Petition for Writ of Certiorari — Akins v. Minnesota

Supreme e

Fr}&D

00-147 JUL 2 6 200

OFFICE OF THE CLERK

No.

In the

Supreme Court of the United States

James Clifford Akins,

Petitioner,

VS.

State of Minnesota,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

PETITION FOR WRiT OF CERTIORARI

Andrew S. Birrell (#133760)

Counsel of Record

R. Travis Snider (#270842)

BIRRELL, DUNLAP & RITTS, LTD.

510 First Avenue North

Suite 500

Minneapolis, Minnesota 55403

(612) 871-7000

Attorneys for Petitioner

James Clifford Akins

2000 — Bachman Legal Printing @ (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

S>ppe

Il.

III.

QUESTIONS PRESENTED

Whether a police officer may make a warrantless, non-

consensual nighttime entry into a person’s home to

investigate a private citizen’s report of bad driving

behavior where the police officer neither has, nor

believes he has, probable cause to believe the person has

committed any crime.

Whether a police officer has a lawful basis to stop a car

where, upon receiving a private citizen’s report of bad

driving conduct, the officer follows the car and sees no

unlawful driving conduct nor observed anything else

justifying a stop.

Whether forcing a person to relitigate an issue that has

already been conceded by the state on appeal in an

implied consent proceeding violates a person’s federal

right to due process.

PARTIES TO THE PROCEEDING BELOW

State of Minnesota

James Clifford Akins

TABLE OF CONTENTS

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TABLE OF HORITIES

U.S. Supreme Court Cases

Page

Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921,

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California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528,

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Constitutional and Statutory Provisions

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United States Constitution, Amendment XIV........................- l

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OPINIONS BELOW

The Minnesota Supreme Court denied Petitioner’s

Petition for further review in an Order opinion dated and filed

April 25, 2000. The Minnesota Court of Appeals filed an

unpublished decision on March 14, 2000, affirming the trial

court’s decision. The appeal to the Minnesota Court of

Appeals followed the trial court’s denial of petitioner’s

motions to suppress evidence and dismiss the charges, and the

trial court’s finding petitioner guilty of gross misdemeanor

driving under the influence, careless driving, and obstructing

legal process.

JURISDICTION

The order sought to be reviewed was entered in the

Minnesota Supreme Court on April 25, 2000. Jurisdiction to

review on a writ of certiorari the order in question is

conferred by 28 U.S.C. §1257.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment IV, United States Constitution

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated. . .

Amendment XIV, United States Constitution

No State shall make or enforce any law which shall

abridge the ‘privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law. . .

|

STATEMENT OF THE CASE

In a criminal complaint dated June 9, 1998, petitioner

James Clifford Akins was charged in Hennepin County

District Court, State of Minnesota with one count of enhanced

gross misdemeanor driving under the influence of alcohol,

one gross misdemeanor count of driving under the influence

of alcohol, one gross misdemeanor count of obstructing legal

process, and one misdemeanor count of careless driving.

Defendant filed a motion to suppress the state’s evidence. A

hearing was held and, on June 22, 1999, the Trial Court

denied petitioner’s motion. Defendant waived trial by jury

and, also on June 22, 1999, the Court, on stipulated facts,

found petitioner guilty on counts II, III, and I'V (the trial court

dismissed the enhanced gross misdemeanor charge.) On June

23, 1999, petitioner filed a notice of appeal to the Minnesota

Court of Appeais.

In an Unpublished Opinion filed March 14, 2000, the

Minnesota Court of Appeals affirmed petitioner’s conviction.

The Minnesota Supreme Court denied petitioner’s Petition for

Review on April 25, 2000.

On April 21, 1998, at about 8:25 p.m., Kristin Johnson

was driving east on Highway 394 and was entering

southbound Highway 169. A black BMW drove in front of

her - cutting her off. The car drove on the curb.

In response, Ms. Johnson slowed her car. As the cars

entered the 169 southbound ramp, she thought the black car

“almost hit the cement barrier on the left hand side of the

median.” She saw the car speed up, slow down and drive

“back and forth between lanes.” Ms. Johnson called 911

because the black car had its flashers on. Ms. Johnson

thought something was wrong with the person.

The 911 dispatcher asked Ms. Juhnson to continue to

follow the car. Ms. Johnson told the dispatcher the license

number of the car. They turned west on Highway 62. At an

intersection, they turned left and Ms. Johnson saw a police

2

ee aT re

squad car. She told the dispatcher about the police car, the

dispatcher told her she could go ahead. She went straight and

saw the car turn off to the left as she drove away.

The police car which followed the black car was driven

by Trooper David Sutherland.

Sutherland had been driving south on Highway 169 when

he heard an alert on his police radio about a “possibly

impaired driver.” He was later told the car was a black BMW

_ with Minnesota license 335 FYL. Entering that information

into the computer terminal in his car, Sutherland learned the

description and address of the car’s registered owner. As he

sat stopped on the roadway shoulder, he saw the black car

drive past him.

To investigate why the driver had been driving in the

manner that had been reported, Sutherland followed the black

car and turned on his red emergency lights but not his siren.

