State v. Winkler

• Citation: 552 N.W.2d 347
• Decision Date: 18 July 1996
• Docket Number: 950371,Nos. 950370,s. 950370
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Robert WINKLER, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 347

552 N.W.2d 347

STATE of North Dakota, Plaintiff and Appellee, v. Robert WINKLER, Defendant and Appellant.

Criminal Nos. 950370, 950371.

Supreme Court of North Dakota.

July 18, 1996.

Alan J. Larivee of Pearson, Christensen, Larivee, Clapp, Fiedler & Fisher, Grand Forks, for defendant and appellant.

Laurie A. Fontaine, State's Attorney, Cavalier, for plaintiff and appellee.

NEUMANN, Justice.

Robert Winkler appeals from the judgment and conviction of negligent homicide, a class C felony in violation of N.D.C.C. § 12.1-16-03, and from the judgment and conviction of leaving the scene of an accident involving death or personal injuries, a class A misdemeanor in violation of N.D.C.C. § 39-08-04. Both convictions were entered on a conditional plea of guilty under Rule 11(a)(2), N.D.R.Crim.P., pending this court's review of the trial court's denial of motions to suppress evidence. We affirm the trial court's decision not to suppress Winkler's statements before and after his arrest, and the results of Winkler's Intoxilyzer test, but we remand for further consideration the trial court's decision not to suppress evidence seized from the search of Winkler's garage.

While walking along a highway west of Cavalier, North Dakota, on December 26, 1994, around 7:00 p.m., Gerald Carlson was hit by a vehicle. Carlson died from his injuries.

Responding to the accident call, Police Officer Kenneth Wolf began investigating the scene to determine what had happened to Carlson. He examined the immediate area for physical evidence, and found a broken headlight assembly and broken glass. Officer Wolf then went to the hospital where Carlson had been taken and talked with the attending doctor, who told him Carlson had died of massive trauma to the head, an injury consistent with being hit by a vehicle.

Officer Wolf relayed this information to the Chief of Police, Jim Johnson, who, along with Deputy Sheriff Calvin Cluchie, began investigating the local bars for information on persons who might have left those bars around the time of the accident. They were told Robert Winkler had been drinking and left one between 6:15 and 7:00 p.m. and another around 6:45 p.m. In the meantime, Officer Wolf and Keith Ogden, a highway patrol trooper, had further investigated the accident scene and determined a newer model pickup probably had been involved in the accident. Officer Cluchie knew Winkler drove a pickup.

After learning Winkler's whereabouts around the time of the accident, Cluchie, Johnson, and James Martindale, Pembina County Sheriff, drove to Winkler's home located a few miles west of Cavalier. They entered Winkler's property on the driveway, which extends over 200 feet from the public road to Winkler's home, and followed the driveway's right-hand turn behind the home where they noticed Winkler's pickup parked in the right-hand stall of the two-stall garage. The unattached garage is situated some 30 feet from the home.

Driving closer to the garage and illuminating the area with the headlights from the patrol car, the officers observed damage to the passenger front fender of Winkler's pickup. Exiting the patrol car, the officers confirmed the damage from their view outside the garage, and then entered the garage to further inspect the damage. The garage door was open.

The officers then applied for a search warrant, which the judge issued at 11:58 p.m. on December 26, 1994. In his affidavit supporting the warrant, Officer Cluchie did not inform the judge of the officers' entry into Winkler's garage.

At approximately 12:25 a.m., December 27, 1994, Officers Cluchie and Wolf knocked on the rear door of Winkler's home to serve the warrant on Winkler. Winkler answered the door, and Cluchie asked him to step outside the door. Because he was not properly dressed, Winkler refused but invited the officers into his home. The officers, along with Martindale and Johnson, accepted, and began explaining to Winkler that they were executing a search warrant because they believed his pickup had been involved in a fatal hit-and-run accident. Winkler interrupted, stating "I knew I hit something, but I thought it was a deer." He continued, "It might have been a snowmobile, but I thought it was a deer."

Immediately upon hearing these statements, at 12:31 a.m., Officer Wolf arrested Winkler and informed him of his Miranda rights. Winkler continued to make similar statements, and additionally stated something to the effect of "What the hell was he doing walking down the middle of the road." After getting dressed, Winkler was placed in a patrol car at 12:40 a.m.

