State v. Horner

• Decision Date: 12 October 2000
• Docket Number: No. C5-99-1027.,C5-99-1027.
• Citation: 617 N.W.2d 789
• Parties: STATE of Minnesota, LAKE MINNETONKA CONSERVATION DISTRICT, petitioner, Appellant, v. Lynn Edward HORNER, Respondent.
• Court: Minnesota Supreme Court

617 N.W.2d 789

STATE of Minnesota, LAKE MINNETONKA CONSERVATION DISTRICT, petitioner, Appellant, v. Lynn Edward HORNER, Respondent.

No. C5-99-1027.

Supreme Court of Minnesota.

October 12, 2000.

Steven M. Tallen, Tallen & Baertschi, Minneapolis, for appellant.

Marc S. Berris, David G. Roston, Segal, Roston & Berris, PLLP, Minneapolis, for respondent.

Amy Klobuchar, Hennepin County Attorney, Karla F. Hancock, Sr. Assistant County Attorney, Minneapolis, Bonnie LaBatt, Mothers Against Drunk Driving, St. Paul, for amici curiae.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Chief Justice.

The state brings this appeal of the district court's pretrial order to suppress evidence of intoxication and dismiss operating a watercraft while under the influence charges. The state argues that special deputies of the Hennepin County Sheriff's Department, Water Patrol, have authority to investigate the charges as peace officers or as private citizens, and thus their investigation of respondent was authorized and the evidence of intoxication should not be excluded. Alternatively, the state argues that probable cause to arrest respondent existed before the special deputies investigated. The court of appeals affirmed the district court's determination that the special deputies lacked probable cause to arrest respondent before he boarded the patrol boat, and lacked authority to investigate further to obtain probable cause. We hold that special deputies do not have the authority, either as peace officers or as private citizens, to administer a preliminary breath test or investigate beyond their direct observations of an offense, but that even in the absence of this evidence, the deputies effected a lawful citizen's arrest.

On the evening of September 5, 1998, Stephanie Jung and Joseph Martin were acting as special deputies of the Hennepin County Sheriff's Department, Water Patrol (Water Patrol), patrolling Lake Minnetonka for waterway violations. Special deputies are unpaid volunteers who assist the Hennepin County Sheriff's Department in patrolling the lakes and rivers of Hennepin County. Although Jung and Martin were uniformed and operating a Sheriff's Department motorboat possessing lights, sirens, and a large "Sheriff" logo, they were not licensed peace officers.

At approximately 6:15 p.m., Jung and Martin were docked at the Gray's Bay Marina on Lake Minnetonka. Jung observed a personal watercraft entering Gray's Bay, operated by respondent Lynn Edward Horner.¹ Jung thought that the personal watercraft lacked a required registration decal, in violation of the Lake Minnetonka Conservation District (LMCD) Code.² Jung relayed her observation to Martin and both boarded the patrol boat to pursue respondent. Next, Jung and Martin both observed respondent create a large, rolling wake with his watercraft, a possible violation of section 3.02, subd. 4, of the LMCD Code, the "quiet waters" ordinance—classified as a misdemeanor. See LMCD Code § 3.02, subd. 4 (1997).

Jung and Martin positioned their patrol boat in respondent's path, flashed the boat's red emergency lights and hailed respondent, saying, "Sheriff's Department, would you please pull alongside our boat." After respondent complied, Jung observed that respondent had an unopened can of beer between his legs, smelled of alcohol, and had bloodshot eyes and slurred speech. Similarly, Martin observed that respondent had a can of beer between his legs, smelled strongly of alcohol, had "extremely bloodshot eyes," and his coordination "seemed to be off considerably."³

Martin ordered respondent to board the patrol boat and respondent complied. Jung and Martin both testified at a pretrial hearing that once they had stopped respondent, respondent was not free to leave. In addition, Jung testified that she had not concluded that respondent was under the influence of alcohol before he boarded the patrol boat.

Approximately five minutes after respondent boarded the boat, Martin administered three field sobriety tests to respondent. Martin testified that respondent had difficulty with all three tests. Martin next administered a preliminary breath test to respondent, which respondent failed. Immediately thereafter, Martin called in their position to the peace officer to whom he reported, a deputy sheriff, and arrested respondent for operating a watercraft while under the influence. After arresting respondent, Jung and Martin transported respondent to shore where a Hennepin County Deputy Sheriff administered to respondent an implied consent advisory and a breathalyzer test. The test results showed an alcohol concentration of.14 at approximately 7:35 p.m. The deputy sheriff then took respondent into custody.

