State v. Vivier
| Decision Date | 03 April 1990 |
| Docket Number | No. C2-89-1985,C2-89-1985 |
| Parties | STATE of Minnesota, Appellant, v. Jeffrey James VIVIER, a/k/a James Jeffrey Vivier, a/k/a James Vivier, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
North Dakota law authorizes out-of-state peace officers to make fresh pursuit arrests in North Dakota when probable cause to believe the suspect committed a felony in another jurisdiction exists.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Wayne H. Swanson, Polk County Atty., Crookston, for appellant.
John M. Stuart, State Public Defender, Susan K. Maki, Asst. Public Defender, Minneapolis, for respondent.
Joel A. Watne, Sp. Asst. Atty. Gen., St. Paul, for amicus curiae, Atty. Gen.
Considered and decided by RANDALL, P.J., and FOLEY and GARDEBRING, JJ.
The State of Minnesota appeals the trial court's decision to dismiss a criminal complaint against respondent Jeffrey James Vivier on jurisdictional grounds. Because the arrest of respondent was valid under the North Dakota felony fresh pursuit statute, we reverse and remand for trial.
On August 6, 1989, at approximately 2:40 a.m., Officer George LeTexier of the East Grand Forks Police Department observed a vehicle park in front of the closed Pick-A-Flick video store in East Grand Forks, Minnesota. The officer saw the driver, later identified as respondent, get out of the vehicle, walk around to the front, and bend down. Respondent then entered the closed video store through the front door. A short time later, respondent left the store, got in his vehicle, and began driving away.
Respondent's activities aroused LeTexier's suspicion. LeTexier decided to stop respondent and question him regarding his entry into the closed video store. When LeTexier caught up to respondent's vehicle, he turned on the squad car's lights and siren. Respondent's vehicle immediately took off at a high rate of speed toward the bridge connecting the city of East Grand Forks, Minnesota with Grand Forks, North Dakota, and a high-speed chase ensued. LeTexier pursued respondent across the bridge into North Dakota.
When the chase finally ended, the officer ordered respondent out of the vehicle, pat-searched respondent for weapons, and handcuffed him. Officer LeTexier noticed that respondent's eyes were bloodshot and watery, and the officer smelled the odor of alcohol on respondent's breath. A preliminary breath test indicated that respondent had a probable blood alcohol concentration over the legal limit. The officer placed respondent in the rear of the squad car. A subsequent search of respondent's vehicle revealed a checkbook with respondent's name on it and three cans of beer, one of which was open.
Shortly after the chase ended, a Polk County (Minnesota) deputy sheriff and a North Dakota state highway patrol officer arrived at the scene. The officers asked respondent whether he would agree to return to Minnesota or whether he would prefer to remain in North Dakota to face charges. Respondent first refused to answer the question, then attempted to determine whether DWI is a misdemeanor in Minnesota. LeTexier told respondent that DWI is a misdemeanor in both North Dakota and Minnesota. The North Dakota highway patrol officer told respondent that he would face the same charges in North Dakota as he would in Minnesota. Respondent agreed to return to Minnesota.
LeTexier transported respondent to the East Grand Forks Police Department where implied consent procedures were performed and respondent was booked. Respondent refused to consent to a breath test. Respondent's driver's license had been revoked due to a prior conviction for driving while under the influence of alcohol.
Further investigation revealed that respondent had a key to enter the Pick-A-Flick video store, and at the time of the incident, lived in a room in the building in which the video store was located. Because of this information, no burglary charges were filed and no issue of burglary or attempted burglary now exists. Respondent was subsequently charged in Polk County District Court with: (1) fleeing a peace officer in a motor vehicle; (2) driving while under the influence of alcohol after revocation for driving while under the influence of alcohol; (3) driving while under the influence of alcohol within five years of a prior conviction for driving under the influence of alcohol; (4) driving while under the influence of alcohol; (5) driving after revocation; and (6) possession of open bottle.
At a supplemental omnibus hearing, respondent moved to dismiss the complaint claiming the Minnesota officer had no jurisdiction to make an arrest in North Dakota. LeTexier testified that he decided to stop respondent because he wanted to know whether respondent had a reason for being in the closed video store, and because he suspected respondent of possibly burglarizing the closed video store. The officer also testified that he formally arrested respondent in North Dakota for fleeing and driving while under the influence.