Because the officers noticed Winkler had a strong odor of alcohol, bloodshot eyes, and slurred speech, they also arrested him for driving under the influence. Winkler was taken to the police station, and given an Intoxilyzer test at 1:05 a.m., resulting in a blood-alcohol content of .152 percent.

After photographing Winkler's pickup in the garage, the officers seized the pickup. Trooper Ogden determined the vehicle parts from the accident scene came from Winkler's pickup.

Winkler was charged with leaving the scene of an accident involving death or personal injuries, negligent homicide, and driving under the influence. The DUI charge was later dismissed. After his motions to suppress evidence were denied, Winkler entered a conditional plea of guilty to the two remaining charges reserving his right, under Rule 11(a)(2), N.D.R.Crim.P., to appeal from the court's denial of his motions.

On appeal Winkler argues the trial court erred when it denied his motions to suppress: (1) the evidence seized from the search of his garage conducted under the warrant supported by Officer Cluchie's affidavit, (2) the statements he made before and after his arrest, and (3) the results of his Intoxilyzer test. We address each in turn.

SUPPRESSION OF SEARCH WARRANT EVIDENCE

Winkler makes alternative arguments to invalidate the search warrant, and thereby require suppression of the evidence seized from the search of his garage. First, Winkler claims the warrant was not supported by probable cause because the information obtained by the officers was gathered through two unlawful searches: first, when the officers entered his property on his driveway and observed his pickup in his garage, and second, when they entered his garage to further inspect his pickup. Alternatively, Winkler argues the warrant is invalid because, in his affidavit, Officer Cluchie did not inform the judge issuing the warrant of the officers' prior unlawful entry into Winkler's garage. The State responds that the officers' action of entering Winkler's property and making observations while on his property were not unlawful because the actions did not constitute a "search," and further, if the entry into Winkler's garage was unlawful, the evidence inevitably would have been discovered.

The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article 1, section 8 of the North Dakota Constitution, protect an individual from unreasonable searches and seizures. A search occurs when the government intrudes upon an individual's reasonable expectation of privacy. State v. Blumler, 458 N.W.2d 300, 301 (N.D.1990) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). When an individual possesses a reasonable expectation of privacy in a given area, the government must obtain a warrant before searching that area "subject only to a few specifically established and well-delineated exceptions." Horton v. California, 496 U.S. 128, 133 n. 4, 110 S.Ct. 2301, 2306 n. 4, 110 L.Ed.2d 112, 120-21 n. 4 (1990) (quoting Katz, 389 U.S. at 357, 88 S.Ct. at 514). A warrant cannot issue except upon probable cause. E.g., State v. Runck, 534 N.W.2d 829, 831-32 (N.D.1995). Absent an exception to the warrant requirement, the exclusionary rule mandates suppression of evidence obtained in violation of the protection against searches conducted without a warrant because they are per se unreasonable. Horton, 496 U.S. at 133 n. 4, 110 S.Ct. at 2306 n.4 (emphasis added); Blumler, 458 N.W.2d at 302.

We do not agree with Winkler that the officers violated his reasonable expectation of privacy, and therefore conducted a warrantless search, when they entered his property on his driveway and observed his pickup in his garage. Like our neighboring courts, this court believes police with legitimate business may enter certain areas surrounding a home where persons may have a reasonable expectation of privacy, such as curtilage, but which are "impliedly open to use by the public." State v. Crea, 305 Minn. 342, 233 N.W.2d 736, 739 (1975); State v. Krech, 403 N.W.2d 634, 637 (Minn.1987) (stating police may "approach a dwelling in order to conduct an investigation if they restrict their movements to places visitors could be expected to go"); State v. Lodermeier, 481 N.W.2d 614, 624 (S.D.1992) (stating "[e]ven though [a driveway] is part of the curtilage, a police officer with legitimate business may enter a driveway and, while there, may inspect objects in plain view"); see also Lubenow v. N.D. State Highway Comm'r., 438 N.W.2d 528, 532 (N.D.1989) (stating appellant did not have "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"). Here, the officers were investigating a fatal hit-and-run accident with information possibly pointing to Winkler's involvement. Any member of the public would have entered upon Winkler's property in the manner the officers did. We, therefore, have no difficulty sustaining the officers' initial entry onto Winkler's driveway and observation of Winkler's pickup in the open garage.

We have more difficulty, however, with the officers' warrantless entry into Winkler's garage. Under these circumstances, Winkler had a reasonable...