State v. Othoudt, CX-90-2145

• Decision Date: 13 March 1992
• Docket Number: No. CX-90-2145,CX-90-2145
• Citation: 482 N.W.2d 218
• Parties: STATE of Minnesota, Appellant, v. Richard William OTHOUDT, Respondent.
• Court: Minnesota Supreme Court

Page 218

482 N.W.2d 218

STATE of Minnesota, Appellant, v. Richard William OTHOUDT, Respondent.

No. CX-90-2145.

Supreme Court of Minnesota.

March 13, 1992.

Syllabus by the Court

1. The entry of a dwelling by a law enforcement officer will not be deemed to have been made with consent unless the officer has received some manifestation of consent.

2. Responses to questions of a law enforcement officer who enters a dwelling without a warrant do not, without more, provide consent to the warrantless entry.

3. The "emergency" exception to the constitutional prohibition on warrantless entries does not apply to a law enforcement officer's entry of a dwelling when the officer has been told not to come, and can determine, prior to entry, that medical aid is already being provided.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Thomas D. Hayes, Sherburne County Atty., Dean E. Emanuel, Asst. County Atty., Elk River, for appellant.

D. Sherwood McKinnis, Parker, Satrom, O'Neil, Lindberg & McKinnis, Cambridge, for respondent.

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

OPINION

GARDEBRING, Justice.

This case arises from the arrest of Richard Othoudt, in his home, for driving while under the influence of alcohol on January 30, 1990. Othoudt was charged with driving under the influence of alcohol within five years of a prior impaired driving conviction, in violation of Minn.Stat. Sec. 169.121, subd. 1(a) and 3(b); refusal to submit to testing, in violation of Minn.Stat. Sec. 169.121, subd. 1(a) and 3(c); and failure to notify police of a personal injury accident, in violation of Minn.Stat. Sec. 169.09, subd. 6 and 14(c). After a contested omnibus hearing, pursuant to Minn.R.Crim.P. 11, the trial court found that the state's warrantless entry and search of the Othoudt home, culminating in the arrest of respondent, was in violation of the fourth amendment of the United States Constitution and article I of the Minnesota Constitution. The court suppressed all evidence of intoxication obtained pursuant to the illegal arrest. The court found no probable cause to support the charges without the illegally obtained evidence, and dismissed the complaint. The court of appeals affirmed in State v. Othoudt, 469 N.W.2d 321 (Minn.App.1991).

At approximately 8:00 p.m. on January 30, 1990, Sherburne County Deputy Sheriff Steven Olmanson was dispatched to investigate a traffic accident. When he arrived at the scene of the accident, he found that a pickup truck had struck a tree. Although the truck's windshield was broken and there was blood on the interior of the vehicle, the driver was not present. While Deputy Olmanson and other officers were investigating the scene, hoping to locate the driver, the sheriff's office dispatcher notified Deputy Olmanson that Dawn Othoudt, respondent's wife, had called to report the accident, and had said she was the driver of the vehicle and was not injured. Because of the blood in the vehicle, the dispatcher directed Deputy Olmanson and an ambulance to go to the Othoudt residence.

The ambulance personnel arrived at the Othoudt residence first and began attending to Dawn Othoudt in the entryway of the house. When Deputy Olmanson arrived he walked up to the house and entered it as an ambulance attendant was exiting. He did not knock or ask permission to enter, prior to entering the home, although he could see Dawn Othoudt in the entryway. Dawn Othoudt did not give him permission to enter. After entering the house Deputy Olmanson began questioning Dawn Othoudt about the accident and her injuries.

During the questioning Dawn Othoudt admitted that she had not been the driver of the car and said that her husband had been driving. She also said that he had been drinking all day and was drunk. As she said this she pointed upstairs. Deputy Olmanson and the ambulance attendant, followed by Dawn Othoudt, went upstairs and into respondent's bedroom, where he was in bed. After asking respondent whether he was injured, Deputy Olmanson asked him to get out of bed and get dressed, and continued questioning him about the accident. As they talked Deputy Olmanson observed that respondent's breath smelled of alcohol, his eyes were bloodshot and slightly glassy, his speech was slurred and he was a little uncoordinated. Deputy Olmanson escorted respondent downstairs, arrested him, placed him in handcuffs and took him to the sheriff's office.

