This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2051

 

Kevin Joseph Mehr, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed July 24, 2007

Affirmed

Kalitowski, Judge

 

Kandiyohi County District Court

File No. 34-CV-06-281

 

Robert D. Stoneburner, Lynn M. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, P.O. Box 202, Paynesville, MN 56362 (for appellant)

 

Lori Swanson, Attorney General, Peter D. Magnuson, James E. Haase, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant challenges the revocation of his driver’s license under the implied consent law, Minn. Stat. §§ 169A.50-53 (2004), arguing that (1) summary rescission of implied consent revocation or suppression of witness testimony is required when the state fails to disclose its witness list; and (2) law enforcement’s warrantless entry into his father’s home and appellant’s subsequent arrest were not supported by probable cause or consent.  We affirm.

D E C I S I O N

I.

            Appellant argues that respondent failed to provide appellant with a list of potential witnesses to be called at the implied consent hearing and this defect entitles him to summary rescission of his license revocation or, in the alternative, that nondisclosed witnesses be barred from giving testimony.  On this record, we disagree.

            On May 17, 2006, appellant served respondent with a copy of his petition for judicial review of the license revocation.  On July 26, 2006, respondent’s counsel called appellant’s counsel to discuss the case, which was scheduled for an implied consent hearing the following day.  Counsel for appellant then informed respondent’s counsel that it had yet to receive the standard discovery documents from respondent disclosing the police reports and listing the names of potential witnesses.  Respondent’s counsel immediately faxed all of the police reports in its possession, including narrative reports from the three officers who testified at the implied consent hearing the next day.  After receiving these disclosures from respondent, appellant’s counsel faxed a letter to respondent at 3:11 p.m. indicating that the material sent did not specifically disclose “potential witnesses, including experts and the basis of their testimony.”

            At the implied consent hearing the following day, appellant made an oral motion for summary rescission based on the nondisclosure of respondent’s witness list. Appellant’s counsel objected to a continuance as a discovery sanction due to the expenses his client incurred attending the hearing.  The district court denied the motion for summary rescission.

            “The imposition of sanctions for violations of discovery rules . . . is a matter particularly suited to the judgment and discretion of the trial court. . . . Accordingly, we will not overturn its ruling absent a clear abuse of discretion.”  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  “In exercising this discretion the trial judge should take into account:  (1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.”  Id. Default judgment as a sanction for discovery violations is not favored because such sanctions “run[] contrary to the preference for courts to hear cases on their merits.”  Chicago Greatwestern Office Condominium Ass’n v. Brooks, 427 N.W.2d 728, 732 (Minn. App. 1988).    

            Here, respondent acknowledges that nondisclosure of the witness list was an inadvertent mistake and appellant “strenuously” opposed a continuance as a means of rectifying the mistake.  Further, the record supports the district court’s conclusion that appellant was not prejudiced by the nondisclosure of the witnesses because the identity of the officers and the substance of their testimony were included in their written police reports which appellant’s counsel had in his possession prior to the hearing.

            In Merritt v. Comm’r of Pub. Safety, a district court rescinded a license revocation based on the commissioner’s failure to comply with a discovery request for Intoxilyzer logs.  424 N.W.2d 298, 298-99 (Minn. 1988).  The Minnesota Supreme Court reversed, noting that a motion to compel discovery could have been brought and stating that the effect of the district court’s decision was to “provide a gratuitous, unwarranted benefit to the driver when the commissioner, through mere oversight and not through any intent to violate the discovery process, has failed to produce requested documents.”  Id. at 299. Here, respondent’s failure to disclose the witness list was inadvertent and summary rescission of appellant’s license revocation would provide appellant with the same gratuitous and unwarranted benefit denied to the driver in Merritt.

            We conclude that the district court did not abuse its discretion by refusing to summarily rescind appellant’s license revocation and allowing the testimony of nondisclosed witnesses.  Appellant opposed a continuance of the hearing and failed to show that respondent’s inadvertent discovery violation resulted in prejudice.

II.

            Appellant argues that law enforcement’s warrantless entry into his home was not supported by probable cause or consent, and that without the evidence obtained after the warrentless entry, his arrest was not supported by probable cause.  We disagree.

            The facts here are not disputed.  In the early morning hours of April 21, 2006, a man reported to the Kandiyohi County Sheriff’s Department that he received a call from appellant, who stated that he had driven his vehicle off of the road into some water, that the water was rising in the vehicle, and that he may be trapped in the vehicle.  Kandiyohi County Sergeant Gregory Stehn received a call from dispatch to investigate, and Sergeant Stehn dispatched an ambulance, first responders, and a rescue squad.  Sergeant Stehn and Corporal Joe Delzer then met the man who reported the incident and initiated a search for appellant because the man was unsure which body of water appellant’s vehicle was in.  While searching for appellant and his vehicle, Sergeant Stehn encountered appellant’s girlfriend, who was also looking for appellant.  Appellant’s girlfriend indicated that she and appellant had been at the American Legion and that appellant had been drinking that night, but she did not recall how much.  While appellant’s girlfriend and Sergeant Stehn were talking, appellant’s girlfriend received a call from appellant, who indicated that he was able to maneuver out of his vehicle and had gotten a ride to the Lake Koronis area, in Paynesville.  When Sergeant Stehn asked to speak to appellant, appellant hung up the phone.

            At approximately 2:20 a.m., Kandiyohi County Dispatch reported the accident to Stearns County law enforcement, which immediately began its own investigation.  Stearns County Sergeant Victor Weiss then drove to appellant’s parents’ residence in Paynesville, arriving at approximately 2:45 a.m.  Appellant’s father met Sergeant Weiss at the door and indicated that appellant had arrived home approximately ten minutes earlier and was unresponsive, cold, shivering, and unable to talk.  Sergeant Weiss asked if he could enter the home in order to check on appellant and appellant’s father led Sergeant Weiss to a downstairs bedroom.

