State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1825

State of Minnesota,
Respondent,

vs.

Scott Lawrance Ziegler,
Appellant.

Filed September 3, 2019
Affirmed
Florey, Judge

Beltrami County District Court
File No. 04-CR-17-2056

Keith Ellison, Attorney General, St. Paul, Minnesota; and

David L. Hanson, Beltrami County Attorney, David P. Frank, Chief Assistant County
Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Win n, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Reyes, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant argues that he was arrested by Red Lake police officers and, because Red
Lake police officers are not “peace officers” under Minnesota law, the district court erred

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by failing to conclude that his arrest was unlawful. He maintains that, because his arrest
was unlawful, the evidence must be suppressed and his conviction vacated. We affirm.
FACTS
In the early morning hours of July 16, 2017, Red Lake Tribal Police Officer Matt
Smith (Officer Smith) received a report of a reckless driver within the Red Lake
Reservation. Officer Smith responded to the reported location and found a vehicle that had
driven off the road into a ditch near Ponemah. Officer Smith observed tracks showing
where the vehicle had driven off the road. The tracks indicated that, prior to landing in the
ditch, the vehicle had driven through several residential front yards.
Officer Smith approached the vehicle and made contact with the driver, appellant
Scott Lawrance Ziegler. A passenger, H.R., was in the vehicle with appellant. Upon
making contact with appellant, Officer Smith observed indicia of impairment. He could
smell alcohol coming from appellant’s breath, he observed that appellant’s pupils were
dilated and did not respond to light, and that appellant was having difficulty answering
Officer Smith’s questions. Appellant was unable to provide Officer Smith with a driver’s
license or other form of identification. At approximately 1:00 a.m., after appellant
provided Officer Smith with inconsistencies concerning his identity, the officer contac ted
the Beltrami County Police Department.
Officer Smith spoke with Beltrami County Sheriff’s Deputy Kyle Nohre (Deputy
Nohre). Officer Smith reported that two non-band members had been involved in a vehicle
accident, that the vehicle was in a ditch near Ponemah, and that he was having trouble
identifying the driver. Deputy Nohre conducted a n electronic search of the driver based

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on the information Officer Smith gave to him, and eventually identified the driver as
appellant. Deputy Nohre observed , based on photographs of appellant from an online
social media account, that “over time it appeared he had lost a large amount of weight and
his checks [sic] were sunken in his more recent photos.” Officer Smith advised Deputy
Nohre that appellant had denied us age of any controlled substances, that appellant had a
revoked driver’s license, and that he would be contacting Deputy Nohre again once he
determined how he was going to retrieve appellant’s vehicle from the ditch.
Appellant informed Officer Smith that he was unable to locate anyone to come assist
with retrieving his vehicle from the ditch and told the officer that he could not afford the
services of a towing company. Officer Smith contacted an on -call conservation officer
who had a four -wheel-drive truck and a tow strap to come help pull appellant’s vehicle
from the ditch. Approximately 30 minutes later, the conservation officer arrived at their
location. During the process of pulling appellant’s vehicle from the ditch, Officer Smith
observed alcohol in plain view in the vehicle. Officer Smith advised appellant that alcohol
was not permitted on the reservation.
Officer Smith contacted Deputy Nohre again. He informed Deputy Nohre that
appellant’s vehi cle was pulled out of the ditch and that appellant admitted to using
methamphetamine. Because, as he later testified, he felt that “[appellant] was a direct threat
to the safety of other people due to his impairment,” Officer Smith stated to Deputy Nohre
that he would escort appellant and the passenger to the reservation border.
H.R., who provided Officer Smith with a valid driver’s license, drove appellant’s
vehicle while appellant rode in the car as a passenger. They drove behind Officer Smith.

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Before reaching the reservation line, however, appellant’s vehicle ran out of gas. Officer
Smith called for another officer to assist him, parked his car behind appellant’s vehicle,
and activated the patrol car’s emergency lights while waiting for a tow t ruck to assist.
Officer Smith contacted Deputy Nohre again. He was advised by the deputy to transport
appellant and H.R. to the reservation line where Deputy Nohre could conduct a DWI
investigation.
Red Lake Tribal Police Officer Josh Wicker (Officer Wicker) responded to Officer
Smith’s call for assistance. With appellant in his squad car’s backseat, Officer Wicker
escorted him and H.R. to the reservation line. Appellant was informed that Beltrami
County Sheriff’s Department would be meeting him at the border. Deputy Nohre met
Officer Wicker at the reservation line and informed appellant that he wanted appellant to
perform field sobriety testing.
Appellant consented to the tests. After completion of the tests, and suspecting that
appellant had been d riving while impaired, Deputy Nohre arrested appellant and
transported him to the Beltrami County Jail where appellant was held pending charges and
retrieval of a blood-draw search warrant. The blood sample, taken pursuant to a judicially
authorized warrant and submitted to the Bureau of Criminal Apprehension, confirmed that
appellant had methamphetamine in his system. The Beltrami County Attorney’s Office
charged appellant with two criminal counts: (1) third-degree driving while impaired (DWI)
and (2) driving after revocation.
Appellant filed a suppression motion. He alleged that his arrest “was unlawful
because the Red Lake arresting peace officer was not a peace officer as defined” by statute.

