City of Bismarck v. Brekhus, No. 20170165

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtTufte
PartiesCity of Bismarck, Plaintiff and Appellant v. Deanne Brekhus, Defendant and Appellee
Decision Date22 March 2018
Docket NumberNo. 20170167,No. 20170165

2018 ND 84

City of Bismarck, Plaintiff and Appellant
v.
Deanne Brekhus, Defendant and Appellee

No. 20170165
No. 20170167

SUPREME COURT STATE OF NORTH DAKOTA

March 22, 2018


Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice.

Melanie P. Dornonville de la Cour, Assistant City Attorney, Bismarck, N.D., for plaintiff and appellant.

Chad R. McCabe, Bismarck, N.D., for defendant and appellee.

Tufte, Justice.

[¶1] The City of Bismarck appeals from a district court order granting Deanne Brekhus's motion to suppress evidence. We conclude the police officer's warrantless limited entry into her open garage while in "hot pursuit" did not violate her rights under either the Fourth Amendment or N.D. Const. art. I, § 8. We reverse and remand for further proceedings.

I

[¶2] On December 16, 2016, at about 10:10 p.m., a Bismarck police officer observed a vehicle fail to negotiate a turn and slide into a snowbank on the side of the road. The officer then observed the vehicle back out of the snowbank and proceed to fishtail down the street. The officer testified he suspected the driver was driving at an unsafe speed for the road conditions.

[¶3] The police officer turned around, followed the vehicle, and activated his overhead lights, but the driver did not stop. The district court found the officer had "activated his siren and continued to follow the vehicle for several blocks but the driver refused to comply with the obvious signals to stop and continued to flee the patrol car." The vehicle made several turns before entering a parking lot, and after about thirty seconds of pursuit, stopped in front of a garage door, waited for the door to open, and entered the garage. The garage was not attached to the defendant's residence, and the overhead garage door remained open. The officer commanded Brekhus to stay in the vehicle when she attempted to exit her vehicle.

[¶4] At this point the police officer entered the garage on foot and made contact with the defendant, immediately noting the odor of burnt marijuana and alcohol. The officer observed that Brekhus was slurring her speech; had bloodshot, glossy eyes; and had difficulty keeping her eyes open while speaking with the officer. The officer had her come out of the garage and perform field sobriety tests. Brekhus was unable to follow directions for the horizontal gaze nystagmus test. The officer did not ask her to perform the one-leg stand or walk-and-turn tests because she had a walking cast on her leg.

[¶5] After the police officer read Brekhus the implied consent advisory, she refused to submit to a preliminary breath test and was placed under arrest for driving under the influence. Brekhus gave the officer permission to retrieve her vehicle registration and proof of insurance from her vehicle in the garage. In his attempt to retrieve the documents, the officer observed in plain view a glass smoking device in the center console, warm to the touch and containing a substance he believed to be marijuana. The officer placed her under arrest for DUI refusal, marijuana, and paraphernalia offenses and transported her to the Bismarck police department. She was again read the implied consent advisory, and she again refused to provide a breath sample.

[¶6] The City charged Brekhus with driving under the influence, possession of drug paraphernalia, and possession of marijuana. In February 2017 Brekhus moved the district court to suppress evidence, arguing that her rights under the Fourth Amendment and N.D. Const. art. I, § 8, were violated when the police entered her garage and that her vehicle was searched in violation of her constitutional rights. She also moved the court contending she was denied her statutory right to consult counsel before chemical testing. The City opposed both motions.

[¶7] In April 2017 the district court held a hearing. The court subsequently entered an order granting Brekhus's motion on the basis of the police officer's initial entry into the open, detached garage. The court explained:

As much as it seems an unjust result to reward a defendant who commits a traffic violation (especially a potentially drunk driver) and then knowingly refuses to stop after being given a clear and undeniable signal from a pursuing police officer (by the use of flashing overhead lights and a siren) and who ultimately escapes into an open garage to avoid arrest, the Constitution guarantees that the Defendant's garage be free from unreasonable search and seizure. Once she entered the garage, [the officer] did not have a right to enter the Defendant's detached and open garage to make contact with her regarding the misdemeanor offenses. [The officer] could have requested that she come to speak with him, or could have waited until the Defendant left her garage to walk towards her apartment and could have engaged her once she reached the public area of the apartment complex, but he could not enter her open detached garage without a warrant or without an exception to the need for a warrant.

