City of Bismarck v. Brekhus

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The City of Bismarck appealed a district court’s suppression order. In December 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. The police officer followed the vehicle, and activated his overhead lights, but the driver, defendant Deanne Brekhus, did not stop. 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. 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 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 City ultimately 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 North Dakota Constitution were violated when the police entered her garage and searched her vehicle. She also contended her statutory right to consult counsel before chemical testing was violated. The City opposed both motions. The district court granted Brekhus's motion to suppress the basis of the police officer's initial entry into the open, detached garage without a warrant or an exception to the warrant requirement. The North Dakota Supreme Court concluded the police officer's warrantless limited entry into her open garage while in "hot pursuit" did not violate Brekhus’ Constitutional rights under the federal or North Dakota Constitutions. The matter was remanded for further proceedings. View "City of Bismarck v. Brekhus" on Justia Law