This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1451

 

State of Minnesota,

Respondent,

 

vs.

 

Bryan James Brown,

Appellant.

 

 

Filed June 27, 2006

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. 04040462

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

 

Douglas T. Kans, Kans Law Firm, 1690 Interchange Tower, 600 South Highway 169, Minneapolis, Minnesota 55426 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Hudson, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

On appeal from his conviction of felony first-degree driving while intoxicated (DWI), appellant argues that the district court clearly erred in finding that the police officer activated his emergency lights as appellant turned off the street and into his driveway.  Appellant also argues that the officer did not have probable cause and exigent circumstances to justify his warrantless entry into the attached garage.  Because the officer had probable cause to believe that appellant was driving while intoxicated, and because the district court’s finding that the officer initiated appellant’s arrest in public is not clearly erroneous, we affirm. 

FACTS

 

            In the early morning of June 23, 2004, Deputy Bret Bukkila drove into a gas-station parking lot.  As he pulled into a parking spot, he noticed a vehicle license plate with letters first and numbers second, an old sequence.  Deputy Bukkila ran the license plate, which came back as “not on file.”  A “not on file” designation means that the plate is either so old that the state no longer registers the number, or the plate is so new that it has not yet been entered into the system.  The vehicle did not have a front license plate, but the back plate had a current tab.  Deputy Bukkila knew that people who have been assigned WU plates signifying past DWIs sometimes switch license plates to avoid suspicion. 

            As Deputy Bukkila entered the convenience store, a man later identified as appellant Bryan Brown exited.  Deputy Bukkila noticed that appellant had bloodshot, watery eyes and emanated a strong odor of alcohol.  Deputy Bukkila suspected that appellant was intoxicated.  Appellant got into the vehicle with the old license plate and drove away at an unreasonably high speed. 

            Deputy Bukkila returned to his squad car and attempted to catch up to appellant.  While following appellant, Deputy Bukkila estimated that his own speed was between 55 and 60 miles per hour in a 45-miles-per-hour zone.  Deputy Bukkila observed appellant run a stop sign.  Appellant turned into a residential neighborhood and drove to the end of a cul-de-sac.  Deputy Bukkila followed appellant into the cul-de-sac and observed appellant pulling into a driveway.  Throughout the chase, Deputy Bukkila was never directly behind appellant’s vehicle. 

According to Deputy Bukkila’s testimony, he activated his overhead lights as appellant was “pulling into” what turned out to be his garage:

Q.        Was [appellant] already inside the garage?

 

A.        Yup; just pulling into the garage as I was approaching his house.

 

Q.        And . . . then you parked your squad car in front of the driveway; is that correct?

 

A.        Correct. . . . I turned my overhead lights on as I was pulling up to [appellant’s] house. 

 

Q.        And the – at the time you put those overhead lights on [appellant] was already inside the garage; correct?

 

A.        He was – he was just pulling into his garage and just getting out of his car as I pulled in front of his driveway and my lights had been on at that time. 

 

Q.        So as you pull up you stop in front of the driveway and do you – and then that’s when you put the lights on, as you were stopping in front of the driveway?

 

A.        I put the overhead lights on a little prior to reaching [appellant’s] driveway. 

 

Appellant testified that he first noticed the deputy and first saw lights flashing after he had gotten out of his vehicle. 

Appellant pulled his vehicle into the garage, got out, and walked toward the service door connecting to the house.  Appellant did not shut the main garage door.  Deputy Bukkila stood at the end of appellant’s driveway and asked appellant three or four times to return to the driveway and discuss his license plate.  Appellant refused and continued towards the service door.  Deputy Bukkila walked up the driveway and into the garage.  The deputy inserted his foot into the service door frame to prevent appellant from closing the door. 

