This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




Kathleen Ann Lamoureux, petitioner,



Commissioner of Public Safety,


Filed April 28, 1998


Lansing, Judge

Dakota County District Court

File No. C597007155

Barry L. Hogen, 3933 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Hubert H. Humphrey III, Attorney General, Stephen H. Alpert, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.



In an appeal from an order sustaining the Commissioner of Public Safety's revocation of a driver's license under the implied consent law, we affirm. The record demonstrates no constitutional violation that exonerates the driver from the consequences of her refusal to submit to chemical testing.


Kathleen Lamoureux was placed under a citizen's arrest by an off-duty Eau Claire, Wisconsin, police captain, Jerome Matysik. Matysik testified that while he was in TGI Friday's parking lot in Bloomington, he saw Lamoureux walk unsteadily toward her car, have trouble putting her key in her door lock, nearly collide with his car as she left the parking lot, and hit the median barrier as she drove onto the highway. Matysik followed Lamoureux's car as it drove erratically on Highway #77, intending to stop her and contact local police. When Lamoureux stopped her car in the driveway of her home in Burnsville, Matysik approached Lamoureux's car while his wife telephoned Burnsville police.

Matysik identified himself as an off-duty police officer and asked Lamoureux to remain where she was until police arrived. Lamoureux told Matysik that she was going to drive into the garage. Matysik did not physically prevent her from moving the car but followed her into the garage and again told her to wait there for police. Lamoureux said she wanted to enter her house to go to the bathroom, and when Matysik asked to accompany her into the house, she consented. Matysik waited for the Burnsville police in the doorway between the garage and the kitchen.

A Burnsville police sergeant responding to Matysik's call entered the garage and door area and talked with Matysik. When Lamoureux came out of the bathroom, the Burnsville police sergeant talked with her in the area of the garage. The police sergeant concluded that Lamoureux was under the influence of alcohol and transported her to the Burnsville police station where, after completing the implied consent advisory procedure, Lamoureux declined to take a chemical test. Lamoureux received notice of revocation under Minn. Stat. § 169.123, subd. 4 (1996), and appeals the order sustaining that revocation.


A private citizen may effect a citizen's arrest for an offense committed or attempted in the arresting person's presence. Minn. Stat. § 629.37(1) (1996). Before a citizen may make an arrest for driving while under the influence, the citizen must have probable cause to believe that the driver has violated the law. Keane v. Commissioner of Public Safety, 360 N.W.2d 357, 359 (Minn. App. 1984). To establish probable cause, the citizen must observe at least one objective indication of intoxication. Johnson v. State Department of Public Safety, 351 N.W.2d 2, 5 (Minn. 1984). Poor balance, slurred speech, glossy eyes, and the odor of alcohol are all indicators of intoxication. Johnson, 351 N.W.2d at 5.

Matysik observed numerous indicia of intoxication, including Lamoureux's poor balance, her inability to get her car door unlocked, and her erratic driving. While speaking with Lamoureux in her driveway he also noticed the odor of alcohol. Matysik had probable cause to place Lamoureux under a citizen's arrest when he confronted her in her driveway.

The district court found that Matysik lawfully seized Lamoureux in her driveway, lawfully followed her into her garage, and entered Lamoureux's residence with her consent. Lamoureux herself testified that she believed she was under a citizen's arrest. She does not challenge the district court's factual findings, but argues that Matysik's allowing her to drive into the garage and to enter her residence terminated the arrest, and the further actions of Matysik and the Burnsville police sergeant violated her constitutional right to be free from an unreasonable seizure.

We reject Lamoureux's argument for three reasons. First, the district court specifically found that Matysik entered the house with Lamoureux's consent. That finding is not challenged, but Lamoureux claims she did not consent to the Burnsville police sergeant's entry to take her into custody. When a valid and voluntary consent to enter is followed by a warrantless in-home arrest, no warrant is necessary to remove the arrested person from the house. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). In consenting to Matysik's entry into her home to allow him to maintain custody while awaiting arrival of the police, Lamoureux impliedly consented to admit the officer on his arrival. See State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (consent does not have to be verbal, but may be implied from conduct). The sergeant's standing in or near the doorway did not violate Lamoureux's fourth amendment rights.

Second, even if Lamoureux had not consented to Matysik's entry into her house, his actions would have been permitted by law. Matysik was effectuating a citizen's arrest. See Minn. Stat. § 629.37(1) (authorizing private person to arrest another for public offense committed in arresting person's presence). Following the statutory procedure, the citizen is required to deliver the arrested person to a peace officer without unnecessary delay, and, if the person escapes custody, the citizen is authorized to pursue even to the extent of breaking open the door or window of a dwelling to regain custody. Minn. Stat. § 629.39 (1996) (specifically allowing arresting citizen to break open door or window of residence if refused admittance). Matysik exercised appropriate restraint by not physically preventing Lamoureux's movements and Lamoureux responded by showing equivalent restraint when she consented to Matysik's entry into the house, thus avoiding extreme reactions. But when required, a citizen may exercise the power of entry.

Third, under a similar fact situation the Minnesota Supreme Court has upheld an officer's right to enter a residence to complete a warrantless arrest as an exigent circumstance. State v. Paul, 548 N.W.2d 260, 265 (Minn. 1996) (suspect cannot defeat arrest set in motion in public by retreating into a dwelling). The circumstances are no less exigent because an arresting citizen rather than a police officer initially followed Lamoureux into her dwelling. Viewed from the perspective of the police officer, the circumstances may have been even more exigent because of the potential risk of danger that inheres in the exercise of authority by one citizen over another. We affirm the district court's order that the seizure was constitutional.