He followed the black car for approximately two blocks.

Sutherland said it “is neither usual or unusual” for a car to

travel a couple of blocks before stopping for red lights.

Sutherland testified he did not know whether the driver of the

black car, petitioner, ever saw his red lights. :

The black car turned right into the address of the home of

the registered owner, petitioner. The garage door of the home

was going up and the black car pulled into the garage.

Sutherland testified he never personally observed “any

inappropriate driving conduct.” Sutherland parked his squad

car in the driveway of petitioner’s home.

Sutherland then got out of his car and walked into the

garage. He testified that he got out of his car and went into

the attached garage quickly in case the garage door was

closing. The garage of petitioner’s home is attached and part

of the house. A diagram of the home and surrounding area

was created at the Implied Consent hearing and was

submitted to the trial court as part of the record.

Sutherland’s stated purpose in going into the home was

to investigate what he had been told concerning petitioner’s

3

driving conduct. At the time he first entered the petitioner’s

house Sutherland testified he did not believe he had probable

cause to arrest petitioner for DUI. He had not spoken with

petitioner, and he had not observed the petitioner at all.

Believing he lacked probable cause to arrest petitioner,

Sutherland testified he wanted to talk to petitioner.

After entering his home, Sutherland spoke with

petitioner, observed the odor of alcohol and asked Appellant

to come out of his home and into the driveway. Petitioner

complied. Shortly thereafter petitioner ran back into his

house, through the garage area and into his living quarters.

As petitioner ran back into his home, Sutherland first told him

he was under arrest. There was a struggle and petitioner was

handcuffed.

REASONS FOR GRANTING THE WRIT

This Court should grant the writ sought by Petitioner

Akins because the Minnesota Supreme Court, by adopting the

reasoning of the Minnesota Court of Appeals misapplied the

Fourth Amendment’s protection against unreasonable search

or seizures in the curtilage of a person’s home. This decision _

of the Minnesota Supreme Court is at odds with the

applicable decisions of this Court.

The Minnesota Court of Appeals’ decision is premised

on the incorrect conclusion that Petitioner Akins did not have

a reasonable expectation of privacy in a garage attached to his

home. In its decision, the Minnesota Court of Appeals

determined that state court decisions provide there is no

expectation of privacy, and consequently police do not violate

the Fourth Amendment by “going on to private property, to

investigate if they restrict their movements to places visitors

would be expected to go, such as walkways, driveways or

porches.” According to the Minnesota Court of Appeals,

these cases stand for the proposition that police should not be

prevented from entering areas used by social visitors. The

4

Minnesota Court of Appeals opinion then recognizes that

these decisions are “at odds” with the United States Supreme

Court. As the Minnesota Court of Appeals recognized, those

cases require a determination of whether an area is curtilage

and, if so, affords the same protections as a person’s home.

See Oliver v. United States, 466 U.S. 170, 180 (1984).

The Minnesota Court of Appeals then states, incorrectly,

that both analyses seek to determine whether a person has an

expectation of privacy and uses the same factors. The

Minnesota Court of Appeals, using the state court analysis,

ultimately concluded that Akins did not have a reasonable

expectation of privacy in his attached garage, because

members of the public would assume they could use it. This

conclusion is in conflict with established Supreme Court

precedent which would provide that Akins was entitled to the

same fourth amendment protection in his garage as he would

be in his home. Clearly an attached garage is within curtilage

for fourth amendment analysis, particularly when the officer

entered a garage door that had been temporarily opened by

the homeowner.

Even accepting the Minnesota Court of Appeals analysis,

that Court still reached the wrong conclusion. Under this

analysis, the Minnesota Court of Appeals concludes that

Akins did not have an expectation of privacy in a garage

attached to his house when the door is momentarily opened.

Using that analysis, a person who opens his garage door in

order to park his car and enter the living area of his home

Should expect members of the public to rush in under the

closing door uninvited. This clearly is not, nor should it be,

the state of the law.

The Supreme Court should grant review in order to

harmonize Minnesota law with established Supreme Court

precedent, and to determine whether a person has a

reasonable expectation of privacy after pulling a vehicle into

an attached garage.

The Minnesota Supreme Court’s decision also conflicts

with and improperly applies the law concerning when an:

officer has a sufficient basis to stop a driver based upon:

information from a private citizen. While information from

private citizens is generally presumed reliable, “[s]ome tips,

completely lacking in indicia of reliability, would -either

warrant no police response or require further investigation

before a forcible stop of a suspect would be authorized."

Adams _v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921,

1923-24 (1972).

The Minnesota Court of Appeals Opinion, as adopted by

the Minnesota Supreme Court, suggests that a citizen’s report

of erratic driving is sufficient to give an officer the lawful

right to stop a driver regardless of what the officer himself

sees.

The record in this case indicates that the officer did not

have sufficient information to stop petitioner based upon the

information from the private citizen and the officer’s

observations. The officer responded to a citizen report of an

erratic driver. The private citizen, Ms. Johnson, called 911

and described Petitioner’s driving and the location of his car.

Ms. Johnson did not see or describe any alcohol use by

Petitioner. It was apparently the 911 dispatcher, not the

citizen, who characterized the person as a “possibly impaired

driver.”