Deputy Bukkila again asked appellant to return to the driveway.  Appellant stated that Deputy Bukkila was too late.  Deputy Bukkila asked appellant to explain why he was not willing to talk, and appellant stated that he believed the deputy intended to arrest him for DWI.  Appellant voluntarily returned to the driveway when Deputy Bukkila suggested that they conduct some field sobriety tests.  Appellant failed the field-sobriety tests.  A preliminary breath test showed that appellant had a .18 blood-alcohol level.  Deputy Bukkila arrested appellant for DWI.  Upon running appellant’s name, the deputy discovered that appellant had three prior DWI convictions and was driving with a cancelled license. 

The state charged appellant with two counts of felony DWI and one count of driving after cancellation.  Appellant moved to dismiss and to suppress evidence recovered after Deputy Bukkila entered appellant’s garage.  Following a hearing, the district court denied appellant’s motion to dismiss and suppress, concluding that Deputy Bukkila had probable cause to arrest appellant for driving under the influence when he pulled up to appellant’s home.  The district court found that Deputy Bukkila initiated the arrest in public and pursued appellant into the garage to effectuate that arrest.  Appellant stipulated to the state’s case under the procedure described in State v. Lothenbach, 296 N.W.2d 854, 857–58 (Minn. 1980).  The district court found appellant guilty of felony DWI and sentenced him to 42 months stayed on the condition that appellant serve 180 days in the workhouse and comply with other appropriate conditions of probation.  This appeal follows. 

D E C I S I O N

 

            When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts to determine, as a matter of law, whether the district court erred in failing to suppress the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  When determining whether probable cause exists to make a warrantless arrest, this court “independently reviews the facts to determine the reasonableness of the conduct of police.”  State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997).  Further, this court evaluates the facts found by the district court to determine, as a matter of law, whether exigent circumstances existed.  State v. Gray, 456 N.W.2d 251, 256 (Minn. 1990).  In doing so, this court reviews findings of fact for clear error, giving “due weight to inferences drawn from those facts by [the district court].”  State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996)). 

I

 

Appellant first challenges the district court’s finding that Deputy Bukkila “was in hot pursuit and set the public arrest of [appellant] in motion when he activated his emergency lights just as [appellant] turned off of the street and into the driveway.”  Appellant contends that the district court’s finding is contrary to the deputy’s testimony that appellant was pulling into his garage when the deputy activated his lights. 

Deputy Bukkila consistently testified that he activated his lights before reaching appellant’s home.  Further, the deputy testified that appellant was “pulling into the garage” as the deputy reached appellant’s driveway.  Accordingly, under the deputy’s timeline, the deputy’s lights were activated before appellant entered his garage.  While the district court acknowledged appellant’s testimony that he did not notice the lights until after he was in the garage and out of his vehicle, the district court explicitly credited Deputy Bukkila’s testimony and described appellant’s testimony as “characterized by evasiveness.”  Given this court’s deference to the district court’s ability to weigh the credibility of witnesses, its finding was not clearly erroneous. 

II

 

Appellant next challenges the district court’s conclusion that Deputy Bukkila did not violate appellant’s Fourth Amendment rights by entering appellant’s garage without a warrant to effectuate appellant’s arrest.[1] 

The United States Constitution and the Minnesota Constitution prohibit the government from conducting unreasonable searches and seizures.  State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996) (citing U.S. Const. amend. IV; Minn. Const. art. I, § 10).  “Absent exigent circumstances, a warrantless entry of a person’s house to make an arrest is per se unreasonable.”  Id.; see also State v. Crea, 305 Minn. 342, 345, 233 N.W.2d 736, 739 (1975) (noting that the Fourth Amendment protects the curtilage surrounding a home and endorsing the argument that a home’s curtilage includes the garage).  The government may enter a person’s home without a warrant to make an arrest if it can satisfactorily show either consent or probable cause coupled with exigent circumstances.  Paul, 548 N.W.2d at 264.  Here, the state does not argue that appellant consented to the police officer’s entry into appellant’s home.  Therefore, the issue is whether the district court erred in finding probable cause and exigent circumstances. 