Respondent was charged under the LMCD Code with operating a watercraft while under the influence, boating with an alcohol concentration of .10 or more, having an alcohol concentration of .10 or more within two hours of operating a motorboat, careless operation of a watercraft (together, "the BWI laws"), and violating the quiet waters ordinance. See LMCD Code §§ 3.17, 3.01, subd. 2, 3.02 (1997) (incorporating the boating while intoxicated and personal watercraft provisions of Minn. Stat. §§ 86B.313 and 86B.331, which prohibit the careless operation of a watercraft, and stating the quiet waters regulations, respectively). Before trial, respondent moved to suppress all evidence of intoxication gathered after he boarded the patrol boat and to dismiss all BWI charges because Martin and Jung had no probable cause to arrest respondent for violating the BWI laws.

The district court held a hearing pursuant to State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 553-55, 141 N.W.2d 3, 13-14 (1965), to consider the motions. After hearing the testimony of Jung and Martin, the court determined that Jung's and Martin's observations made before respondent boarded the patrol boat did not amount to probable cause justifying respondent's arrest for violation of the BWI laws. The court further determined that because Jung and Martin told respondent to board the patrol boat without probable cause to arrest him for violation of the BWI laws, the initial encounter became an investigatory stop. The court then observed that, because special deputies are not peace officers, they do not have peace officers' authority to perform preliminary breath and field sobriety tests with only reasonable and articulable suspicion. Finally, the district court determined that as private citizens, Jung and Martin also lacked the authority to conduct investigations on reasonable and articulable suspicion.

Concluding that the results of the preliminary breath and field sobriety tests were obtained pursuant to an illegal investigatory stop, the district court granted respondent's motion to suppress this evidence and all evidence obtained thereafter, including the sheriff's breathalyzer test. Accordingly, the district court then granted respondent's motion to dismiss all charges, including a charge alleging violation of the lake's quiet waters ordinance.

The state appealed this pretrial order pursuant to Minn. R.Crim. P. 28.04, subd. 1, which permits prosecutors to appeal as of right a district court's pretrial order if based on a question of law. The court of appeals affirmed the district court's determination that the special deputies lacked probable cause to arrest respondent for violating the BWI laws in the absence of the results of the preliminary breath and field sobriety tests. See State v. Horner, 605 N.W.2d 405, 410-11 (Minn.App.2000). The court of appeals also affirmed the district court's conclusions that special deputies do not have the same powers to arrest as licensed peace officers, and that Jung and Martin, as private citizens, had no authority to subject respondent to an investigatory stop. See id. at 409-10. However, the court of appeals reversed the district court's dismissal of the quiet waters ordinance charge and remanded for consideration of that charge. See id. at 411. The state then appealed to this court.

I.

We will reverse a district court's pretrial decision to suppress evidence or dismiss only if the state demonstrates that the district court has clearly and unequivocally erred and that the error, unless reversed, will have a critical impact on the state's ability to successfully prosecute the defendant. See State v. Scott, 584 N.W.2d 412, 416 (Minn.1998); Minn. R.Crim. P. 28.04, subd. 1(1). We first determine whether, if the district court clearly and unequivocally erred in issuing its order, the error will have a critical impact on the state's case. See Scott, 584 N.W.2d at 416. Suppression of "all evidence * * * obtained subsequent to [respondent] being ordered to board Jung and Martin's patrol boat," as the district court ordered, would have a critical impact on the state's ability to prosecute respondent because the primary evidence of respondent's intoxication would be inadmissible. Thus, we turn to the question of whether the district court clearly and unequivocally erred in issuing the order appealed.

To answer that question, we first determine whether the water patrol officers should be treated as peace officers for purposes of gathering evidence of boating while intoxicated. If so, the results of the preliminary breath and field sobriety tests are admissible. If not, we must determine whether the special deputies are otherwise authorized to administer these tests. If not, the investigation results are not admissible and we must determine whether, in the absence of that evidence, the officers, acting as private citizens, properly arrested respondent so as to support administration of the breathalyzer test by the sheriff pursuant to Minn.Stat. § 169.123, subd. 2 (1998) (allowing administration of blood, breath, or urine test for presence of alcohol upon arrest for violation of Minn.Stat. § 169.121).

II.

The state claims that the court erroneously failed...