The trial court granted respondent's motion to dismiss relying on Piotrowski v. Commissioner of Public Safety, 433 N.W.2d 124 (Minn.Ct.App.1988), pet. for rev. granted (Minn. Feb. 10, 1989) (Piotrowski I). 1 The trial court found that the stop of respondent's vehicle was based on a "particular and objective basis for suspecting criminal activity," not on probable cause to believe a felony had occurred. Thus, the court concluded the Minnesota police officer was not authorized by North Dakota's felony fresh pursuit statute to arrest respondent.
Did the trial court err by concluding that the stop and subsequent arrest of respondent by a Minnesota peace officer in North Dakota was invalid?
This case presents a question of law based on the uncontradicted testimony of Officer LeTexier. We review questions of law de novo and do not defer to the conclusions reached by the trial court. Berge v. Commissioner of Public Safety, 374 N.W.2d 730, 732 (Minn.1985).
The validity of respondent's arrest in North Dakota depends on "whether 'fresh pursuit' or 'citizen's arrest' legitimize the foreign-state stop" by the Minnesota police officer. Piotrowski I, 433 N.W.2d at 127. Whether a foreign officer has jurisdiction to make an arrest in a neighboring state based on fresh pursuit of a person who has committed a criminal act depends on the law of the state in which the arrest was made. United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210 (1948); Piotrowski I, 433 N.W.2d at 127; State v. Goff, 118 N.H. 724, 727-28, 393 A.2d 562, 565 (1978). Thus, we must examine North Dakota's version of the Uniform Law on Interstate Fresh Pursuit to determine whether this arrest was authorized.
The North Dakota statute provides:
Any member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit of a person in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody as has any member of any duly organized state, county, or municipal peace unit of this state to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.
N.D.Cent.Code Sec. 29-06-05 (1974) (emphasis added). "Fresh pursuit" is also defined by statute As used in section 29-06-05, the term "fresh pursuit" shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It also shall include the pursuit of a person suspected of having committed a supposed felony, though no felony has been actually committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit, as the term is used in this chapter, shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
N.D.Cent.Code Sec. 29-06-07 (1974) (emphasis added). These statutes authorize entry into North Dakota by a foreign officer to arrest a suspect when the officer believes the suspect committed a felony in another jurisdiction, and the officer enters North Dakota in fresh pursuit of that suspect. See Piotrowski I, 433 N.W.2d at 127.
Appellant first argues that misdemeanor fresh pursuit arrests are authorized under North Dakota law because "they are not specifically excluded." This argument is totally without merit. As we stated in Piotrowski I:
We cannot read into a clear and unambiguous North Dakota law, which specifically used the word "felony," the inclusion of an entirely separate class of offense entitled "misdemeanor" or "petty misdemeanor."
Id. The statute authorizing fresh pursuit arrests creates a specific exception to the normal warrant requirement, and must be narrowly construed. Appellant's proposed construction of the North Dakota law fails in view of the firmly established rule that requires strict construction of criminal statutes against the state and in favor of a defendant. See, e.g., State v. Soto, 378 N.W.2d 625, 627-28 (Minn.1985) (). We will not interpret the North Dakota statute to permit fresh pursuit arrests in North Dakota by Minnesota peace officers when all that exists is the suspicion, even though reasonable, that only a misdemeanor was committed in Minnesota. Appellant argues vigorously that misdemeanor fresh pursuit authority is needed by Minnesota peace officers in border areas to prevent traffic offenders and suspected DUI drivers from hightailing it across the North Dakota (or any other neighboring state) border. Appellant correctly points out that high speed flight endangers both those involved in the chase and others on the highway. We accep...
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Olson v. N.D. Dep't of Transp.
...pursuit arrest procedure was validly followed by a Minnesota officer pursuing an individual into North Dakota); Minnesota v. Vivier , 453 N.W.2d 713, 715–16 (Minn. Ct. App. 1990) (determining a Minnesota officer had valid jurisdiction to arrest in compliance with the North Dakota felony fre......
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...if the evidence is of a crime different from the crime for which the initial stop was made, is admissible at trial. State v. Vivier, 453 N.W.2d 713, 717 (Minn. App. 1990). Both parties agree that Paulos had the authority to stop appellant. But appellant argues that after removing appellant ......
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