State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0699

State of Minnesota,
Appellant,

vs.

Aleksandr Viktorovich Lelyukh,
Respondent.

Filed December 13, 2021
Affirmed
Gaïtas, Judge
Dissenting, Ross, Judge

Scott County District Court
File No. 70-CR-20-10121

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistan t County Attorney,
Shakopee, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

Considered and decided by Gaïtas, Presid ing Judge; Ross, Judge; and Reilly, Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant State of Minnesota appeals the di strict court’s pretrial order suppressing
the evidence resulting from a police officer’s contact with respondent Aleksandr
Viktorovich Lelyukh. We affirm.

2
FACTS
In July 2020, a priv ate citizen contacted the Prior Lake police to report a concern
about a particular car observed in a regional park. The citizen alleged that the car had sped
recklessly into the parking lot and stopped; that two men were in the car; and that “several
beer cans fell out of the car.” When a police officer arrived at the park, the citizen provided
the officer with a photo of th e car. The car’s license plate was visible in the photo. A
records search showed that the car was registered to Lelyukh, who resided in Prior Lake.
The officer drove by Lelyukh’s home fifteen minutes later, but the car was not there.
Still hoping to locate the car, the officer contacted Mystic Lake Casino Surveillance, which
had an automated license plate reader (ALPR ). The officer provid ed the license plate
number and asked whether the ALPR had s potted the car on casino property. Casino
surveillance confirmed that the ALPR had located the car on casino property twenty
minutes earlier, but it had since left.
Shortly thereafter, casino surveillance co ntacted the officer and provided updated
information about the car’s location and direction of travel. Based on that information, the
officer found the car parked at a convenience store and made contact with Lelyukh.
Following additional investigation, the o fficer arrested Lelyuk h for driving while
impaired. Lelyukh was subsequently charged with second-degree driving while impaired
(DWI), Minn. Stat. § 169A.20, subd. 2(1) (2018 ) (refusal to submit to chemical testing),
third-degree DWI, Minn. Stat. § 169A.20, su bd. 1(1) (2018) (operating a motor vehicle
under the influence of alcohol), and violating the open bottle law, Minn. Stat. § 169A.35,
subd. 3 (2018).
3
Lelyukh moved to suppress the evidence, arguing that the officer’s warrantless use
of the ALPR to track his location violated Minnesota Statutes section 13.824, subdivision
2(d) (2020), making his stop unlawful. Section 13.824, subdivision 2(d), provides:
Automated license plate readers must not be used to monitor
or track an individual who is th e subject of an active criminal
investigation unless authorized by a warrant, issued upon
probable cause, or exigent circumstances justify the use
without obtaining a warrant.

The parties assumed that sec tion 13.824, subdivision 2(d), a pplied to the circumstances
presented. And they stipulated that the district court would consider the suppression
motion based solely on the police reports re garding the officer’s investigation and
Lelyukh’s arrest.
The district court granted Lelyukh’s motion, concluding that the state “failed to meet
its burden [of] showing sufficient exigency to justify the warrantless use of the license plate
reader.” Because “the use of the license pl ate reader was prohibited,” the district court
suppressed “all evidence gathered as a result of its use.”
The state appeals.
DECISION
Relying on section 13.824, subdivision 2(d), the district court suppressed all
evidence resulting from an officer’s warrantless use of an ALPR to track Lelyukh’s car
while investigating suspected dr unk driving. On appeal, the state argues that the district
court’s factual findings were clearly erroneous, that the district court erred as a matter of
law in determining there were no exigent circumstances, and that the district court should
not have suppressed the evidence based solely on a violation of the statute. We conclude
4
that the challenged factual findings were err oneous but, because they had no relevance to
the district court’s legal determinations, we do not reverse on that ground. And because
we conclude that there were not exigent circumstances and the state forfeited its argument
regarding the appropriate remedy for a viola tion of section 13.824, subdivision 2(d), we
affirm.
I. The district court’s order suppressing the evidence critically impacts the state’s
ability to prosecute Lelyukh.

When the state challenges a pretrial order on appeal, the state must first show “how
the district court’s alleged error, unless reversed, will have a critical impact on the outcome
of the trial.” Minn. R. Crim. P. 28.04, subd. 2(2)(b). The reviewing court considers critical
impact as a threshold issue befo re turning to the merits of th e state’s allegation of error.
State v. Osorio, 891 N.W.2d 620, 627 (Minn. 2017). If the “lack of suppressed evidence
significantly reduces the likelihood of a succe ssful prosecution,” the district court’s order
critically impacts th e state’s case. State v. Joon Kyu Kim , 398 N.W.2d 544, 551 (Minn.
1987).
The state contends that the district court’s decision to suppress all evidence resulting
from the ALPR—which was the officer’s me thod for locating Le lyukh—will cause the
state’s case to “simply collapse.” Lelyukh c oncedes that the state “satisfies the critical
impact requirement.” We ag ree that the state cannot pros ecute Lelyukh for the charged
offenses if the evidence resulting from the investigation is suppressed. We therefore move
on to consider the merits of the state’s appeal. See State v. Lugo, 887 N.W.2d 476, 481-87
5
(Minn. 2016) (noting that an appellate court can consider the merits of the state’s pretrial
appeal if the state establishes critical impact).
II. The state failed to provide sufficien t evidence of exigent circumstances.