Upon receiving the call, Trooper Sutherland began

following Petitioner’s car. The officer did not observe any

erratic driving or traffic violations while he followed

Petitioner’s car. The only information the officer had

concerning Petitioner was from Ms. Johnson. Despite this

complete lack of verification of the caller’s information, the

officer activated his emergency lights and followed Petitioner.

On these facts, the information from the citizen caller,

combined with the officer’s observations, did not provide

specific and articulable suspicion of a criminal violation.

Although the information obtained by the officer may have

6

created the need for further investigation, once he

investigated further by following the car and seeing no

violation, he did not have a legal basis to stop Petitioner’s car.

A final reason for granting the writ is that the decision of

the Minnesota Supreme Court misapplied the due process

clause of the fourteenth amendment to the United States

Constitution by holding that forcing a person to relitigate an

issue that has already been conceded by the state on appeal in

an ancillary civil proceeding does not violate a person’s right

to due process. This Court has held that pursuant to the due

process clause, criminal prosecutions must comport with

prevailing notions of fundamental fairness. California v.

Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532 (1984).

The Petitioner’s Fourteenth Amendment right to due

Process has been violated because he has been forced to

litigate the identical issue twice: in the ancillary civil implied

consent hearing, and in the criminal case. In the implied

consent case, the trial court denied Petitioner’s motion to

suppress evidence. The Petitioner appealed this decision to

the Minnesota Court of Appeals. After Petitioner had filed

his civil appeal, the state decided not to pursue the appeal and

gave Petitioner everything he had requested in his Petition for

Judicial Review.

The state then forced the Petitioner to make the same

argument Concerning the stop and seizure that was previously

raised in the implied consent case and in Petitioner’s initial

civil appeal. The state forced the Petitioner to address this

issue again, even though the state previously conceded to all

of Petitioner’s demands by determining not to pursue the

appeal in the implied consent case. It is fundamentally unfair

to force Petitioner to retry this issue in the instant case, when

the State previously conceded the issue.

This second trial on the same issue this must be

considered a due process violation because the State’s action

are fundamentally unfair to the Petitioner. It is outrageous for

the state to force Petitioner to make the same arguments that

7

were previously conceded by the state in the implied consent

case.

l

CONCLUSION

For the reasons set forth above, a Writ of Certiorari

should be granted in this case.

Dated: July 25, 2000

Respectfully submitted,

BIRRELL, DUNLAP & RITTS, LTD

Andrew S. Birrell, (#133760)

Counsel of Record

R. Travis Snider, (#270842)

510 First Avenue North, Suite 500

Minneapolis, Minnesota 55403

(612) 871-7000

Attorneys for James Clifford Akins

INDEX TO THE APPENDIX

I. Order Opinion of the Minnesota Supreme Court

ee Ea A-1

II. Minnesota Court of Appeals Opinion

i A-2

Ill. Transcript of Trial Court’s Order........c.ccccccscoe-oe-....... A-11

A-i

STATE OF MINNESOTA

IN SUPREME COURT

C4-99-1066

State of Minnesota,

Respondent,

vs.

James Clifford Akins,

Petitioner.

ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition of James

Clifford Akins for further review be, and the same is, denied.

Dated: April 25, 2000

BY THE COURT:

/s/_

Kathleen A. Blatz

Chief Justice

This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

. STATE OF MINNESOTA

IN COURT OF APPEALS

C4-99-1066

State of Minnesota,

Respondent,

VS.

James Clifford Akins,

Appellant.

Filed March 14, 2000

Affirmed and remanded for sentencing

Lansing, Judge

Hennepin County District Court

File No. 98068700

Mike Hatch, Attorney General, 525 Park Street; Suite 500, St.

Paul, MN 55103 (for respondent)

James W. Delaplain, Lang, Pauly, Gregerson & Rosow, Ltd.,

1600 Park Building, 650 Third Avenue South, Minneapolis,

MN 55402 (for respondent)

Andrew S. Birrell, R. Travis Snider, Birrell, Dunlap & Ritts,

Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN

55403 (for appellant)

Considered and decided by Halbrooks, Presiding Judge,

Lansing, Judge, and Shumaker, Judge.

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UNPUBLISHED OPINION

LANSING, Judge ©

On stipulated evidence, following denial of a suppression

motion, the district court found James Akins guilty of gross

misdemeanor driving under the influence, careless driving,

and obstructing legal process. Akins appeals, arguing

primarily that the district court erroneously denied his

suppression motion and that therefore he is entitled to a new

trial. Because the record establishes no constitutional or

procedural error, we affirm.

FACTS

A Minnesota state trooper arrested James Akins after a

sequence of events triggered by a citizen’s 911 report of

dangerously erratic driving. The citizen, driving home from

work, reported by cell phone to a police dispatcher that a car

driving alternately very fast and very slow was swerving from

lane to lane in heavy traffic, only narrowly missing a median

barrier and, with flashers activated, was driving on the

shoulder of the road. The citizen later testified she thought the

driver might have been having a seizure.

