the law.  Keane v. Comm'r Pub. Safety, 360 N.W.2d 357, 359 (Minn. App. 1984).  "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) (quotation omitted) (alteration in original).  In the case of a DWI arrest, probable cause exists when the citizen observes at least one "objective indication of intoxication."  Keane, 360 N.W.2d at 359.

Citing Salden v. Comm'r of Pub. Safety, an unpublished opinion, Evans argues that erratic driving alone is not sufficient to constitute probable cause for a private person to arrest another for DWI.  2003 WL 115458, at *2 (Minn. App. Jan. 14, 2003).  Although Salden states that "erratic driving alone may not" be enough to form probable cause for a private person to arrest another for DWI, the court did not hold that erratic driving is always insufficient.  Salden, 2003 WL 115758, at *2 (emphasis added).

Here, Ellenbecker observed the vehicle driven by Evans weave back and forth in traffic lanes and cross the centerline.  He also observed Evans pull into a left-hand turn lane and then quickly pull out of the turn lane, cross lanes of traffic, and travel forward in the right-hand lane.  Under these circumstances, a person of ordinary care and prudence would entertain an honest and strong suspicion that Evans was driving while impaired. Horner, 617 N.W.2d at 795.  Thus, Ellenbecker was empowered as a private citizen to make a citizen's arrest.

Additionally, we note that even if Ellenbecker did not have probable cause to conduct a citizen's arrest for DWI, the driving behavior observed by Ellenbecker constituted probable cause to conduct a citizen's arrest for careless driving.  Minn. Stat. § 169.13, subd. 2 (2002) (stating any person who operates vehicle carelessly or heedlessly in disregard of rights of others, or in manner that endangers property or people, is guilty of misdemeanor); Horner, 617 N.W.2d at 795 (noting public offenses for which private person can effectuate citizen's arrest include misdemeanors).

            2.         Evans argues that Ellenbecker's seizure of her person was illegal, and therefore the evidence collected is not admissible under the exclusionary rule.  We disagree.

Both Article 1, Section 10 of the Minnesota Constitution and the Fourth Amendment to the United States Constitution prohibit warrantless searches and seizures by the government.  But the Fourth Amendment does not apply to a search or seizure effected by a private party on his or her own initiative.  Skinner v. Railway Labor Executives' Assoc., 489 U.S. 602, 614, 109 S. Ct. 1402, 1411 (1989).  Accordingly, evidence obtained by a private search and seizure is not subject to the exclusionary rule.  State v. Buswell, 460 N.W.2d 614, 617-18 (Minn. 1990).

Ellenbecker conducted a citizen's arrest by blocking the road with his tow truck.  After Evans stopped her vehicle, Ellenbecker asked for her keys and told her that the police were coming.  Although Ellenbecker was on the telephone with police at the time he stopped Evans, the police did not direct him to stop Evans.  On this record, we conclude that Ellenbecker acted on his own initiative.  Consequently, the exclusionary rule does not apply.

Evans urges this court to hold that, under Article I, Section 10 of the Minnesota Constitution, the evidence should be suppressed even if Ellenbecker was not acting as an agent of the government.  But Evans does not point to any authority directly supporting this position and admits that this would be a new interpretation of the Minnesota Constitution.  It is not the province of this court to make "a dramatic change in the interpretation of the Minnesota Constitution" when the supreme court has not done so.  Minnesota State Patrol Troopers Ass'n on Behalf of Pince v. State, Dept. of Public Safety, 437 N.W.2d 670, 676 (Minn. App. 1989) (quotation omitted), review denied (Minn. May 24, 1989).  We decline to do so here.

            3.         Evans argues the district court erred in relying on factual findings that are not supported by the record.  Specifically, Evans points to the district court's finding that Evans's driving took place on "Rochester's busiest street" and occurred "over a distance of many blocks."

This court is bound by the district court's factual findings unless they are clearly erroneous.  Britton, 604 N.W.2d at 87.  Evans does not state this standard or explain her position as to why these findings are clearly erroneous.  Because her assignment of error is based on mere assertion and we see no obvious prejudicial error, we deem this issue waived.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating assignment of error in brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).