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