STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1465

State of Minnesota,
Respondent,

vs.

Bradley Dean Straka,
Appellant.

Filed July 10, 2007

Affirmed

Wright, Judge

Carver County District Court

File No. 10-CR-05-9

Derek A. Patrin, Meaney & Patrin, 6225 Ginger Drive, Eden Prairie, MN 55346 (for appellant)

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

Michael A. Fahey, Carver County Attorney, Michael D. Wentzell, Assistant County Attorney, Carver County Courthouse, 604 East Fourth Street, Chaska, MN 55318 (for respondent)

Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Wright, Judge.

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

WRIGHT, Judge

In this appeal from convictions of second-degree driving while impaired and driving after cancellation-inimical to public safety, appellant argues that the district court erred by determining that the officer’s warrantless entry into appellant’s garage was justified under the hot-pursuit exception to the warrant requirement. We affirm.

FACTS

On December 31, 2004, the Carver County Sheriff’s Department received a tip from appellant Bradley Straka’s neighbor that Straka was driving with a cancelled driver’s license. Deputy James Gamlin heard the dispatch report, performed a license- plate and driver’s-license check, and confirmed that the reported license-plate number was registered to Straka and that Straka’s driver’s license was cancelled-inimical to public safety. Deputy Gamlin informed Sgt. David Potts, who later observed the reported vehicle pass him traveling below the posted speed limit. Sgt. Potts and the driver of the vehicle made eye contact as they passed. Sgt. Potts turned his squad car around and pursued the vehicle, which had traveled a great distance indicating that it had substantially increased its speed. Sgt. Potts followed the vehicle to Straka’s home address and observed the suspect vehicle pulling into the garage. Sgt. Potts turned into the driveway, noticed the garage door coming down, activated the squad car’s emergency lights, approached the garage door, and activated the automatic-reversing mechanism, which caused the garage door to open. Sgt. Potts then entered the garage and made contact with the driver.

Sgt. Potts observed indicia of alcohol consumption; and the driver, identified as Straka, eventually admitted that he had consumed alcohol recently and that his driver’s license was cancelled. The results of a preliminary breath test indicated an alcohol concentration of .174. Straka was arrested and later submitted to an intoxilyzer test, which produced results indicating an alcohol concentration of .18. Straka was charged with two counts of first-degree DWI, driving after cancellation-inimical to public safety, and possessing an open bottle in a motor vehicle.

At a contested omnibus hearing in May 2005, Straka moved to dismiss the charges, arguing that the officer’s entry into Straka’s garage was an unconstitutional, warrantless entry requiring the suppression of all evidence seized thereafter. In its July 8, 2005 order, the district court denied the motion to dismiss. The district court determined that, “by actively evading law enforcement,” Straka “created a situation of hot pursuit.” Therefore, the district court concluded, because the officer had probable cause and was in hot pursuit of Straka, the officer’s entry into the garage was constitutionally permissible.

In April 2006, Straka agreed to a trial on stipulated facts under the procedure set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The state proceeded with an amended charge of second-degree DWI, in violation of Minn. Stat. งง 169A.20, subd. 1(5), .25 (2004), and driving after cancellation-inimical to public safety, in violation of Minn. Stat. ง 171.24, subd. 5 (2004). On the state’s motion, the district court dismissed the open-bottle charge. The district court found Straka guilty of both charges. This appeal followed.

D E C I S I O N

Although Straka moved to dismiss the charges rather than to suppress the evidence, the issue presented is whether the warrantless entry required suppression of the evidence and, consequently, dismissal of the charges. “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. Harris, 590 N.W.2d 90, 98 (Minn. 1999). We review the district court’s factual findings for clear error, giving due weight to the inferences the district court draws from those facts. State v. Lee, 585 N.W.2d 378, 383 (Minn. 1998).

The Fourth Amendment to the United States Constitution and article 1, section 10, of the Minnesota Constitution protect citizens from unreasonable government searches and seizures. In re Welfare of B.R.K., 658 N.W.2d 565, 578 (Minn. 2003). “A search occurs whenever government agents intrude upon an area where a person has a reasonable expectation of privacy.” State v. Hardy, 577 N.W.2d 212, 215 (Minn. 1998). “Absent exigent circumstances and probable cause, or consent, a warrantless entry and search of a private residence is per se unreasonable and violates the Fourth Amendment.” B.R.K., 658 N.W.2d at 578. All evidence obtained as a result of a warrantless entry made without probable cause and exigent circumstances must be suppressed. Id. Because the expectation of privacy in the home is the core interest protected by the Fourth Amendment, we are particularly cautious when determining whether there are exigent circumstances justifying a warrantless entry into a dwelling. State v. Storvick, 428 N.W.2d 55, 61 (Minn. 1988). The state bears the burden of establishing that the warrantless entry was justified by a recognized exception to the warrant requirement. Haase v. Comm’r of Pub. Safety, 679 N.W.2d 743, 747 (Minn. App. 2004).

