Pesterfield v. Commissioner of Public Safety

399 N.W.2d 605, 1987 Minn. App. LEXIS 3985
CourtCourt of Appeals of Minnesota
DecidedJanuary 20, 1987
DocketCX-86-1119
StatusPublished
Cited by5 cases

This text of 399 N.W.2d 605 (Pesterfield v. Commissioner of Public Safety) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pesterfield v. Commissioner of Public Safety, 399 N.W.2d 605, 1987 Minn. App. LEXIS 3985 (Mich. Ct. App. 1987).

Opinion

OPINION

NIERENGARTEN, Judge.

Appellant Linda Lee Pesterfield’s driving privileges were revoked pursuant to the implied consent law. The trial court sustained the revocation and Pesterfield appeals. We affirm.

FACTS

Janet Carlson observed an Oldsmobile being driven erratically in Apple Valley by an older woman with “salt and pepper” colored hair. At a turn onto another street, the vehicle went out of control and came to rest on top of a snowbank. Carlson had observed the driver with her head tilted back and her arm flung to one side. Carlson concluded the driver was possibly intoxicated and within fifteen minutes Carlson called the Apple Valley Police Department, relaying her observations and opinion and giving the license number of the vehicle. She also gave her name and address to the dispatcher.

Shortly thereafter, Officer Anglin of the Apple Valley Police Department arrived at the scene. After checking the license through the dispatcher, he found that Pes-terfield was the owner and that she lived very close to the intersection. Anglin proceeded toward the Pesterfield residence encountering, on the way, Pesterfield’s 17-year-old daughter who told him her mother was the driver and that she was now at home. Anglin went to the Pesterfield residence where a second officer joined him.

The officers entered the home with the consent of the daughter, and shortly thereafter received her permission to go upstairs to talk to Pesterfield. Officer Anglin knocked on the bedroom door. Pesterfield first told the officers to “go away,” but later opened the door and began to converse with Anglin.

During the conversation the officer observed the odor of alcohol, bloodshot eyes, and slurred speech. He then requested a preliminary breath test, but Pesterfield could not provide an adequate sample. She was placed under arrest for driving a motor vehicle while under the influence.

Pesterfield stipulated that the officer properly read her the implied consent advisory, she understood her rights, and she agreed to take a breath test. She further stipulated she was given a valid Intoxilyzer test with a .24 alcohol concentration.

*608 The court found that the officer had probable cause to believe Pesterfield was driving while under the influence, and that she was involved in an accident. The court found all observations by the police officer of Pesterfield took place within forty-five minutes of the time she was driving her vehicle. The court also found that a portion of the information used by the officer to establish probable cause was properly furnished by Janet Carlson over the telephone to the police dispatcher, and was also lawfully obtained by him from Pesterfield’s daughter. The court determined that none of Pesterfield’s constitutional rights, including her right to be free from an illegal search or an illegal entry into her residence, was violated by the police.

The trial court sustained the revocation of Pesterfield’s driving privileges, and she brought an appeal from the order.

ISSUES

1. Did the trial court improperly consider facts which the police officer did not possess at the time of the arrest in making the probable cause determination?

2. Was the consent which the police officers obtained to enter appellant’s home valid?

3. Did the police officer have probable cause to believe that appellant had been driving while under the influence?

ANALYSIS

1. Pesterfield argues that the testimony by Carlson that the automobile was being driven erratically, that the driver attempted to negotiate the turn, that Carlson observed the driver with her head tilted back and her arm flung to one side, and that within fifteen minutes thereafter she called the Apple Valley police was irrelevant and should be excluded because this information was not conveyed to the police dispatcher. She also argues that all of Carlson’s testimony was irrelevant, and only the officer can testify as to the information he possessed at the time of the arrest.

It is true that probable cause must be evaluated from a police officer’s viewpoint at the time of the arrest. State v. Harris, 265 Minn. 260, 264, 121 N.W.2d 327, 331, cert. denied, 375 U.S. 867, 84 S.Ct. 141, 11 L.Ed.2d 94 (1963). Information possessed by several officers may be considered in the aggregrate to determine whether probable cause existed. See Rancour v. Commissioner of Public Safety, 355 N.W.2d 462, 464 (Minn.Ct.App.1984).

At the hearing, Carlson distinguished the facts which she told the dispatcher from her additional observations. She testified that she called the police and asked for the procedure for reporting a drunk driver. She advised the dispatcher that she was on her way to the bank, a woman veered around a truck on Holyoke and Carlson stopped; the woman attempted to make a right-hand turn onto 138th Street Court, missed the turn, and went up into a snowbank. She said that this happened twenty to twenty-five minutes previously, that the woman’s car was still there, but that the woman was not. She described the woman to the dispatcher as forty to fifty years old, with salt and pepper grayish hair. She gave the license plate number to the police.

While the trial court could not have properly considered information which the police agency did not possess at the time of the arrest in its probable cause determination, we cannot say it was error for the trial court to allow Carlson to testify as to her observations. In its findings the trial court specifically referred to basing the probable cause determination, in part, on information “properly furnished by Janet Carlson over the telephone to the police dispatcher.” In addition, in this type of case, where an officer comes upon an abandoned vehicle, the person arrested often asserts that he or she was not the driver. See, e.g., Hess v. Commissioner of Public Safety, 392 N.W.2d 586 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Oct. 22, 1986). Admissibility of evidence is within the discretion of the trial court. Weiby v. *609 Wente, 264 N.W.2d 624, 627 (Minn.1978). The trial court did not abuse its discretion by admitting this testimony.

2. The police officers entered Pester-field’s home and arrested her without a warrant. Pesterfield argues that the police unconstitutionally intruded in her home, and that information obtained as a result of the illegal intrusion should not be considered in a probable cause determination. See Krause v. Commissioner of Public Safety, 358 N.W.2d 481 (Minn.Ct.App.1984).

The fourth amendment “prohibits the police from making a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest.” Payton v.

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Bluebook (online)
399 N.W.2d 605, 1987 Minn. App. LEXIS 3985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pesterfield-v-commissioner-of-public-safety-minnctapp-1987.