(Emphasis added.)

[¶8] The district court therefore suppressed the evidence obtained after the officer entered her garage, concluding the officer violated Brekhus's constitutional rights when he entered the garage without a warrant or an exception to the warrant requirement.

II

[¶9] Our standard for reviewing a district court's decision on a motion to suppress evidence is well established:

In reviewing a district court's decision on a motion to suppress evidence, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. We will affirm a district court's decision on a motion to suppress if there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. Our standard of review recognizes the importance of the district court's opportunity to observe the witnesses and assess their credibility. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.

State v. Hawkins, 2017 ND 172, ¶ 6, 898 N.W.2d 446 (quoting State v. Odom, 2006 ND 209, ¶ 8, 722 N.W.2d 370).

III

[¶10] The City argues the district court erred in granting Brekhus's motion to suppress evidence, because the police officer's warrantless entry into her garage was within the exigent circumstances exception to the warrant requirement.

A

[¶11] Individuals are protected from unreasonable searches and seizures in their homes under our federal and state constitutions. U.S. Const. amend. IV; N.D. Const. art. I, § 8; State v. Friesz, 2017 ND 177, ¶ 15, 898 N.W.2d 688. "Warrantless, non-consensual searches and seizures made inside a home are presumptively unreasonable, unless an exception to the warrant requirement applies." Friesz, at ¶ 15; see also Payton v. New York, 445 U.S. 573, 586 (1980). In criminal proceedings, "[e]vidence seized from a warrantless search, when no recognized exception to the warrant requirement exists, must be suppressed under the exclusionary rule." State v. Hart, 2014 ND 4, ¶ 13, 841 N.W.2d 735. "[A]ll evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Id. (quoting Mapp v. Ohio, 367 U.S. 643, 655 (1961)). "A search occurs when the government intrudes upon an individual's reasonable expectation of privacy." State v. Winkler, 552 N.W.2d 347, 351 (N.D. 1996).

[¶12] This Court has recognized that an individual may have a reasonable expectation of privacy in the individual's garage. See id.at 352. In Winkler, we held that under the circumstances the defendant "had a reasonable expectation of privacy as to what could not be seen from outside his unattached garage, and the officers' entry into the garage constituted a search, thus requiring a warrant." 552 N.W.2d at 352; see also State v. Kitchen, 1997 ND 241, ¶ 17, 572 N.W.2d 106 ("We have long recognized that a closed garage may be an intimate part of the residence where an owner had a reasonable expectation of privacy."); Lubenow v. N.D. State Hwy. Comm'r, 438 N.W.2d 528, 532 (N.D. 1989) (no reasonable expectation of privacy where an officer observed through a "fully open" garage door the contents and activities within an attached garage from a place he had a right to be, but concluding "a reasonable expectation of privacy [existed] regarding intrusion into the garage").

[¶13] While warrantless searches and seizures in a home are presumptively unreasonable, "[t]he United States Supreme Court has held, however, that a person standing within the open doorway of a house is in a public place, and hence may be arrested without a warrant permitting police entry into the house." City of Fargo v. Steffan, 2002 ND 26, ¶ 12, 639 N.W.2d 482 (citing Illinois v. McArthur, 531 U.S. 326, 335 (2001); U.S. v. Santana, 427 U.S. 38, 42 (1976) (citing Katz v. United States, 389 U.S. 347, 351 (1967), which explained: "What a person knowingly exposes to the public, even in [his/her] own house or office, is not a subject of Fourth Amendment protection.")).

[¶14] Generally, "[w]arrantless searches are unreasonable unless they fall within a recognized...

