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State v. Sivertsen1/10/2001
MEMORANDUM OPINION AND JUDGMENT
[No. 4337 - January 10, 2001]
James D. Sivertsen was charged with Driving While Intoxicated (DWI) in violation of Ketchikan Municipal Code 10.40.030(a). Sivertsen moved to suppress evidence and dismiss the charge, claiming that he had been illegally seized. District Court Judge Patricia A. Collins granted Sivertsen's motion and dismissed the charge. For the reasons set forth below, we vacate the district court's order and remand for further proceedings.
Facts and Proceedings
On November 18, 1997, at approximately 3:30 p.m., teacher Connie Wingren called the Ketchikan Police Department. Wingren reported that James Sivertsen had alcohol on his breath when he picked up his child at school and drove away. Wingren described Sivertsen's vehicle, its license number, and Sivertsen's direction of travel.
Ketchikan Police Officer Tamara Steinbrecher drove to Sivertsen's home. Sivertsen's vehicle was parked in front of the residence. Steinbrecher noticed a small boy in the yard behind the residence's chain link fence and approached the gate. She then saw Sivertsen and told him that she wanted to speak to him, but Sivertsen told Steinbrecher "I don't want to talk to you" and walked inside with the boy. Steinbrecher apparently detected no signs of intoxication during this contact. Officer Joseph White arrived a few minutes later in another patrol vehicle.
Officers Steinbrecher and White remained outside the fence after Sivertsen went inside. Sivertsen's brother, John Sivertsen, came out of the house and spoke with Steinbrecher. Steinbrecher told John that she "needed" to talk to Sivertsen about the report she received from Wingren. According to John, Steinbrecher advised that if Sivertsen would not come out, she would obtain a search warrant for the residence and Sivertsen. John went back inside.
Shortly thereafter, Norman Sivertsen, another brother, came home. According to Norman, Steinbrecher told him "that she wanted to talk with Sivertsen, that Sivertsen would not come out of the house, and 'that I could go get a search warrant and go into the house and get him, if I have to.'" Norman went inside.
For her part, Officer Steinbrecher denied advising either brother that she would obtain a search warrant. She said she would not make such a threat without her supervisor's approval. Rather, Steinbrecher testified that she told both brothers she needed to talk to their brother about Wingren's report. She estimated that her conversations with Sivertsen's brothers lasted about twenty-five minutes. The conversations were not recorded although Steinbrecher had a recorder. Steinbrecher testified her recorder was of poor quality, generally picking up only her voice.
Sivertsen came out of the residence. According to Sivertsen, he only left the residence because his brothers advised him that the officer told them that if he would not come out, she would obtain a warrant.
Steinbrecher stood outside the fence and noted that Sivertsen exhibited signs of intoxication. She came in the gate and directed Sivertsen to perform field sobriety tests. Two more patrol cars arrived on the scene. At some point toward the end of or shortly after the field sobriety tests, Sivertsen said he wanted to return to his home. One of the officers told him that he could not leave.
Sivertsen had garbled speech, a sway to his balance, bloodshot watery eyes and an odor of intoxicants on his breath. Sivertsen submitted to a portable breath test which yielded a result of .159%. The police arrested Sivertsen for DWI at approximately 4:26 p.m. A little over an hour later, an Intoximeter 30
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