At the dispatcher’s request, the citizen followed the car

and remained in phone contact with the dispatcher until a

state trooper, responding to the police dispatch, intercepted

the cars. The trooper, with his red lights activated, followed

the car for two blocks until it turned into a residential

driveway. The trooper saw an overhead garage door open and

the car pull into the garage.

The trooper drove into the driveway, parked behind the

car, and walked through the open overhead door into the

garage to ask the driver about his driving conduct. The

trooper asked for Akins’s license and, because he smelled the

odor of alcoholic beverages, asked Akins how much he had to

drink. Akins replied, “Too much,” and the trooper asked

A-3

Akins to walk with him back to the squad. Akins had

difficulty maintaining his balance as he followed the trooper.

As the trooper began to explain the field sobriety tests he

intended to conduct, Akins ran into the garage and toward a

door within the garage that led to the residence. The trooper

told Akins he was under arrest and ordered him to stop. The

trooper followed Akins and, after a short struggle inside the

house, subdued Akins and then transported him to the Eden

Prairie police station. Akins completed a chemical test that

disclosed a .24 blood-alcohol concentration.

The district court denied Akins’s motion to dismiss the

complaint and to suppress evidence obtained as a result of his

seizure and arrest. Akins appeals, contending that (1) the

trooper violated his Fourth Amendment rights by the

warrantless entry into his garage, (2) the trooper violated his

Fourth Amendment rights because the trooper did not have an

articulable basis to stop Akins’s car, and (3) the state violated

his due-process rights by forcing him to relitigate an issue

previously conceded by the state in the implied-consent

proceeding.

: | DECISION

I

When reviewing a search or seizure challenge under the

Fourth Amendment to the United States Constitution, the

reviewing court may independently analyze undisputed facts

to determine, as a matter of law, whether evidence resulting

from the search or seizure should be suppressed. State v.

Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). To claim the

protection of the Fourth Amendment, a defendant must

demonstrate that he personally has an expectation of privacy

in the place where the search or seizure occurred and that

society recognizes his expectation as reasonable. Minnesota

v. Carter, 525 U.S. 83, __, 119 S. Ct. 469, 473 (1998).

A-4

beer,

The Fourth Amendment protects against unreasonable

searches and seizures in a person’s home and its curtilage.

U.S. v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139 -

(1987). In determining whether an area is within the curtilage,

the Supreme Court considers four factors: (1) the proximity of

the area to the house; (2) whether the area is included within

an enclosure surrounding the home; (3) the nature of the uses

of the area; and (4) the steps taken by the resident to protect

the area from observation by people passing by. Jd. at 301,

107 S. Ct. at 1139. These four factors “bear upon whether an

individual reasonably may expect that the area in question

should be treated as the home itself.” Jd.

In two cases, Minnesota appellate courts have held that

curtilage includes the garage. State v. Crea, 305 Minn. 342,

345, 233 N.W.2d 736, 739 (1975); Tracht v. Comm'r of Pub.

Safety, 592 N.W.2d 863, 865 (Minn. App. 1999), review

denied (Minn. July 28, 1999). But in both Crea and Tracht,

the courts further hold that police did not violate the Fourth

Amendment when, for legitimate business reasons, they

entered areas of the curtilage that were impliedly open to the

public. Crea, 305 Minn. at 346, 233 N.W.2d at 739 (police

conducting an investigation may walk on the sidewalk and

onto porch of house and are free to make observations);

Tracht, 592 N.W.2d at 865 (police entry into open garage to

knock on residence door equivalent to entry into porch).

State courts interpreting the Fourth Amendment have

generally recognized that police do not violate the Fourth

Amendment by going on private property to investigate if

they restrict their movements to places visitors would be

expected to go, such as walkways, driveways, or porches. 1

Wayne R. LaFave, Search and Seizure § 2.3(f), at 507-08

(1996); see also State v. Ryea, 571 A.2d 674, 675 (Vt. 1990)

(curtilage providing normal access for visitors is not entitled

to absolute protection under Fourth Amendment); State v.

Seagull, 632 P.2d 44, 47 (Wash. 1981) (presence of officer

within curtilage is not per se Fourth Amendment violation);

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In re Gregory S., 169 Cal. Rptr. 540, 546 (Cal. App. 1980)

(no Fourth Amendment violation when officer enters area

where public is implicitly invited). The state court decisions

rely on the principle that police should not be prevented from

entering the areas used by social visitors in which people do

not usually have a reasonable expectation of privacy. See

People v. Thompson, 270 Cal. Rptr. 863, 873 (Cal. App. 2d

1990) (no reasonable expectation of privacy in areas where

public has been implicitly invited); Seagull, 632 P.2d at 47

(“[a]n officer is permitted the same license to intrude as a

reasonably respectful citizen”) (citation omitted).

The state court cases that suspend Fourth Amendment

protections in areas of curtilage used for public access appear

to be at odds with the Supreme Court’s curtilage analysis,

which inquires whether an area is within curtilage and, if so,

affords it the same protection as the house itself. See Oliver v.

