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City of Bismarck v. Brekhus

Supreme Court of North Dakota

March 22, 2018

City of Bismarck, Plaintiff and Appellant
Deanne Brekhus, Defendant and Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

          Melanie P. Dornonville de la Cour, Assistant City Attorney, Bismarck, N.D., for plaintiff and appellant.

          Chad R. McCabe, Bismarck, N.D., for defendant and appellee.


          Tufte, Justice.

         [¶ 1] The City of Bismarck appeals from a district court order granting Deanne Brekhus's motion to suppress evidence. We conclude the police officer's warrantless limited entry into her open garage while in "hot pursuit" did not violate her rights under either the Fourth Amendment or N.D. Const. art. I, § 8. We reverse and remand for further proceedings.


         [¶ 2] On December 16, 2016, at about 10:10 p.m., a Bismarck police officer observed a vehicle fail to negotiate a turn and slide into a snowbank on the side of the road. The officer then observed the vehicle back out of the snowbank and proceed to fishtail down the street. The officer testified he suspected the driver was driving at an unsafe speed for the road conditions.

         [¶ 3] The police officer turned around, followed the vehicle, and activated his overhead lights, but the driver did not stop. The district court found the officer had "activated his siren and continued to follow the vehicle for several blocks but the driver refused to comply with the obvious signals to stop and continued to flee the patrol car." The vehicle made several turns before entering a parking lot, and after about thirty seconds of pursuit, stopped in front of a garage door, waited for the door to open, and entered the garage. The garage was not attached to the defendant's residence, and the overhead garage door remained open. The officer commanded Brekhus to stay in the vehicle when she attempted to exit her vehicle.

         [¶ 4] At this point the police officer entered the garage on foot and made contact with the defendant, immediately noting the odor of burnt marijuana and alcohol. The officer observed that Brekhus was slurring her speech; had bloodshot, glossy eyes; and had difficulty keeping her eyes open while speaking with the officer. The officer had her come out of the garage and perform field sobriety tests. Brekhus was unable to follow directions for the horizontal gaze nystagmus test. The officer did not ask her to perform the one-leg stand or walk-and-turn tests because she had a walking cast on her leg.

         [¶ 5] After the police officer read Brekhus the implied consent advisory, she refused to submit to a preliminary breath test and was placed under arrest for driving under the influence. Brekhus gave the officer permission to retrieve her vehicle registration and proof of insurance from her vehicle in the garage. In his attempt to retrieve the documents, the officer observed in plain view a glass smoking device in the center console, warm to the touch and containing a substance he believed to be marijuana. The officer placed her under arrest for DUI refusal, marijuana, and paraphernalia offenses and transported her to the Bismarck police department. She was again read the implied consent advisory, and she again refused to provide a breath sample.

         [¶ 6] The City charged Brekhus with driving under the influence, possession of drug paraphernalia, and possession of marijuana. In February 2017 Brekhus moved the district court to suppress evidence, arguing that her rights under the Fourth Amendment and N.D. Const. art. I, § 8, were violated when the police entered her garage and that her vehicle was searched in violation of her constitutional rights. She also moved the court contending she was denied her statutory right to consult counsel before chemical testing. The City opposed both motions.

         [¶ 7] In April 2017 the district court held a hearing. The court subsequently entered an order granting Brekhus's motion on the basis of the police officer's initial entry into the open, detached garage. The court explained:

As much as it seems an unjust result to reward a defendant who commits a traffic violation (especially a potentially drunk driver) and then knowingly refuses to stop after being given a clear and undeniable signal from a pursuing police officer (by the use of flashing overhead lights and a siren) and who ultimately escapes into an open garage to avoid arrest, the Constitution guarantees that the Defendant's garage be free from unreasonable search and seizure. Once she entered the garage, [the officer] did not have a right to enter the Defendant's detached and open garage to make contact with her regarding the misdemeanor offenses. [The officer] could have requested that she come to speak with him, or could have waited until the Defendant left her garage to walk towards her apartment and ...

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