A05-2508

State of Minnesota,

Respondent,

vs.

Brian Lee Sternquist,

Appellant.

Filed April 10, 2007

Affirmed

Hudson, Judge

Pine County District Court

File No. K2-04-577

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

John K. Carlson, Pine County Attorney, Michelle R. Skubitz, Assistant County Attorney, Pine County Courthouse, 315 Main Street South, Pine City, Minnesota 55063 (for respondent)

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

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

HUDSON, Judge

Appellant Brian L. Sternquist challenges his conviction of first-degree DWI in violation of Minn. Stat. งง 169A.20, subd. 1(1), .24 (2004). Appellant argues that the district court erred by denying his motion to suppress evidence because the arresting officer lacked jurisdictional authority to conduct a preliminary breath test. Because we conclude that the arresting officer acted within the scope of his jurisdictional authority, we affirm.

FACTS

On May 13, 2004, while patrolling in Pine County, a Mille Lacs tribal police officer received a call that a white van, later determined to be driven by appellant, had crossed the center line and almost hit another vehicle head-on. Shortly thereafter, the police officer observed appellant’s vehicle driving erratically and initiated a traffic stop.

After determining that appellant did not have a valid driver’s license and noticing indicia of intoxication, the officer performed a preliminary breath test, which indicated that appellant had an alcohol concentration of .203. The officer arrested appellant and transported him to the Pine County Detention Center, where appellant was read the implied-consent advisory. After attempting to consult his attorney, appellant consented to a breath test, which indicated an alcohol concentration of .18. On May 14, 2004, appellant was charged with one count of first-degree driving while impaired in violation of Minn. Stat. งง 169A.20, subd. 1(1), .24 (2004), and one count of driving after cancellation in violation of Minn. Stat. ง 171.24, subd. 5 (2004).

At the omnibus hearing, appellant moved to suppress evidence of his breath test, arguing that the Mille Lacs tribal police officer lacked jurisdictional authority to conduct a preliminary breath test. Respondent countered by arguing that the officer’s authority was derived from a cooperation agreement between the Mille Lacs Band of Ojibwe (Band) and Pine County. The officer testified he had been licensed as a peace officer by the State of Minnesota and the Mille Lacs Tribal Police Department for five years. The district court concluded that the cooperation agreement conferred jurisdictional authority on the officer and denied appellant’s motion.

On April 11, 2005, appellant submitted the issue of guilt on the DWI charge to the district court on stipulated facts in accordance with State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980); the charge of driving after cancellation was dismissed. The district court found appellant guilty of first-degree DWI. This appeal follows.

D E C I S I O N

“When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing the evidence.” State v. Johnson, 645 N.W.2d 505, 508 (Minn. App. 2002) (quotation omitted). This court reviews questions of statutory interpretation and jurisdiction de novo. State v. Manypenny, 682 N.W.2d 143, 149 (Minn. 2004).

Minnesota law only permits a peace officer to administer a preliminary breath test to a driver the officer believes may be driving while impaired. Minn. Stat. ง 169A.41, subd. 1 (2004). The relevant definition of “peace officer” is a “police officer of any municipality . . . or county.” Minn. Stat. ง 169A.03, subd. 18(4) (2004). A police officer is “every officer authorized to direct or regulate traffic or to make arrests for violations of traffic rules.” Minn. Stat. ง 169.01, subd. 27 (2004). Thus, the Mille Lacs tribal police officer had the authority to test appellant only if he could be considered a Pine County police officer at the time he administered the preliminary breath test.

Under Minnesota law “[t]wo or more governmental units, by agreement . . . may jointly or cooperatively exercise any power common to the . . . parties or any similar powers, including those which are the same except for the territorial limits within which they may be exercised.” Minn. Stat. ง 471.59, subd. 1 (2004). For the purpose of entering into these types of agreements, Indian tribes are considered governmental units. Minn. Stat. ง 626.93, subd. 4 (2004); see also Manypenny, 682 N.W.2d at 151 (holding that law-enforcement cooperation agreements between an Indian tribe and the state are proper and not preempted by federal law). The rules for joint exercise of police power state that:

In the event that an agreement authorizes the exercise of peace officer or police powers by an officer appointed by one of the governmental units within the jurisdiction of the other governmental unit, an officer acting pursuant to that agreement has the full and complete authority of a peace officer as though appointed by both governmental units and licensed by the state of Minnesota, provided that:

(1) the peace officer has successfully completed professionally recognized peace officer preemployment education which the Minnesota Board of Peace Officer Standards and Training has found comparable to Minnesota peace officer preemployment education; and

(2) the officer is duly licensed or certified by the peace officer licensing or certification authority of the state in which the officer’s appointing authority is located.

Minn. Stat. ง 471.59, subd. 12 (2004).

The Band’s cooperation agreement with Pine County authorizes a tribal officer to patrol or investigate crime outside of its assigned jurisdiction when

responding to an emergency call for assistance, responding to an accident, responding to a crime witnessed by the officer where public safety is at risk, acting at the request of the Pine County Sheriff or a Pine County Deputy Sheriff, whether the request is in person or through dispatch, or exercising peace officer arrest authority pursuant to Minn. Stat. ง 629.40.

Law Enforcement Cooperation Agreement ถ 4.1.

Thus, the Mille Lacs tribal police officer had jurisdictional authority if he was acting in accordance with the cooperation agreement and had the requisite education and licensing qualifications. Here, the uncontroverted record establishes that the officer responded to the Pine County Sheriff’s request for aid in a situation where public safety was at risk, and for five years the State of Minnesota and the Band have licensed him as a peace officer. Accordingly, the officer had authority to conduct a preliminary breath test of appellant.

Affirmed.