United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 1742

(1984) (curtilage considered part of home for Fourth

Amendment purposes). But because both analyses ultimately

seek to determine whether a person has a_ reasonable

expectation of privacy in an area, the varying analytical

approach is not legally significant. The factors of the analysis

are the same; only the order in which the factors are applied

varies. Compare Dunn, 480 U.S. at 300, 107 S. Ct. at 1139

(determination of whether area is curtilage depends upon

reasonable expectations of privacy), with Thompson, 270 Cal.

Rptr. at 873 (determination of whether curtilage is protected

depends upon reasonable expectations of privacy).

Akins argues that the reasoning in Crea and Tracht does

not apply in this case because his garage is attached and

integrated into the architecture of his house in a way that the

garage in Crea and Tracht were not. We do not see an

adequate distinction between the Crea-Tracht facts and the

facts in this case to justify a different result.

In Crea, the garage was not attached to the house, but the

court also considered whether the police could look into a

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walk-in basement. 305 Minn. at 346, 233 N.W.2d at 740. The

police in Crea walked on the driveway and in other areas

within the curtilage. Jd. at 343-44, 233 N.W.2d at 738. The

Crea court focused on whether the police were entering into

areas of the curtilage “impliedly open to use by the public.”

Id, at 346, 233 N.W.2d at 739. In Tracht, the garage was

attached to the house and, like Akins’s garage, had a door

between the house and the garage. 592 N.W.2d at 865. And in

Tracht, as in this case, the garage had a large overhead door

that was open when the police entered. Jd. People’s

expectations for access areas of their premises commonly

differ from their expectations for more secluded areas. State

v. Corbett, 516 P.2d 487, 490 (Or. Ct. App. 1973). In the

course of urban life, members of the public, including

neighbors, friends, postal workers, newspaper deliverers, and

salespeople, commonly approach doorways that are the

obvious points to gain access to the living quarters. Jd

We conclude that Akins did not have a reasonable

expectation of privacy in the garage, with its overhead door

open, that would require the trooper to stop at its threshold

and obtain a warrant before questioning him. The garage may

not be the usual means of access to a home. But members f

the public would reasonably assume that they could use it,

when the overhead door was open, to talk to a resident who

himself is using the garage as a means of access. Police may

reasonably do the same. The holding of Tracht applies to the

facts of this case, and the trooper’s warrantless entry into the

garage did not violate Akins’s Fourth Amendment rights.

Parenthetically, we note that a number of jurisdictions

would find that the officer’s entry into the garage did not

violate the Fourth Amendment even if Akins had a reasonable

expectation of privacy in his garage. These jurisdictions hold

that police may enter a home to complete a lawful

investigative stop when the stop is initiated in a public place

but the suspect flees inside the home before the stop can be

completed. See Alto v. City of Chicago, 863 F. Supp. 658,

A-7

661-62 (N.D. Ill. 1994) (“an officer who stops a person

because of a reasonable, articulable suspicion of criminal

activity need not terminate the stop merely because the

suspect flees to his home”) (citations omitted); Harbin v. City

of Alexandria, 712 F. Supp. 67, 71-72 (E.D. Va. 1989) (Terry

stop need not end when suspect walks from porch into house),

aff'd, 908 F.2d 967 (4th Cir. 1990); People v. Riviera, 598

N.E.2d 423, 427 (Ill. App. 2d 1992) (police authorized to

make warrantless entry if they have lawful basis for stop and

suspect reacts by fleeing to a private sanctuary); Edwards v.

United States, 364 A.2d 1209, 1214 (D.C. 1976) (officers did

not violate Fourth Amendment by following suspects into

apartment to complete Terry stop initiated on the street), on

reh'g, 379 A.2d 976, 978 (D.C. 1977) (upholding entry on

probable cause grounds); cf United States v. Santana, 427

U.S. 38, 43, 96 S. Ct. 2406, 2410 (1976) (suspect may not

defeat arrest set in motion in public place by escaping into

private place).

This reading of the Fourth Amendment has, however,

elicited a substantive split of authority. See State v. Beavers,

859 P.2d 9, 17 (Utah Ct. App. 1993) (rejecting extension of

Terry doctrine as contrary to Fourth Amendment principles);

State v. Davis, 666 P.2d 802, 812 (Or. 1983) (declining to

hold that reasonable suspicion sufficient to support temporary

detention can support warrantless entry of premises). Because

we find that Akins did not have a reasonable expectation of

privacy in his open garage, we need not determine whether a

warrantless entry for the purpose of completing an

investigative stop that began in a public place is reasonable

under the Fourth Amendment.

Il

We reject Akins’s claim that the officer lacked an

articulable basis to stop his car. We note initially that it is not

a seizure for an officer to talk to a driver who is seated in a

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parked vehicle. State v. Vohnoutka, 292 N.W.2d 756, 757

(Minn. 1980). But even if an articulable basis were required

for the trooper’s approach or questioning of Akins, the record

amply supports the district court’s determination that the

citizen’s report provided a reasonable articulable basis for the

stop. See Marben v. State, Dept of Pub. Safety, 294 N.W.2d

697, 699 (Minn. 1980) (stop must be based on articulable

suspicion of traffic violation). |

The citizen who observed Akins’s driving identified

herself; told the dispatcher the make, model, and license

number of Akins’s car; and described Akins’s erratic driving

as she witnessed it. The dispatcher relayed the information to

the trooper who apprehended Akins. The citizen also testified

at the implied-consent hearing. These facts more than

sufficiently establish a reasonable articulable suspicion that

would justify a stop. See Marben, 294 N.W.2d at 699

(specific and articulable suspicion to justify a stop may be

provided by anonymous citizen’s tip when police verify that

tipper is in area and close to vehicle).

