                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0556

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Garry Leroy Gehrke,
                                        Appellant.

                                   Filed May 11, 2015
                                        Affirmed
                                      Reyes, Judge

                               Scott County District Court
                                 File No. 70CR1215149

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Faison T. Sessoms, Jr., Minneapolis, Minnesota (for appellant)

       Considered and decided by Bjorkman, Presiding Judge; Hudson, Judge; and

Reyes, Judge.

                         UNPUBLISHED OPINION

REYES, Judge

       On appeal from his convictions of fourth-degree driving while intoxicated,

appellant argues that the district court erred in denying his motion to suppress because the

officer lacked probable cause to arrest appellant. We affirm.
                                         FACTS

       On July 23, 2012, at approximately 12:30 p.m., a 911 call was placed regarding a

potential burglary that had just occurred in New Prague. The caller, C.T., reported that

he was upstairs with his wife when his dog became agitated. About ten minutes later, he

heard the door to his home close. C.T. then ran to a window and observed a male

individual leave his residence and get into a green Subaru Forester. C.T. told the

dispatcher that he initially followed the Subaru in his own vehicle onto Highway 21 but

stopped following once the Subaru headed out of New Prague towards Jordan. C.T.

provided dispatch with the license-plate number, make and model of the vehicle, and a

description of the individual.

       Jordan Police Officer Jeffrey Strack was in the Jordan Police Department

headquarters when he heard New Prague officers receive a radio call regarding the

alleged interrupted burglary. Dispatch advised that there was a male in his fifties running

from the scene. Dispatch also provided the vehicle description and license-plate number,

which was then relayed to Officer Strack by New Prague officers who asked him to

watch for the suspect’s vehicle in Jordan.

       After receiving this information, Officer Strack noticed a green Subaru Forester

parked at Jack’s Bar located near the Jordan Police Department. Officer Strack saw that

the license-plate number matched the description provided to him by the New Prague

officers. He activated his emergency lights and parked his squad car directly behind the

Subaru. He then observed a single male occupant in the driver’s seat of the Subaru who




                                             2
matched the description of the burglary suspect provided by dispatch. The driver was

later identified as appellant Garry Leroy Gehrke.

         When Gehrke began to get out of the Subaru on his own, Officer Strack got out of

his squad car, pointed at Gehrke, and yelled at him to turn around and put his hands on

his head. Officer Strack testified that he had to do this three times before Gehrke

complied. Once Gehrke had done so, Officer Strack walked up to Gehrke and placed him

in handcuffs. As Officer Strack was escorting him back to the squad car, he detected an

odor of alcohol coming from Gehrke. When Officer Strack asked if he had been

drinking, Gehrke stated that he only had one beer. Officer Strack testified that

approximately 40-45 minutes had passed from the time he received the initial dispatch

call to the time he placed Gehrke in handcuffs.

         Officer Strack administered a horizontal gaze nystagmus (HGN) test once Gehrke

was placed in the back seat of his squad car. The HGN test revealed a lack of smooth

pursuit and maximum nystagmus deviation. Gehrke also failed a preliminary breath test.

Gehrke was transported to St. Francis Regional Medical Center where he agreed to

provide a urine sample. The sample was collected at 1:45 p.m. and revealed an alcohol

concentration of .11.

         Gehrke was charged with one count of misdemeanor fourth-degree driving while

impaired and one count of misdemeanor fourth-degree driving with an alcohol

concentration of .08 or more within two hours.1 Gehrke moved to suppress the evidence,

arguing that his arrest was made without sufficient probable cause. After a contested

1
    Gehrke was not charged with burglary.

                                             3
omnibus hearing, the district court denied his motion. To obtain review of the district

court’s order, Gehrke stipulated to the state’s evidence and acknowledged that the pretrial

issue—the legality of the arrest—was dispositive. See Minn. R. Crim. P. 26.01, subd. 4.

The district court then found Gehrke guilty on both counts. This appeal follows.

                                      DECISION

       “When reviewing a district court’s pretrial order on a motion to suppress evidence,

we review the district court’s factual findings under a clearly erroneous standard and the

district court’s legal determinations de novo.” State v. Gauster, 752 N.W.2d 496, 502

(Minn. 2008) (quotation omitted). We review reasonable suspicion and probable cause

determinations de novo. In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997). But

“[d]eference must be given to the district court’s credibility determinations.” State v.

Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012).

       “The United States and Minnesota Constitutions protect ‘the right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.’” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quoting U.S. Const.

amend. IV) (citing Minn. Const. art. I, § 10). The analysis of an investigative seizure

“involves a dual inquiry. First, we ask whether the stop was justified at its inception.

Second, we ask whether the actions of the police during the stop were reasonably related

to and justified by the circumstances that gave rise to the stop in the first place.” State v.

Askerooth, 681 N.W.2d 353, 364 (Minn. 2004) (citing Terry v. Ohio, 392 U.S. 1, 19-20,

88 S. Ct. 1868, 1879 (1968)) (other citations omitted).




                                               4
       Here, Gehrke concedes that Officer Strack had a reasonable, articulable suspicion

of criminal activity such that the initial stop was justified. However, Gehrke argues that

there was no probable cause to justify converting the initial stop into a full custodial

arrest. To resolve this issue, we must determine (1) at what point Gehrke was placed

under arrest and (2) whether the state possessed sufficient probable cause to justify such

an arrest.

