This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-424

State of Minnesota,

Respondent,

vs.

Nancy Irene Fitzgerald,

Appellant.

Filed December 24, 1996

Affirmed

Klaphake, Judge

Dissenting, Amundson, Judge

Hennepin County District Court

File No. 95-074796

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michael T. Norton, Acting Minneapolis City Attorney, Timothy T. Mulrooney, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent)

John Scanlan, Route 2, Box 259, Hinckley, MN 55037 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

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

KLAPHAKE, Judge

Nancy Irene Fitzgerald appeals from the trial court's denial of her motion to suppress evidence and claims her prosecution violated the prohibition against double jeopardy. Because the warrantless search of appellant's home was justified by exigent circumstances and double jeopardy did not attach, we affirm.

D E C I S I O N

I.

[P]olice officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance.

Root v. Gauper, 438 F.2d 361, 364 (8th Cir. 1971) (explaining origin of "emergency doctrine"); see also State v. Halla-Poe, 468 N.W.2d 570, 572-73 (Minn. App. 1991). "'The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.'" Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 2413 (1978) (quoting Wayne v. U.S., 318 F.2d 205, 212 (D.C. Cir.), cert. denied, 375 U.S. 860 (1963)). The court must apply an objective standard and require "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry v. Ohio 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880 (1968).

It is undisputed that the officer initially relied on an unidentified citizen's telephone call. The citizen phoned the police the morning after visiting appellant's home. The citizen expressed concern for an older woman whose home emitted a strong odor of dog feces and who may be in need of assistance. The officer inferred that appellant might be unable to care for her home or herself. Before entering appellant's yard, the officer's concern regarding the odor was verified; he smelled a strong odor as far away as the sidewalk. He then proceeded, considering it a "check the welfare" call. When no one answered his knock, he opened the front door and called in. Receiving no response, he did the same at the back door. He then decided to call Animal Control for assistance.

The officer's entry onto appellant's premises was at all times consistent with his limited purpose of checking the occupant's welfare. See, e.g., Halla-Poe, 468 N.W.2d at 573 (welfare check justified and not used pretextually to investigate possible criminal activity). We conclude, as the trial court did, that the officer's warrantless search of appellant's home was justified by exigent circumstances. See State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988) (when facts not significantly in dispute, correct approach on appeal is simply to analyze testimony and determine, as matter of law, if officer's actions justified).

II.

Based on the officer's estimate that appellant had at least 15 dogs in her house on February 18, 1995, Animal Control cited appellant for failing to license dogs. Appellant pleaded guilty and paid the fine for the citation. On March 24, 1995, Animal Control executed a search warrant of appellant's premises based on the officer's February 18 observations. The resulting complaint was expressly limited to Minneapolis ordinance violations occurring on March 24, with the exception of one count of failure to clean up feces on February 18.

Appellant argues that this prosecution for multiple counts of boarding unlicensed dogs and failing to clean up feces constitutes double jeopardy. We disagree. Because the dates of the offenses are distinct, there are differences in the proof required to establish the offenses. There are also distinct elements of proof between the two types of offenses alleged to have occurred on February 18--boarding unlicensed dogs and failing to clean up feces. Therefore, double jeopardy is not implicated. State v. McAlpine, 352 N.W.2d 101, 103 (Minn. App. 1984) (when multiple offenses require proof of different facts, substantial overlap in proof does not necessarily preclude further prosecution). Similarly, there is no basis in the record to assume that the offenses on the two dates arose out of continuous and uninterrupted conduct in violation of Minn. Stat. § 609.035 (1994). See State v. Gaulke, 281 Minn. 327, 329, 161 N.W.2d 662, 663 (1968) (section 609.035 bars successive prosecution of offenses committed during "single behavioral incident"). Therefore, this prosecution violated neither constitutional nor statutory prohibitions against double jeopardy.

Affirmed.

AMUNDSON, Judge (dissenting)

I respectfully dissent. I find it very disturbing that, based solely on appellant's age, the officer assumed that she would be unable to care for her home or herself. This seems to me to be nothing but rank prejudice against age. No officer is allowed to make negative assumptions about a person's abilities based solely on that person's race, sex, religion, or income. I would hope that the answer to the age question would also be a resounding "no." I fail to see a distinction between these traditionally recognized invidious assumptions and the ones the officer made in this case.

Second, I believe that the sentence was unduly harsh. Although I do not minimize the problem with appellant's many dogs, I am aware that many people convicted of more serious crimes in Hennepin County receive less than 21 days for a first offense. For example, DWI is a crime which is inimical to public safety, posing a clear danger to the entire public. The typical jail time for a first-time offender is two or three days for such an offense. Here, no other person, save the defendant, was impaired by the unsanitary conditions, but the sentence is more than ten times as long.

Further, I am concerned about the sequence and the propinquity of the trial judge's interrogation of the appellant's status as a lawyer, rapidly followed by the imposition of this harsh sentence. There may be instances where it is appropriate to hold lawyers to a higher standard than the ordinary layperson--perhaps in the area of a complex real estate, financial, or securities transactions, for example. However, nothing in my own legal education, or my understanding of the legal education system in this state, gives me any reason to believe that lawyers are uniquely suited by their educational background for animal waste management. Cleanliness may be next to godliness, but I fail to see why it would be any closer to lawyerliness.

I would reverse this entire sentence.