Lubenow v. North Dakota State Highway Com'r, 880136

• Decision Date: 28 March 1989
• Docket Number: No. 880136,880136
• Citation: 438 N.W.2d 528
• Parties: Wayne LUBENOW, Petitioner and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 528

438 N.W.2d 528

Wayne LUBENOW, Petitioner and Appellant, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellee.

Civ. No. 880136.

Supreme Court of North Dakota.

March 28, 1989.

William Kirschner & Associates, Fargo, for petitioner and appellant; argued by William Kirschner.

Robert E. Lane, Asst. Atty. Gen., State Highway Department, Bismarck, for respondent and appellee.

GIERKE, Justice.

This is an appeal by Wayne Lubenow (Lubenow) from a district court judgment ¹ which affirmed the administrative hearing officer's decision to revoke Lubenow's driving privileges for a period of one year. We affirm.

On December 31, 1987, Terry Schander (Schander) observed Lubenow driving his car erratically going from one lane to the other. Schander proceeded to follow Lubenow's vehicle which was a white Chrysler and called the police department from his phone in his pickup for assistance. Schander followed Lubenow's vehicle for several blocks until Lubenow turned into the driveway of his home. Lubenow sat in his car in the driveway awhile and then pulled the car into the garage. Schander observed Lubenow exit his vehicle and lay down in the driveway outside the garage. Lubenow then got up and walked around to the passenger side of the vehicle.

At this point, Officer Olson arrived. Schander directed Officer Olson's attention to the white Chrysler in the garage. Officer Olson observed the white Chrysler in the garage and noticed the driver's door open and a body lying along side the car. Officer Olson radioed to the dispatcher that there was a man down in the garage. Officer Olson then ran into the garage to determine whether or not there was a problem. Officer Olson helped Lubenow to his feet and noticed a cut under his right eye and a cast on his right arm. Officer Olson twice asked Lubenow whether or not he needed medical assistance and was twice refused. Officer Olson smelled a strong odor of alcohol on Lubenow's breath and asked him to come back to the patrol car. After placing Lubenow in the back seat of the patrol car, Officer Olson asked Schander whether or not Lubenow was the individual who was driving the white Chrysler. Schander stated that Lubenow was the driver of the vehicle that he followed.

At this point in time, Officer Volrath arrived. Officer Olson and Officer Volrath joined Lubenow in the patrol car. The officers had Lubenow perform some field sobriety tests which Lubenow failed. After reading the implied consent advisory to Lubenow, Officer Olson asked him if he understood it. Lubenow responded that he did. Officer Olson then asked Lubenow to take an ALERT test. Lubenow refused to take the ALERT test. Officer Olson then placed Lubenow under arrest for driving while under the influence. Officer Olson then asked Lubenow to submit to a blood-alcohol test. Lubenow refused.

Lubenow's license was revoked for one year pursuant to Section 39-20-04 of the North Dakota Century Code. ² Lubenow requested, pursuant to Section 39-20-05 of the North Dakota Century Code, a hearing on the license revocation. ³ A hearing was held on January 27, 1988, at which time the hearing officer sustained the revocation of Lubenow's driver's license.

Lubenow appealed this decision to district court pursuant to Section 39-20-06 of the North Dakota Century Code. ⁴ On April 20, 1988, the district court entered a judgment sustaining the decision of the hearing officer. On May 6, 1988, Lubenow filed this appeal.

The primary issue raised in this appeal is whether or not the activity of Officer Olson in this instance was a violation of Lubenow's right to be free from an unreasonable search and seizure under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution.

The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, provides as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Further, Article I, Section 8 of the North Dakota Constitution protects the right of people to be secure in their persons, houses, papers and effects from unreasonable searches and seizures.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the United States Supreme Court defined a search and seizure within the protection of the Fourth Amendment as a violation of privacy upon which a person justifiably relied. Accordingly, the standard which has evolved from Katz v. United States, supra, is that if an individual has a reasonable expectation of privacy in the area searched or the materials seized, then a search and seizure within the protection of the Fourth Amendment has been conducted. State v. Johnson, 301 N.W.2d 625 (N.D.1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Initially, we must determine whether or not the entry by Officer Olson into Lubenow's garage was a search within the constitutional sense. In determining whether Officer Olson's entry into the garage constituted a search, we must consider the nature and the extent of the defendant's interest in and privacy of the area into which the officer entered.

In State v. Manning, 134 N.W.2d 91, 96 (N.D.1965), we stated "that the garage was an intimate part of the residence and legally was in the curtilage of the accused." Accordingly, we determined in State v. Manning, supra, that the garage was a place where the owner had a reasonable expectation of privacy and therefore it was constitutionally protected against unreasonable searches.

In the instant case, the part of the premises entered was Lubenow's garage. Officer Olson entered Lubenow's garage after responding to information from Schander and observing Lubenow in the garage. The garage door was fully open exposing the contents and activities within the garage to the public. There was testimony in the record disclosing that the garage was attached to the house and was part of Lubenow's residence.

We do not believe that Lubenow had a reasonable expectation of privacy with regard to the officer observing from a place he had a right to be the contents and activities within the garage while the garage door was fully open. It does not necessarily follow that he had no privacy expectation as to the intrusion into the garage. We conclude that Lubenow has a reasonable expectation of privacy regarding intrusion into the garage.

Having determined that there was an area which was constitutionally protected from unreasonable search and seizure, we note that the mandate of the Fourth Amendment securing the people against unreasonable searches and seizures requires a warrant unless the search and seizure falls within a recognized exception to the warrant requirement. State v. Johnson, supra at 627; State v. Gagnon, 207 N.W.2d 260, 263 (N.D.1973); Katz v. United States, supra.

The emergency doctrine is an exception to the Fourth Amendment requirement of a warrant. Root v. Gauper, 438 F.2d 361 (8th Cir.1971); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 (1976); see also LaFave, Search and Seizure--A Treatise on the Fourth Amendment Sec. 6.6 (2d ed. 1987); Mascolo, The Emergency Doctrine Exception to the Warrant Requirement under the Fourth Amendment, 22 Buff.L.Rev. 419 (1973).

In Root v. Gauper, supra at 364, the Eighth Circuit Court of Appeals discussed the emergency doctrine as follows:

"The emergency doctrine had its origin in a dictum enunciated by Justice Jackson in Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1947): 'There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with.' The Supreme Court later suggested such a situation might occur 'where the officers, passing by on the street, hear a shot and a cry for help and demand entrance in the name of the law.' [Citations omitted]. The doctrine has been applied in many varying circumstances....

"For purposes of the instant case, the emergency or exigency doctrine may be stated as follows: police officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance. In applying this doctrine, two principles must be kept in mind. (1) Since the doctrine is an exception to the ordinary Fourth Amendment requirement of a warrant for entry into a home, the burden of proof is on the state to show that the warrantless entry fell within the exception. [Citations omitted]. (2) An objective standard as to the reasonableness of the officer's belief must be applied."

Former Chief Justice Burger as a circuit judge wrote in Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir.), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963), as follows:

"Breaking into a home by force is not illegal if it is reasonable in the circumstances.... But a warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Fires or dead bodies are reported to police by cranks where no fires or bodies are to be found. Acting in response to reports of 'dead bodies,' the police may find the 'bodies' to be common drunks, diabetics in shock, or distressed cardiac patients. But the business of policemen and firemen is to...