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5 practice notes
  • Lange v. California, No. 20-18
    • United States
    • United States Supreme Court
    • June 23, 2021
    ...from behind. --------Footnotes: 1. Compare, e.g., 2019 WL 5654385, *7-*8 (case below) (applying a categorical rule); Bismarck v. Brekhus, 2018 ND 84, ¶ 27, 908 N. W. 2d 715, 719-720 (same); Commonwealth v. Jewett, 471 Mass. 624, 634-635, 31 N. E. 3d 1079, 1089 (2015) (same); People v. Wear,......
  • Lange v. Cal., 20-18
    • United States
    • United States Supreme Court
    • June 23, 2021
    ...looks from behind.--------Notes:1 Compare, e.g. , 2019 WL 5654385, *7–*8 (case below) (applying a categorical rule); Bismarck v. Brekhus , 2018 ND 84, ¶ 27, 908 N.W.2d 715, 719–720 (same); Commonwealth v. Jewett , 471 Mass. 624, 634–635, 31 N.E.3d 1079, 1089 (2015) (same); People v. Wear , ......
  • Lange v. California, No. 20-18
    • United States
    • United States Supreme Court
    • June 23, 2021
    ...from behind. --------Footnotes: 1. Compare, e.g., 2019 WL 5654385, *7-*8 (case below) (applying a categorical rule); Bismarck v. Brekhus, 2018 ND 84, ¶ 27, 908 N. W. 2d 715, 719-720 (same); Commonwealth v. Jewett, 471 Mass. 624, 634-635, 31 N. E. 3d 1079, 1089 (2015) (same); People v. Wear,......
  • Brekhus v. N. Dakota Dep't of Transp., No. 20170296
    • United States
    • United States State Supreme Court of North Dakota
    • April 10, 2018
    ...the evidence was obtained under the hot pursuit exception to the warrant requirement. We agree, concluding City of Bismarck v. Brekhus , 2018 ND 84, ¶ 27, 908 N.W.2d 715, controls in this appeal. There, we held the officer’s warrantless, limited entry into Brekhus’s open garage while in hot......
  • Request a trial to view additional results
5 cases
  • Lange v. California, No. 20-18
    • United States
    • United States Supreme Court
    • June 23, 2021
    ...from behind. --------Footnotes: 1. Compare, e.g., 2019 WL 5654385, *7-*8 (case below) (applying a categorical rule); Bismarck v. Brekhus, 2018 ND 84, ¶ 27, 908 N. W. 2d 715, 719-720 (same); Commonwealth v. Jewett, 471 Mass. 624, 634-635, 31 N. E. 3d 1079, 1089 (2015) (same); People v. Wear,......
  • Lange v. Cal., 20-18
    • United States
    • United States Supreme Court
    • June 23, 2021
    ...looks from behind.--------Notes:1 Compare, e.g. , 2019 WL 5654385, *7–*8 (case below) (applying a categorical rule); Bismarck v. Brekhus , 2018 ND 84, ¶ 27, 908 N.W.2d 715, 719–720 (same); Commonwealth v. Jewett , 471 Mass. 624, 634–635, 31 N.E.3d 1079, 1089 (2015) (same); People v. Wear , ......
  • Lange v. California, No. 20-18
    • United States
    • United States Supreme Court
    • June 23, 2021
    ...from behind. --------Footnotes: 1. Compare, e.g., 2019 WL 5654385, *7-*8 (case below) (applying a categorical rule); Bismarck v. Brekhus, 2018 ND 84, ¶ 27, 908 N. W. 2d 715, 719-720 (same); Commonwealth v. Jewett, 471 Mass. 624, 634-635, 31 N. E. 3d 1079, 1089 (2015) (same); People v. Wear,......
  • Brekhus v. N. Dakota Dep't of Transp., No. 20170296
    • United States
    • United States State Supreme Court of North Dakota
    • April 10, 2018
    ...the evidence was obtained under the hot pursuit exception to the warrant requirement. We agree, concluding City of Bismarck v. Brekhus , 2018 ND 84, ¶ 27, 908 N.W.2d 715, controls in this appeal. There, we held the officer’s warrantless, limited entry into Brekhus’s open garage while in hot......
  • Request a trial to view additional results

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