Normally, this court will only reverse a pre-trial decision of the trial court suppressing evidence if the State demonstrates "clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial." State v. Webber, 262 N.W.2d 157, 159 (Minn.1977). However, when reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed. See State v. Storvick, 428 N.W.2d 55, 58 n. 1 (Minn.1988) (citing Berge v. Commissioner of Public Safety, 374 N.W.2d 730, 732 (Minn.1985)).

The fourth amendment to the United States Constitution, and article I of the Minnesota Constitution, proscribe unreasonable searches and seizures by the government of "persons, houses, papers and effects." U.S. Const. amend. IV; Minn. Const. art. I, Sec. 10. ¹ Under the Fourth amendment, searches conducted outside the judicial process are per se unreasonable, subject to a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Courts are particularly reluctant to find exceptions to this rule in the context of a warrantless search or seizure in a home. See Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); Storvick, 428 N.W.2d at 61. To justify a warrantless entry and search of a person's home to make a felony arrest the state must show either consent or probable cause and exigent circumstances. See Payton, 445 U.S. at 576, 590, 100 S.Ct. at 1374-75, 1382. If such an entry is made without consent or probable cause and exigent circumstances, its fruit must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963); see also New York v. Harris, 495 U.S. 14, 17-19, 110 S.Ct. 1640, 1643, 109 L.Ed.2d 13 (1990).

The police, investigating an accident or a crime, may enter and search a suspect's home, without a warrant, if they receive consent to do so. See Payton, 445 U.S. at 576, 100 S.Ct. at 1374-75. A valid and voluntary consent to enter may be followed by an in-home arrest. United States v. Briley, 726 F.2d 1301, 1305 n. 2 (8th Cir.1984). The question of whether consent is voluntary is a question of fact, and is based on all relevant circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); State v. Howard, 373 N.W.2d 596, 599 (Minn.1985). The government has the burden of showing that consent was given freely. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968). Consent does not have to be verbal, but may be implied from conduct. See Howard, 373 N.W.2d at 599; State v. Patricelli, 324 N.W.2d 351, 353 (Minn.1982).

There is no question that Dawn Othoudt had the authority to consent to the entry of the Othoudt home. See State v. Ulm, 326 N.W.2d 159 (Minn.1982). However, she did not give her consent verbally. The question then becomes whether her actions, or lack of action, and all the relevant circumstances in this case constitute implied consent. The state argues that this case is like Howard where this court held that when a murder suspect, who had previously cooperated with the police in the investigation, and had even given them a key to search his home in his absence, opened his door when the police knocked and stepped back, he consented to the police entry of his house. Howard, 373 N.W.2d at 599. The state argues that by calling the sheriff's office to report the accident Dawn Othoudt had prior contact with the police and actually "invited" contact with the police. The state also argues that her apparent consent to the ambulance crew's entry means she impliedly consented to the deputy's entry as well.

The Howard case is easily distinguished from the facts here. The only prior contact Dawn Othoudt had with the sheriff's office was her telephone call to report the accident. She did not have the extensive contact with the police that the murder suspect in Howard had, nor had she previously provided police officers a key, as had Howard. Furthermore, the police in Howard knocked at the door before they entered and Howard opened it and stepped back, thus manifesting consent by his welcoming behavior. Deputy Olmanson did not knock or in any way seek permission to enter, although he had the opportunity to do so since he testified he could see Dawn Othoudt sitting in the entryway as he approached the door, and Dawn Othoudt in no way indicated, by her conduct, a consent to enter.

The state also argues that the fact that Dawn Othoudt answered Deputy Olmanson's questions after he entered the house indicates she consented to his entry. When an uninvited police officer enters a home without a warrant and begins asking questions, answering those questions does not indicate an individual consented to the entry. United States v. Wenzel, 485 F.Supp. 481, 483 (D.Minn.1980). The fact that Dawn Othoudt answered the...