I.     When the arrest occurred

       To decide whether an individual is under arrest, we “determin[e], objectively and

on the basis of the totality of the circumstances, whether a reasonable person in the

defendant’s shoes would have concluded that he or she was not free to leave.” In re

Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993). Gehrke contends that he was

under arrest the moment he was placed in handcuffs because, under the circumstances, a

reasonable person would not have felt free to leave. We agree. By the time Officer

Strack first noticed an indication of intoxication—the odor of alcohol—he had activated

his emergency lights and parked his marked squad car directly behind Gehrke’s Subaru,

preventing him from leaving. When Gehrke got out of the Subaru, Officer Strack ordered

him to turn around and place his hands on his head. Once Gehrke complied, Officer

Strack placed him in handcuffs and began walking him back to his squad car. The




                                              5
totality of these circumstances would lead a reasonable person to conclude that he was

under arrest and not free to leave.2 See id.

II.    Probable cause to arrest

       Having determined that Gehrke was under arrest, we next examine whether

Officer Strack possessed sufficient probable cause to justify the arrest. Importantly, we

note that because Officer Strack did not smell the odor of alcohol until after Gehrke was

arrested, any probable-cause determination could only be based on a suspicion that

Gehrke had committed the crime of burglary.

       In Minnesota, first-degree burglary occurs when a defendant “enters a building

without consent and with intent to commit a crime” and “the building is a dwelling and

another person . . . is present in it when the burglar enters.” Minn. Stat. § 609.582, subd.

1(a) (2010). First-degree burglary is a felony. See Minn. Stat. § 609.02, subd. 2 (2010)

(defining a felony as “a crime for which a sentence of imprisonment for more than one

year may be imposed”). Minnesota law allows for a warrantless arrest when a felony has

been committed and the officer has reasonable cause for believing the person arrested

committed it. Minn. Stat. § 629.34, subd. 1(c)(3) (2010). “The question of the legality of

2
  We recognize that the Minnesota Supreme Court has cautioned against automatically
equating the use of handcuffs with an arrest, stating that “briefly handcuffing a suspect
while the police sort out the scene of an investigation does not per se transform an
investigatory detention into an arrest.” State v. Munson, 594 N.W.2d 128, 137 (Minn.
1999). We note, however, that our conclusion that Gehrke was under arrest is not based
solely on the fact that he was handcuffed. Gehrke’s vehicle was blocked in by Officer
Strack’s squad car, and the squad car’s emergency lights were activated. Moreover, this
case is distinguishable from the facts of Munson, where the officer approached a vehicle
with multiple suspects and had to use handcuffs to “sort out the scene” of the
investigation. Id. at 137. No such “sort[ing] out” was required here as Gehrke was the
only suspect.

                                               6
the arrest turns not on the reasonableness or practicality of obtaining a warrant, but on the

reasonableness of the arrest.” State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997). “We

have held that ‘reasonable cause’ here and the ‘probable cause’ required by the Fourth

Amendment are synonymous.” State v. Sorenson, 270 Minn. 186, 196, 134 N.W.2d 115,

122 (1965). Probable cause exists “when a person of ordinary care and prudence,

viewing the totality of circumstances objectively, would entertain an honest and strong

suspicion that a specific individual has committed a crime.” State v. Ortega, 770 N.W.2d

145, 150 (Minn. 2009) (emphasis omitted). “Probable cause is something more than a

mere suspicion and something less than evidence that would sustain a conviction.” State

v. Evans, 373 N.W.2d 836, 838 (Minn. App. 1985), review denied (Minn. Nov. 1, 1985).

       Additionally, Minnesota has adopted the “collective knowledge” approach in

evaluating probable-cause determinations. See State v. Radil, 288 Minn. 279, 283, 179

N.W.2d 602, 605 (1970) (“In a metropolitan environment, with many police and fast-

moving criminal activities, it is unrealistic to demand that each officer in the department

personally know all the facts necessary to justify an arrest. The right to act must be

judged by the total knowledge of the police department.”). “Under the ‘collective

knowledge’ approach, the entire knowledge of the police force is pooled and imputed to

the arresting officer for the purpose of determining if sufficient probable cause exists for

an arrest.” State v. Conaway, 319 N.W.2d 35, 40 (Minn. 1982) (emphasis omitted).

Thus, at the time of the arrest, Officer Strack was imputed with all of the knowledge of

the police dispatcher.




                                              7
       The totality of the circumstances indicates that Officer Strack had “an honest and

strong suspicion” that Gehrke had committed the crime of burglary in the first degree.

See Ortega, 770 N.W.2d at 150. At the time of the arrest, Officer Strack knew that a

New Prague homeowner had witnessed an individual leaving his yard after his dog had

become agitated and after hearing his door close. Officer Strack knew that the individual

left the scene in a green Subaru Forester and drove down Highway 21 towards Jordan.

Officer Strack then observed a green Subaru Forester at Jack’s Bar in Jordan with

license-plate numbers matching those of the Subaru that left the scene in New Prague.

Officer Strack also saw that Gehrke matched the description of the individual at the

homeowner’s residence.3 Given these circumstances, we conclude that Officer Strack

had “an honest and strong suspicion” that Gehrke had committed first-degree burglary

and thus possessed the requisite probable cause to effectuate the arrest. See id.4

       Affirmed.




3
  Gehrke argues that, for all Officer Strack knew, Gehrke could have been a voter-
registration worker. This hypothesis is belied by the fact that Gehrke visited no other
houses in the area and instead traveled immediately onto Highway 21, which is behavior
inconsistent with a voter-registration worker.
4
  We note that it makes no difference that Gehrke was not eventually charged with
burglary. “The evidence necessary to support a finding of probable cause is significantly
less than that required to support a conviction.” State v. Harris, 589 N.W.2d 782, 790
(Minn. 1999).

                                             8