We also reject Akins’s claim that requiring him to

relitigate the same issues in this criminal proceeding that were

previously litigated in the implied-consent proceeding

violates due process and is fundamentally unfair. Essentially,

Akins is arguing for application of collateral estoppel.

Collateral estoppel does not apply, however, between civil

implied-consent cases and subsequent criminal cases because

the cases involve different parties with different interests. See

State, Dep’t of Pub. Safety v. House, 291 Minn. 424, 425, 192

N.W.2d 93, 94 (1971) (DWI proceedings and implied-consent

proceedings are separate actions involving separate parties);

State v. Juarez, 345 N.W.2d 801, 802-03 (Minn. App. 1984)

(noting that the State of Minnesota and the Commissioner of

Public Safety are neither the same parties nor parties in

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privity). Furthermore, the overlapping issues, although

dismissed prior to appeal, were decided against him in the

district court proceedings.

IV

Finally, we note that although the district court

determined Akins’s guilt, the court deferred sentencing until

conclusion of the appeal, and thus there has not been an

appealable final judgment. See Minn. R. Crim. P. 28.02, subd.

2(2) (defendant may not appeal until final judgment entered,

and judgment is final when sentence imposed or imposition

stayed). Despite the absence of a sentence, both parties have

proceeded in this appeal as if the court had not only

completed adjudication, but also sentencing. Consequently,

we have granted discretionary review under Minn. R. Crim.

P. 28.02, subd. 3, in the interest of justice that is obtained

through orderly and timely review. See State v. Soyke, 585

N.W.2d 418, 420 (Minn. App. 1998) (allowing discretionary

review when record fully developed and issue fully briefed).

Affirmed and remanded for sentencing.

s/ Harriet Lansing

March 6, 2000

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STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

State of Minnesota, )

Plaintiff,

vs. SIP No. 98068700

James Clifford Akins, GROSS MISDEMEANOR

Defendant.

The above-entitled matter came duly on for hearing

before The Honorable Philip D. Bush, one of the Judges of

the above-named Court, on June 22, 1999, in a courtroom at

the Hennepin County Government Center, in the City of

Minneapolis, State of Minnesota.

APPEARANCES

James W. Delaplain, Attorney at Law, appeared on

behalf of the City of Eden Prairie and the State of Minnesota.

Andrew Birrell, Attorney at Law, appeared on behalf of

the defendant.

The defendant appeared in person.

CLERK: Patti Martin

COURT REPORTER: Sandra K. Helget

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WHEREUPON, the following proceedings were duly had:

(1:37 p.m.)

THE COURT: _ This is State of Minnesota versus

James Clifford Akins, A-K-I-N-S. Court file is 98068700. If

counsel would note their appearances for the record.

MR. DELAPLAIN: Good afternoon, Your Honor,

James Delaplain for the City of Eden Prairie, State of

Minnesota.

MR. BIRRELL: Andy Birrell, B-I-R-R-E-L-L, for

Mr. Akins, who’s present before the Court.

THE COURT: The matter was on the tnal

calendar last week. The issue of probable cause to arrest and

suppression motions were filed with memorandum on both

sides. We took testimony last week, and there’s not a dispute

as to the facts, and the record establishes -- from the

_ testimony last week establishes pretty clearly the factual

history in this case where a citizen driver observed erratic

driving behavior on April 21st of 1998 and called in on a cell

phone, the police dispatcher, followed the vehicle until it was

intercepted by a State Highway Patrol. It was a known citizen

driver that was available to the police and actually,

parenthetically, testified at the hearing, and the driver stayed

in contact with the vehicle until it was a hand-off to the state

trooper and described the erratic driving behavior. Trooper

turned on his lights. The car went a couple more blocks and

pulled into the driveway and then the garage of his home. The

trooper went into the open door of the driveway -- into the

driveway and then into the open door of the garage, asked Mr.

Akins to come back to the car.

Mr. Akins did come back to the car after indicia of

alcohol were noticed by the trooper at that point. Mr. Akins

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then left and went into the house, was told to stop by the

officer. He did not stop. The state trooper pursued him into

the house, struggle ensued, and ultimately Mr. Akins was

arrested.

So the issues for the motion to suppress were, first, a

probable cause to stop, and then there was also probable

cause to enter the house or challenges to enter the house and

-- and then due process in terms of -- the third issue raised by

the defense was due process with respect to the implied

consent hearing, litigating duplicative issues, and I had

already ruled on the implied consent earlier.

