Opinion
No. C9-02-1334.
Filed February 18, 2003.
Appeal from the Stearns County District Court, File No. K002383.
Mike Hatch, Attorney General, and Jan F. Petersen, St. Cloud City Attorney, Janis L. Hovda, Assistant City Attorney, (for appellant)
Mary M. McMahon, McMahon Associates, (for respondent)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this appeal from a pretrial suppression order, the State of Minnesota challenges the district court's determination that police did not have specific and articulable facts to go to respondent Steven Hopkins's residence to investigate a complaint made by an identified citizen that a possibly intoxicated man had just driven away from a bar. Because no seizure occurred when the officers knocked on respondent's door and were invited inside, the officers' subsequent observations of respondent's physical condition were permissible and formed a basis for his arrest for driving while under the influence of alcohol. We therefore reverse the district court's suppression order and its dismissal of the charges against respondent and remand for further proceedings.
DECISION
On appeal from a pretrial suppression order having critical impact, this court 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) (citation omitted).
The state argues that the officer's conduct does not implicate Fourth Amendment protections. "[N]ot all personal intercourse between policemen and citizens involves `seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16 (1968). Rather, a "seizure" has occurred "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Id.
Courts have held that "[i]t is not a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver seated in an already stopped car." Crawford v. Comm'r of Pub. Safety, 441 N.W.2d 837, 839 (Minn.App. 1989) (citation omitted). A "public place" may include an individual's porch or open doorway. State v. Alayon, 459 N.W.2d 325, 328 (Minn. 1990) ("Defendant freely chose to open the door and stood in the open doorway, which the United States Supreme Court and this court have held to be a `public' place for fourth amendment purposes.") (citation omitted)). Thus, it is not a seizure when police walk up a driveway or stand on a porch with intent to question a homeowner regarding a complaint. Id.; State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975) ("police may walk on the sidewalk and onto the porch of a house and knock on the door if they are conducting an investigation and want to question the owner, and in such a situation the police are free to keep their eyes open and use their other senses") (citation omitted)).
Here, officers received information from police dispatch regarding a complaint made by an identified citizen that a man had just driven away from a bar in a red Ford Explorer with the license plate number ENV 412. The caller believed that the man was intoxicated and complained that he was bothering her son. When the officers ran the license plate number, they discovered that it was registered to respondent, who resided a few blocks away from the officers' location. The officers proceeded to the address and saw the red Explorer parked outside.
Within minutes of receiving the call from dispatch, the officers approached the residence to "see if someone was home and to confirm one side of the story of what had happened." The officers testified that they made contact with one of the residents and were invited inside. There, they were met by a man who identified himself as respondent.
One of the officers testified that he advised respondent that they were investigating a complaint that the driver of a red Ford Explorer with his license plate number had just left the bar and was "possibly intoxicated." Respondent admitted that he had been at the bar and had been talking to a boy; he further admitted that when he left, he drove straight home and that he had not had anything to drink since he got home. Respondent's wife also stated that he had not had anything to drink since returning home.
The officers both testified that respondent's speech was slurred and that they detected the odor of alcohol on his breath. They asked respondent to step outside to perform field sobriety tests because there was not enough room in the residence to conduct the tests. Respondent complied and failed several of the tests. After respondent failed a preliminary breath test, he was arrested for driving while under the influence of alcohol.
Under these facts, we conclude that the officers' conduct did not amount to a seizure. The officers walked up to the front door of respondent's residence, knocked, and were invited inside. Respondent or his wife could have refused to allow the officers inside, but they did not do so, and both answered the officers' questions, seemingly without hesitation. See State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998) (holding police are prohibited from entering dwelling to make warrantless arrest absent "consent, emergency, or probable cause to believe that a felony has been committed and exigent circumstances exist"). Based on the record before us, the officers entered with the consent of appellant and his wife, and no seizure occurred by virtue of this contact.
On appeal, respondent insists that the officers were uninvited and that a seizure occurred when they entered his home and began to ask him questions. See State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992) (when uninvited officer enters home and begins asking questions, answering those questions does not indicate individual consented to entry). Because the only evidence offered on the issue of consent was the officers' testimony that they were invited inside by the person answering the door, respondent cannot now create a factual dispute on this issue.
Given our determination that this was not a seizure, we need not address whether the officers had articulable and reasonable suspicion under Terry to perform an investigatory stop. We do note, however, that the information provided by the citizen caller appears sufficient to allow valid inferences to be made that she was in close proximity to the man while inside the bar, that she watched him drive away, and that her belief that the man was "possibly" drunk or intoxicated was based on her personal observations. See City of Minnetonka v. Shepherd, 420 N.W.2d 887, 891 (Minn. 1988) (upholding stop based on information received by police in telephone call from person identifying himself as attendant at a specific gas station and reporting that he had just observed intoxicated driver leave station in vehicle which he also identified by make, license plate number, and direction of travel).
We therefore reverse the district court's order suppressing evidence and dismissing the charges against respondent, and remand this matter for further proceedings.