A.         Probable Cause

A valid arrest requires probable cause.  State v. Beckman, 354 N.W.2d 432, 436 (Minn. 1984).  Probable cause to arrest a person for DWI exists when the facts and circumstances available at the time of arrest warrant a prudent and cautious officer to believe that an individual was driving while under the influence.  State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984).  The existence of probable cause is examined under the totality-of-the-circumstances test.  State v. McCloskey, 453 N.W.2d 700, 702–03 (Minn. 1990). 

Appellant argues that the deputy lacked sufficient evidence of intoxication to support a probable-cause determination because the encounter at the convenience store was brief, the deputy did not observe slurred speech or any difficulty walking, and appellant did not swerve while driving.  We disagree.

Appellant’s argument suggests that Deputy Bukkila lacked probable cause because the deputy did not observe all of the types of conduct or physical indicators of intoxication recognized by Minnesota courts.  But “[t]here are numerous signs which may indicate a person is under the influence,” and “all signs need not be present to form the opinion that a driver is under the influence.”  Holm v. Comm’r of Public Safety, 416 N.W.2d 473, 475 (Minn. App. 1987) (holding that the district court erred in predicating a finding of no probable cause based, in part, on the lack of field sobriety test results).  Here, the record reflects that Deputy Bukkila: (a) noted appellant’s bloodshot, watery eyes; (b) smelled a strong odor of alcohol emanating from appellant; (c) observed appellant’s vehicle exit the gas station at an unreasonably high speed, continue to exceed the speed limit all the way to appellant’s home, and run a stop sign; and (d) knew that appellant’s vehicle had an old, unregistered plate, suggesting that the driver wanted to avoid a suspicious officer’s attention. 

Minnesota courts recognize these factors as supporting an officer’s probable-cause determination.  See Costillo v. Comm’r of Public Safety, 416 N.W.2d 730, 733 (Minn. 1987) (observing that bloodshot eyes, strong odor of alcohol, and slurred speech contributed to a determination of probable cause that the driver was under the influence of alcohol); Holm, 416 N.W.2d at 474–75 (finding probable cause to arrest for DWI when defendant’s vehicle drifted into another lane, the defendant had slurred speech and bloodshot eyes, and the defendant staggered when getting out of his vehicle).  As such, the district court did not err in concluding that Deputy Bukkila had probable cause to arrest appellant for driving under the influence.

B.         Exigent Circumstances

Probable cause without exigent circumstances, however, would not support Deputy Bukkila’s entry into appellant’s garage for the arrest.  Exigent circumstances can exist when police are in hot pursuit of a fleeing suspect.  State v. Koziol, 338 N.W.2d 47, 48 (Minn. 1983) (citing United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 2410 (1976)).  “[A] suspect may not defeat an arrest which has been set in motion in a public place by the expedient of retreating to a private place.”  Paul, 548 N.W.2d at 264.  Further, “the hot pursuit doctrine applies regardless of whether officers conduct a high speed chase of the suspect or merely approach a suspect who immediately retreats into a house.”  State v. Baumann, 616 N.W.2d 771, 775 (Minn. App. 2000) (quotation marks omitted), review denied (Minn. Nov. 15, 2000).

Appellant argues that the facts presented here do not rise to the level of hot pursuit because Deputy Bukkila did not catch up with appellant until appellant was pulling into his garage, did not activate his lights until appellant was in his garage, and did not follow appellant’s vehicle onto the driveway. 

The district court did not err in concluding that Deputy Bukkila did not violate appellant’s Fourth Amendment rights by entering appellant’s garage.  The record reflects that Deputy Bukkila pursued appellant for several miles.  Then, the deputy activated his overhead lights before appellant entered his garage, initiating appellant’s arrest in public.  The deputy entered appellant’s garage only after appellant attempted to retreat into his home to avoid arrest.  Therefore, Deputy Bukkila was in hot pursuit and was confronted with exigent circumstances sufficient to permit a warrantless entry into appellant’s garage.  See Baumann, 616 N.W.2d at 775 (concluding that probable cause and exigent circumstances permitted the officer’s warrantless entry of the garage, reasoning that the short distance the officer followed the vehicle with the squad-car lights activated was sufficient to create a pursuit).

Affirmed.