It’s my -- I’ve read the case law that both sides had

submitted and first of all, with respect to whether there was

probable cause for the officer to stop and investigate further,

ity of Mint Vv which is found at 420

Northwest 2d, 887, a State of Minnesota Supreme Court

decision that analyzes the -- essentially the trio of cases up to

that point on probable cause to stop based on a tip from a

citizen, and it’s clear to me in reading the three cases that they

cite as well as the Shepherd analysis of those three cases that

there was probable cause for the officer to stop after receiving

the citizen call and being sure that he had the same car that

the citizen had called about. Even though he did not see any

erratic driving behavior on his own, there was a sufficient

basis to stop. As I told counsel in chambers, if the officer

turned on his lights or -- turned on his lights where he did and

if Mr. Akin had pulled over immediately to the curb right at

that point and then there was an arrest for drunk driving after

the requested field sobriety, et cetera, and other information

was gained, that would have been a valid stop and a valid

arrest, if it all occurred in a public place. Here it’s a known

informant who was available, clearly gave their name. Citizen

informants are presumed reliable, that there is a low threshold

for stopping a vehicle, it just cannot be on whim. Clearly it

was not on officer’s whim in this case but based on reliable

information.

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The offense, under the statute and the case law, does not

have to be committed in the officer’s presence for the traffic

stop. The only case where there was an oppression based on a

tipster within this group is Olson v. Commissioner of Public

Safety, a 1985 case where it was an unidentified person

saying it was somebody -- a particular car was probably a

drunk driver. Here substantially more than that. We had an

identified tipster with a lot more information, and it falls

much closer to Marda, Davis and the facts in Sheph sO

there was probable cause to stop the vehicle, whether it be on

the road or to follow the vehicle when it pulled into its

driveway and then into the garage.

The other question then is whether the officer could have

pursued into the house, and that -- probably the leading case

on that is the United States Supreme Court case United States

versus Santana, found at 96 Supreme Court 2406, a 1976

Minnesota -- United States Supreme Court case, and there the

Supreme Court concluded that, quote, “A suspect may not

defeat an arrest which has been set in motion in a public place

and which is therefore proper under Watson by the expedient

of escaping to a private place.” And that appears to be exactly

the circumstances here of going from a public place where the

officer had the authority to stop and investigate further and

not stopping for the officer and going into a private or

semi-private place in terms of a garage since it was open.”

I’m not -- we’re not on the identical facts of the recent

Court of Appeals decision in Tract versus Commissioner of

Public Safety, which came down on April 20th of 1999, was

an open garage that was generally open, the police came up

and walked in. Here the garage was opened, and it’s unclear

whether there was a general invitation for the public to come

into the garage or use it to go up to the door just as if it were a

front porch, but I don’t think that fact needs -- or that question

needs to be decided in this case because the officer had the

authority to pursue into that private space given the lawful

authority the officer had to stop Mr. Akins’ car.

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While in that space there was not a seizure. It was a

request for Mr. Akin to return -- or to come outside for further

investigation and testing. He complied with that. There was

not a seizure within -- even if it was a private space, there was

not a seizure or arrest within the private space. Mr. Akin

came outside. The officer further developed probable cause to

make an arrest for alcohol traffic, and then Mr. Akin fled into

the house. And the officer, while he was in a public place,

ordered him to stop, told him he was under arrest, and he was

fleeing, and clearly under the case law the officer had the

authority to pursue him back into the house to effectuate a

lawful arrest for which there was probable cause.

So on all bases the motion -- both requests for the motion

to suppress will be denied. Mr. Birrell --

MR. BIRRELL: Yes.

THE COURT: _ -- do you wanted to proceed?

MR. BIRRELL: Following up on our conversation

in chambers, it’s my understanding that we would be in

agreement about the procedure to be followed, which would

be that Mr. Akins would execute the necessary waivers so we

could try the case on stipulated facts to the Court. If there was

a finding of guilt, then a sentencing would be deferred so that

we could have the matter reviewed by the Court of Appeals.

And if that’s the understanding, I’m prepared to put the

waivers on the record.

THECOURT: And the facts that will be

stipulated to would be the facts as alleged in the complaint, is

that --

MR. BIRRELL: That would be all right--

THE COURT: _ -- your understanding?

A-15

MR. BIRRELL: -- Your Honor.

MR. DELAPLAIN: The city has no objection,

Your Honor.

THE COURT: Okay. I’m not -- on the table there

there sometimes is a stack of waiver -- jury trial waiver forms.

I don’t know if there’s one there or I need to get one from

Patti.

MR. BIRRELL: I don’t see one. I could do it on the

record if you want.

THE COURT: We can do it on the record. We

will get a form from Patti because the statute requires a

written waiver, but we certainly want to inquire.

MR. BIRRELL: I don’t see one, so why don’t we

just get the form.

THE COURT: Okay.

MR. BIRRELL: Can I have the case number?

THE COURT: Case number is 98068700.

MR. BIRRELL: Mr. Akins, have you been present

in court and heard the proposed procedural resolution of this

matter?

THE DEFENDANT: I have.

MR. BIRRELL: And you understand that you have

a right to have a trial by a jury in this matter?

A-16

THE DEFENDANT: Yes.

MR. BIRRELL: And that as part of our proposed

disposition you would be giving up your right to have a jury

trial?