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He, thereafter, filed an amended suppression motion, adding an additional allegation: that
Officer Smith “unlawfully expanded the duration and scope of the stop without
independent reasonable, articulable suspicion of illegal activity.”
A contested omnibus hearing was held on appellant’s motion. Officer Smith,
Deputy Nohre, and appellant all testified at the hearing. Officer Smith denied that his
actions amounted to an arrest. He testified that appellant “was being detained during [his]
investigation,” but that “[a]t no time did [he] place [appellant] i n handcuffs or place him
into a car.” Officer Smith testified that, after appellant’s vehicle ran out of gas while
driving toward the reservation line, appellant and H.R. “were then put into the back of a
squad car of their own free will because . . . they had no way to get a ride, they were not
placed under arrest and they were escorted to the line and given a ride by Officer Wicker.”
He testified, “They were, also, told they would have to deal with Beltrami County when
they got to the line because [of] their safety, we cannot just drop them at the line at 3:00 in
the morning.”
Deputy Nohre testified to his involvement in the incident. He testified that the
social-media photos he viewed of appellant while assisting Officer Smith in identifying the
suspect driver were “indicative of [a] person who uses methamphetamine.” He testified
that appellant admitted to using, two days prior to the incident, methamphetamine, that he
conducted field sobriety tests as part of his DWI investigation, and that he, ultim ately,
arrested appellant on suspicion of driving while impaired.
Appellant testified that, upon being placed in the Red Lake tribal officer ’s patrol
car, he did not feel free to leave. He testified that, after his “car ran out of gas on a dirt

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road,” Off icer Smith instructed him “to get in the back of the [squad] car.” Appellant
explained, “[H]e was bringing me to the line. He was escorting me to the line. I wasn’t
allowed to get out. I don’t know.” He testified that, once they arrived at the reservation
line, he waited in the vehicle for a “couple of minutes . . . just until the other officer showed
up.” He affirmed that Red Lake officers had not placed him in handcuffs and conceded to
having, at the time of the incident, methamphetamine in his syst em. The district court
denied appellant’s motion in its entirety, finding that “there was not an arrest here by Red
Lake Officers.”
Appellant waived his right to a jury trial, stipulated to the state’s evidence, and
agreed that his right to appeal would be limited to the district court’s ruling on the pretrial
suppression motion and that the pretrial motion was dispositive of the case. See Minn. R.
Crim. P. 26.01, subd. 4. The district court found appellant guilty of driving while impaired
and driving after revocation. This appeal follows.1
D E C I S I O N
Appellant argues that, because the conduct of the Red Lake tribal police officers
amounted to an unlawful arrest, it was error for the district court to deny his suppression
motion.

1 Pending this appeal, we issued a published decision in a case with a similar issue, holding
that the Red Lake tribal police officer did not unlawfully detain or arrest the defendant.
See State v. Thompson, 929 N.W.2d 21 , 34 (Minn. App. 2019), reviewed granted (Minn.
Aug. 6, 2019). Generally, we follow the rule of law articulated in a published opinion,
even one subject to further review, until the Minnesota Supreme Court announces a
different rule of law.

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“When reviewing pretrial orders on motions to suppress evidenc e, we review the
district court’s factual findings under a clearly erroneous standard and the district court’ s
legal determinations de novo.” State v. Jordan , 742 N.W.2d 149, 152 (Minn. 2007).
Because appella nt stipulated to the prosecution’s evidence pursuant to rule 26.01,
subdivision 4, “our review is further limited to the pretrial order that denied [appellant’s]
motion to suppress.” State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009).
Under section 169A.4 0 of Minnesota’s impaired-driving code, a “peace officer”
may arrest a person if there is probable cause that the person has committed a DWI offense.
Minn. Stat. § 169A.40, subd. 1 (2018). “Peace officer” is defined as:
(1) a State Patrol officer;
(2) University of Minnesota peace officer;
(3) police officer of any municipality, including towns
having powers under section 368.01, or county; and
(4) for purposes of violations of this chapter in or on an off-
road recreational vehicle or motorboat, or for violations
of se ction 97B.065 or 97B.066, a state conservation
officer.