Exigent circumstances justifying a warrantless search and seizure may be established by either a single factor or the totality of the circumstances. B.R.K., 658 N.W.2d at 579. Circumstances including the “hot pursuit of a fleeing felon, imminent destruction or removal of evidence, protection of human life, likely escape of the suspect, and fire” satisfy the single-factor exigent-circumstances exception. Id. (quotation omitted). When an officer lawfully attempts to stop a motor vehicle and the driver fails to stop or flees, the officer’s hot pursuit of the driver justifies a warrantless entry into the driver’s dwelling. See State v. Paul, 548 N.W.2d 260, 267 (Minn. 1996) (holding that warrantless entry into driver’s home was justified where officer had probable cause to arrest driver for serious offense of DWI and was in hot pursuit because driver failed to stop when officer activated squad car’s emergency lights and gave oral command to stop); State v. Koziol, 338 N.W.2d 47, 48 (Minn. 1983) (holding that hot pursuit justified warrantless entry into driver’s home when officer initiated traffic stop and driver fled).

The hot-pursuit exception, as it applies to a pursuit that is relatively short in duration and distance, was explained in United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406 (1976). In Santana, as officers with probable cause to arrest Santana approached her house, Santana was standing in the doorway. 427 U.S. at 40, 96 S. Ct. at 2408. When officers shouted “police” and displayed identification, Santana retreated into the vestibule of her home. Id. The officers followed her inside, where heroin and marked money from an earlier controlled buy were recovered. Id. at 40-41, 96 S. Ct. at 2408-09. Santana moved to suppress the evidence on Fourth Amendment grounds. Id. at 41, 96 S. Ct. at 2409. The United States Supreme Court held that a warrantless arrest in a public place supported by probable cause does not violate the Fourth Amendment and that a suspect may not defeat a lawful arrest set in motion in a public place by retreating to a private place. Id. at 42-43, 96 S. Ct. at 2409-10. The Supreme Court noted that “[t]he fact that the pursuit here ended almost as soon as it began did not render it any the less a ‘hot pursuit’ sufficient to justify the warrantless entry.” Id. at 43, 96 S. Ct. at 2410.

Here, the district court determined that “Sergeant Potts had probable cause to stop [Straka’s] vehicle, that [Straka] was aware Sergeant Potts was initiating a stop of [Straka], that [Straka] took action to avoid the stop, and that Sergeant Potts was in hot pursuit of [Straka].” In reaching this conclusion, the district court found that, after Sgt. Potts and Straka made eye contact, Sgt. Potts “immediately initiated a traffic stop.” The district court also found that Straka “was aware that Sergeant Potts was attempting to stop him and by actively evading law enforcement created a situation of hot pursuit.” In finding that Straka was aware that the officer was initiating a traffic stop, the district court relied on Straka’s actions of “accelerating heavily so as to put a significant amount of distance between [Straka’s] vehicle and Sergeant Potts[’s] squad car, and [Straka’s] attempts to evade law enforcement by racing to his home, parking in his garage, and closing the garage door.” The district court also found that Straka “knew that he [was] not free to leave the area and his actions, such as speeding and closing the garage door belie any claim that he was free to continue on.”

Straka concedes that the officer had probable cause to arrest him for driving after cancellation-inimical to public safety but argues that the warrantless entry into Straka’s garage was not justified by hot pursuit because there was no overt act by the officer to effect an arrest or seizure until Straka was already in his garage. Straka does not dispute the facts, but he challenges the inferences the district court drew from those facts in reaching its legal conclusion. To determine whether the district court erred in concluding that Straka was seized when the officer made eye contact and turned the squad car around,

the question to be asked . . . is whether, looking at all of the facts, the conduct of the police would communicate to a reasonable person in the defendant’s physical circumstances an attempt by the police to capture or seize or otherwise to significantly intrude on the person’s freedom of movement.

State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993); see In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993) (holding that whether seizure has occurred is determined by objectively considering whether reasonable person in those circumstances would have concluded that he was not free to leave). Not all encounters between citizens and police are seizures; rather, “a ‘seizure’ occurs only ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’” E.D.J., 502 N.W.2d at 781 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).

A seizure will not always result when an officer makes eye contact with a driver and turns the squad car around. But under Santana, 427 U.S. at 42-43, 96 S. Ct. at 2409-10, Straka cannot defeat the lawful arrest set in motion in a public place by retreating to a private place. Although Sgt. Potts did not activate his squad car’s emergency lights, when he made eye contact with Straka and turned the squad car around, he made a show of authority comparable to that in Santana by indicating the presence and expeditious approach of an officer. And, as the district court found, Straka knew that Sgt. Potts was approaching and attempted to evade him. Once Sgt. Potts made that show of authority and approached, Straka was not permitted to increase his speed and retreat into his home to avoid a lawful public seizure.

In State v. Baumann, we concluded that the hot-pursuit doctrine justified a warrantless entry into Baumann’s garage because Baumann entered the garage and closed the door after the officer activated his squad car’s emergency lights and attempted to initiate a traffic stop. 616 N.W.2d 771, 775 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000). We reiterated that an officer in hot pursuit may follow a fleeing suspect and make a warrantless entry into a dwelling, even if the officer merely approaches a suspect who then immediately retreats into his home. Id. Similarly, because Straka was aware that an officer was approaching, the hot-pursuit doctrine prevents Straka from increasing his speed, entering his garage, and closing his garage door to defeat a public seizure.

Based on the facts and circumstances of this case, the district court did not err by declining to suppress evidence obtained after the warrantless entry into Straka’s garage.

Affirmed.