THE DEFENDANT: Yes.

MR. BIRRELL: Okay. And at any trial you have

certain rights that I’m going to talk to you about. First of all,

you have the right to have witnesses come in and testify in

your presence. You understand that?

THE DEFENDANT: Yes.

MR. BIRRELL: You have the right’ to

cross-examine, which means ask questions of the witnesses

who testify in your presence. You understarid that?

THE DEFENDANT: Yes.

MR. BIRRELL: You have the right to require

anybody that you want to come in and testify to do that?

THE DEFENDANT: Yes.

MR. BIRRELL: You have the right to testify if you

want to; if you don’t want to, no one can make you, and no

one can say anything about that fact.

THE DEFENDANT: Yes.

MR. BIRRELL: Okay. You have the right to make

both an opening and closing argument or have me do that for

you.

A-17

THE DEFENDANT: Yes.

MR. BIRRELL: Okay.

THE DEFENDANT: Can we go off the record for

just one second and I ask a private question --

THE COURT: Sure, absolutely.

THE DEFENDANT: -- of my counsel?

(Discussion off the record from 1:50 to 1:51 p.m.)

MR. BIRRELL: You have -- have I answered your

question fully?

THE DEFENDANT: You have.

MR. BIRRELL: Do you have any other questions

that you want to ask me or His Honor, Judge Bush, about any

of your other rights?

THE DEFENDANT: No.

MR. BIRRELL: I’m showing you a document

entitled “Waiver of a Jury Trial.” There is a signature line

above the word “defendant.” Would you please sign that so

the Judge can see it?

THE DEFENDANT: Okay.

MR. BIRRELL: I would offer the written waiver of

jury trial along with the other waivers. :

THE COURT: I will approve the waiver of the

jury trial of this matter, and both sides agree that the trial will

A-18

be on the facts as alleged in the complaint except that count 1,

the enhanced gross misdemeanor, has been struck down as

unconstitutional, as an improper statute by the legislature

under the constitution, so there will be a trial on Counts 2, 3

and 4 for purposes of today’s hearing. Is that everybody’s

understanding?

MR. DELAPLAIN: That’s my understanding,

Your Honor.

MR. BIRRELL: Yes, it is, Your Honor.

THE COURT: I find there is proof beyond a

reasonable doubt with respect to all three counts that Mr.

Akins was operating a motor vehicle in the -- in Hennepin

County, in the Eden -- in the Eden Prairie community of

Hennepin County on April 21st of 1998 and that within two

hours of operating that vehicle there was a blood test -- an

alcohol testing result that showed a .24 blood alcohol

concentration, which is contrary to Minnesota Statute --

contrary to Minnesota Statutes.

I also find, given the allegations and the information in

the complaint, based on the civilian witness, there is sufficient

proof beyond a reasonable doubt of careless driving and,

based on the complaint, sufficient proof for obstructing legal

process as a gross misdemeanor, and it’s my understanding

the matter -- clearly the trial on stipulated facts was done to

allow an appeal.

Mr. Birrell, I’m -- since I am on the receiving and not on

the -- or my -- I receive cases from the trial calendar but I’m

done with them here, the time frame for filing the appeal is

what? Is it 30 or 60 on a criminal case at this point?

MR. BIRRELL: I believe it’s 90 days. I will file it

tomorrow.

THE COURT: All right. What I will do is defer

sentencing until an appeal is decided on this matter. Once an

appeal is either decided or if it is dismissed for some reason

or whenever the appeal process is closed, both parties should

notify my office within seven working days of the resolution

of the appeal. And if the appeal is successful by the defense,

then we will enter that into the court records and close the

case. If it is not successful, then a sentencing will be

scheduled.

Between now and sentencing, Mr. Akin, I’m not going to

require -- you’re going to remain out of custody. The

condition is that you have no drug- or alcohol-related traffic

offenses while this appeal and -- while we are awaiting the

sentencing on this matter. If there is an alcohol- or

drug-related traffic offense or a driver’s license violation,

operating a vehicle outside of the requirements or the

permission granted by the driver’s license, then the matter

will come back in front of me for sentencing and we are not

going to wait until the appeal is finished, but --

THE DEFENDANT: I understand.

THE COURT: -- the condition of no drug or alcohol

offenses and no driver’s license violations. I don’t know what

the status of your license is. If it’s valid, you can drive

anywhere --

THE DEFENDANT: It’s valid.

THE COURT: Okay. When you -- as long as it’s

valid and stays valid, you can drive anywhere under the terms

and conditions. If it’s not valid, then you can’t be driving, and

certainly you can’t be driving under the influence of alcohol.

THE DEFENDANT: Appreciate you doing this, and

I won’t embarrass you. You won’t see me back here.

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THE COURT: Okay. We will see you back --

THE DEFENDANT: Well --

THE COURT: Unless it’s necessary, unless it’s

necessary.

THE DEFENDANT: Yes.

THE COURT: All right, okay.

MR. BIRRELL: Thank you, Your Honor.

MR: DELAPLAIN: Thank you, Your Honor.

THE DEFENDANT: Thank you, Your Honor.

(Adjourned at 1:56 p.m.)

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