            Appellant’s girlfriend was at the home when Sergeant Weiss arrived.  She told Sergeant Weiss that she saw appellant consume a couple of beers and maybe one other drink while they had been together earlier that night and that she thought appellant might be slightly impaired because he tends to get aggressive and boisterous when intoxicated, and he had been acting in that manner earlier in the evening. 

            Sergeant Weiss found appellant lying in bed visibly shaking, shivering, and largely unresponsive.  While standing next to appellant, Sergeant Weiss could smell a strong odor of alcohol.  Sergeant Weiss called an ambulance for appellant, which arrived at the home shortly thereafter.

            Sergeant Weiss told appellant that he thought appellant was faking hypothermia to avoid a driving while impaired (DWI) arrest, to which appellant responded by sitting up in bed and telling Sergeant Weiss that he was “sick of your sh-t.”  Sergeant Weiss noted the quick change in appellant’s demeanor from mumbling incoherently to sitting upright in bed and speaking loudly and clearly.

            When Corporal Delzer arrived, ambulance personnel were leaving the home. Corporal Delzer proceeded into the house and downstairs where Sergeant Weiss conveyed his suspicion that appellant was impaired.  While speaking with appellant, Corporal Delzer also noted the odor of alcoholic beverages and observed that appellant was acting like he may be impaired.  Appellant admitted that he had been drinking earlier that evening at the American Legion, but denied being impaired and denied consuming any alcohol after the accident.

            After appellant twice refused Corporal Delzer’s request to take a preliminary breath test (PBT) and showed indicia of intoxication during a horizontal gaze nystagmus test (HGN), appellant was placed under arrest for DWI.         

            The district court determined that law enforcement’s warrantless entry into appellant’s home was lawful because the owner of the home consented to the entry, and, even absent consent, the entry was justified pursuant to the emergency exception to the warrant requirement.  The district court also determined that there was a reasonable, articulable suspicion to request a PBT and that appellant was lawfully arrested.

            Appellant argues that Corporal Delzer’s warrantless entry into his father’s home was improper because he did not have consent to enter the home.

            Under the United States and Minnesota Constitutions, police officers may not conduct unreasonable searches of houses.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Generally, searches conducted without a warrant are per se unreasonable.  Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).  But a warrant is not required when valid and voluntary consent to search is given.  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).  Whether consent was voluntary is a question of fact to be determined from the totality of the circumstances.  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  This court will not reverse the district court’s determination of consent unless it is clearly erroneous.  State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990).  Even after valid consent is given, the search is limited by the scope of the consent given.  State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998).  The standard for measuring the scope of consent is one of objective reasonableness.  Id. (citing Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1804 (1991)).

Here, it is undisputed that appellant’s father answered the door when Sergeant Weiss arrived at the residence and, when Sergeant Weiss asked if he could come into the house to check appellant’s condition, appellant’s father led him through the house to the basement bedroom where appellant was located.  The district court determined that appellant’s father’s conduct “provided valid consent to law enforcement’s entry into the residence.”

When Corporal Delzer arrived at the residence, two squad cars and an ambulance were at the scene, EMT personnel were leaving the residence, and two law enforcement officers were in the home.  We cannot conclude that Corporal Delzer’s mere act of joining his fellow officers in checking appellant’s condition exceeds the scope of appellant’s father’s consent to enter his home.  Appellant’s argument that each individual officer should obtain separate consent to enter a home is impractical where several individual officers and sheriff’s departments are concurrently involved in an investigation, and multiple officers are already in the home.

In addition, even if appellant’s father’s consent for law enforcement to enter his home did not extend to Corporal Delzer, the collective information known to Sergeant Stehn and Sergeant Weiss provided law enforcement with probable cause to believe that appellant was operating a vehicle while impaired.  

In Minnesota, the implied-consent law provides that a person must submit to chemical testing when an officer has probable cause to believe that the person was driving while impaired.  Minn. Stat. § 169A.51, subd. 1(a)-(b) (2004).  “Probable cause exists where all the facts and circumstances would warrant a cautious person to believe that the suspect was driving or operating a vehicle while under the influence.”  Llona v. Comm’r of Pub. Safety, 389 N.W.2d 210, 212 (Minn. App. 1986) (quotation omitted).

When reviewing a probable-cause determination in an implied-consent case, appellate courts consider whether, under the totality of the circumstances, the officer “had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law.”  Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 13, 2000).  “When more than one officer is involved in an investigation, Minnesota uses the ‘collective knowledge’ approach to determine whether probable cause existed.”  State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997).  “Under this approach, the entire knowledge of the police force is pooled and imputed to the arresting officer for the purpose of determining if sufficient probable cause exist[ed] for an arrest.”  Id. (quotation omitted) (alteration in original). 

Here, prior to Corporal Delzer’s entry into the home, law enforcement had a reasonable, articulable suspicion of impairment as well as probable cause to support an arrest because (1) appellant smelled of alcohol; (2) appellant’s girlfriend stated that appellant had consumed several drinks and was acting like he acts when he is impaired; (3) appellant was involved in a single car accident unexplained by any facts other than impairment; and (4) appellant’s evasive behavior of leaving the accident scene, hanging up the phone when Sergeant Stehn attempted communication, failing to report the accident, and feigning hypothermia.  Taken together, these facts establish a reasonable suspicion of impairment and probable cause that appellant was driving while impaired. We conclude that the district court did not err by finding that appellant’s arrest was supported by probable cause.

Affirmed.