Minn. Stat. § 169A.03, subd. 18 (2018).
Generally, tribal governments “lack criminal jurisdiction over non -Indians who
commit crimes in Indian country.” United State v. Bryant , 136 S. Ct. 1954, 1960 n.4
(2016). “Thus, Indian tribes may not prosecute a non -Indian for a violation of the tribe’s
criminal code that is committed on the tribe’s reservation if the victim of the crime is a
non-Indian or if the crime is a victimless crime.” Thompson, 929 N.W.2d at 30-31.
The state does not suggest that the Red Lake tribal police officers are “peace
officers” for purposes of the impaired -driving code. Nor does the state suggest that the

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Red Lake tribal police officers had any other authority to arrest appellant. Rather, the state
maintains that the interactions between the tribal police officers and appellant did not
amount to an arrest.
Not all interactions between police officers and citizens constitute an arrest. See
State v. Harris , 590 N.W.2d 90, 98 (Minn. 1999). “A law-enforcement officer typically
makes an arrest by expressly informing a person that he or she is being arrested.”
Thompson, 929 N.W.2d at 27 n.1 . But, Minnesota caselaw recognizes that a “de facto
arrest” may have occurred in circumstances where, despite not being formally arrested, a
reasonable person would not have felt free to leave. Id.; see also State v. Blacksten , 507
N.W.2d 842, 847 (Minn. 1993) (“Respondent was de facto under ar rest from the time he
was ordered to the ground at gunpoint, handcuffed, and placed in the squad car.”).
However, a temporary detainment wherein a person is not free to leave during the
period of detention “does not convert the detention into an arrest.” State v. Moffatt, 450
N.W.2d 116, 120 (Minn. 1990). Indeed, the two-part de facto arrest test “recognizes that,
in some situations, a suspect who is not under arrest may not be free to leave because he is
in investigative detention, in which case an offi cer may c ontinue to detain him for a
reasonable period of time.” Thompson, 929 N.W.2d at 27 n.1.
As we have explained before, the United States Supreme Court has “recognized a
tribal police officer’s authority to detain a person suspected of violating a state criminal
law and to deliver the person to state law -enforcement authorities.” Id. at 32. In Duro v.
Reina, 495 U.S. 676, 697, 110 S. Ct. 2053, 2065-66 (1990), the Supreme Court articulated:

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Tribal law enforcement authorities have the power to restr ain
those who disturb public order on the reservation, and i f
necessary, to eject them. Where jurisdiction to try and punish
an offender rests outside the tribe, tribal officers may exercise
their power to detain the offender and transport him to the
proper authorities.

Citing to Duro, we explained in Thompson that “ Indian tribes have inherent
authority to expel a non -member who is suspected of criminal activity from the tribe’s
reservation by detaining and delivering the non -member to a non-Indian law-enforcement
agency.” 929 N.W.2d at 23-24.
In the case before us, the district court found in its pretrial order denying appellant’s
suppression motion that “[n]either Officer Smith nor Officer Wicker arrested [appellant]
at any time.” On appeal, appellant argues that the district court’s finding was error
“because the conduct of Officers Smith and Wicker constitute[d] a constructive —or de
facto—arrest.” He contends that the following circumstances demonstrated that the Red
Lake tribal officers placed him under arrest: he “was locked inside Officer Wicker’s patrol
car so that he could not get out”; he was detained in Officer Wicker’s “patrol car until
Deputy Nohre arrived”; his testimony at the motion hearing established “that he did not
feel free to leave”; and “Officers Smith and Wicker did not simply detain [a]ppella nt and
hand him over to the proper authorities. Rather, they conducted an investigation at Deputy
Nohre’s direction, independently determined that [a]ppellant drove while impaired, took
[a]ppellant into custody, and then held him in custody until Deputy Nohre arrived.”
The district court did not err by finding that the tribal officers’ interaction with
appellant did not amount to an arrest. The evidence establishes that the Red Lake officers

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never placed appellant into handcuffs, they never administered field sobriety tests or
preliminary breath tests (PBTs), appellant was placed in the back of Officer Wicker’s squad
car for the sole purpose of transporting him to the reservation border (after his own vehicle
ran out of gas while he was riding in it), appellant was briefly detained in Officer Wicker’s
squad car to ensure his safety and the safety of the tribal community until Deputy Nohre
arrived, and during this brief detention, there is no evidence that the officers interrogated,
or even questioned, app ellant. Appellant’s contention that the officers “independently
determined that [a]ppellant drove while impaired” is a misstatement of the evidence. The
evidence demonstrates that, other than observing that appellant’s eyes were watery, and
asking whether appellant had consumed any alcohol or controlled substances, the officers
never “determined” that he was impaired. Appellant does not dispute that it was, in fact,
Deputy Nohre who administered the field sobriety tests and the PBT.
The conduct of Officers Smith and Wicker amounted to nothing more than a brief,
temporary detention of appellant. The detainment was based on Officer Smith’s
observation that appellant was disturbing public order on the reservation and his reasonable
belief that appellant “was a direct threat to the safety of other people due to his
impairment.” Pursuant to Duro and Thompson, the officers were permitted to temporarily
detain appellant and deliver him to the proper agency with juris diction over his actions.
See Duro, 495 U.S. at 697, 110 S. Ct. at 2065-66; Thompson, 929 N.W.2d at 23-24. The
officers’ conduct was reasonable and did not amount to an arrest. See, e.g., Moffatt, 450

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N.W.2d at 120; Thompson, 929 N.W.2d at 27 n.1. The district court properly dismissed in
its entirety appellant’s suppression motion.
Affirmed.