Because the parties apparently agree that section 13.824, subdivision 2(d), applies
to the officer’s conduct, and the district court likewise relie d on the statute, we assume
without deciding that the stat ute applies here. Section 13.824 (2020) is included in the
Minnesota Government Data Practices Act (MGDPA), Minn. Stat. §§ 13.01-.90 (2020).
Enacted in 2015, section 13.824 is included among other MGDPA statutes governing law
enforcement, judicial, corrections, and criminal justice data. The statute defines an ALPR
as
an electronic device mounted on a law enforcement vehicle or
positioned in a stationary location that is capable of recording
data on, or taking a photograph of, a vehicle or its license plate
and comparing the collected data and photographs to existing
law enforcement databases fo r investigative purposes.
Automated license plate reader includes a device that is owned
or operated by a person who is not a government entity to the
extent that data collected by th e reader are shar ed with a law
enforcement agency.

Minn. Stat. § 13.824, subd. 1.
Law enforcement agencies and private corporations are increasingly “using license
plate reader technology, in which cameras take photographs of license plates, recognition
software creates a record of the plate number, and a computer automatically compares the
license plate number against a database of lic ense plates.” 32 A.L. R.7th Art. 8 (2017).
Section 13.824 prov ides comprehensive instructions to government entities—and non-
6
government actors who share information with law enforcement agencies—for collecting,
logging, storing, sharing, auditing, and destroying data collected by ALPRs.
Section 13.824 also includes restrictions on the use of such data. Subdivision 2(d)—
the relevant statutory provision here—prohibits the use of this tech nology “to monitor or
track an individual who is the subject of an active criminal investigation unless authorized
by a warrant, issued upon probable cause, or exigent circumstances justify the use without
obtaining a warrant.” Minn. Stat. § 13.824, subd. 2(d). Here, the district court determined
that the police officer violated this sect ion by using an ALPR to track Lelyukh’s
whereabouts during an active criminal investigation without first obtaining a warrant, and
in the absence of exigent circumstances.1
The parties have consistently grafte d the definitions and standards from
constitutional criminal law onto the technical te rms used in the statute—“warrant, issued
upon probable cause” and “exi gent circumstances.” With out explicitly addressing the
meaning of the statute, the district court likewise applied constitutional criminal law
concepts in deciding Lelyukh’s motion. Beca use “warrant, issued u pon probable cause”
and “exigent circumstances” are technical te rms that have long-accepted meanings in
constitutional criminal law, we also apply those meanings in our analysis. See Minn. Stat.
§ 645.08(1) (2020) (stating that courts should construe “technical words and phrases and
such others as have acquired a special meaning . . . according to such special meaning or
their definition”); Cox v. Mid-Minn. Mut. Ins. Co., 909 N.W.2d 540, 543 (Minn. 2018) (“A

1 The record indicates that th e ALPR was operated by Mystic Lake Casino, but that data
from the ALPR was shared with the officer upon her request.
7
word has a special meaning if courts have ascribed a well-established and long-accepted
meaning to it.” (quotation omitted)).
The officer did not obtain a warrant before requestin g and relying on the ALPR
information used to locate Lely ukh. Thus, the sole question before us is whether there
were exigent circumstances.
Exigent circumstances provide an ex ception to the constitutional warrant
requirement; the presence of exigent circumstances may justify a law enforcement officer’s
warrantless entry of a home, warrantless search, or warrantless seizure. See State v.
Othoudt, 482 N.W.2d 222 (Minn. 1992) (providing that exigent circumstances can justify
a warrantless entry and search of a person’s home); see also State v. Horst , 880 N.W.2d
24, 34 (Minn. 2016) (concluding that exig ent circumstances jus tified the warrantless
seizure of the defendant’s cell phone). Simply put, exigent circumstances exist when “there
is a compelling need for official action and no time to secure a warrant.” State v. Stavish,
868 N.W.2d 670, 675 (Minn. 2015) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)).
The state has the burden of proving the existence of exigent circumstances. State v. Gray,
456 N.W.2d 251, 256 (Minn. 1990).
The United States Supreme Court has iden tified several “categorical” exigencies,
where the presence of a single factor alone pr ovides justification fo r an officer to act
without a warrant. See Lange v. California , 141 S. Ct. 2011, 2017 (2021). Those
situations—which primarily in volve an officer’s authority to enter a build ing without a
warrant—include hot pursuit of a fleeing fel on, preventing the immi nent destruction of
8
evidence, preventing a suspect from escaping, providi ng emergency aid to an injured
person, or protecting an occupant from imminent injury. See id.
Most cases do not involve a categorical exigency, however, and must be evaluated
based on the totality of the circumstances. See id. at 2018. “Whether a ‘now or never
situation’ actually exists—whether an officer has ‘no time to secure a warrant’—depends
upon the facts on the ground.” Id. (quoting Riley v. California, 573 U.S. 373, 391 (2014)).
For example, the Supreme Court has held that the dissipation of alcohol in the body is not
a categorical exigency allowing police to obtain a warrantless blood sample from every
suspected drunk driver. Missouri v. McNeely , 569 U.S. 141, 164 (2013). Rather, to
determine whether there are ex igencies justifying a warrantless blood draw, a court must
consider the totality of the circumstances in each individual case, including whether the
officer reasonably could have obtained a warrant. Id. at 152-53. Other considerations
bearing on the exigency analysis include whether the offense at issue is “grave or violent,”
whether the suspect is reasonably believed to be armed, whether there is strong probable
cause connecting the suspect to an offense, wh ether there is strong reason to believe the
suspect is present in the place to be searched, and whether the suspect is likely to escape.
Gray, 456 N.W.2d at 256.
The state makes two challenges to the district court’s determination that it “failed to
meet its burden [by] showing sufficient ex igency to justify the warrantless use of the
[ALPR].” First, the state argues that the district court’s factual findings were wrong. And
second, the state contends that the district court’s conclusion was legally incorrect.
9
In reviewing an order on a motion to suppress evidence, the appellate court reviews
the district court’s factual findings for clear error. Stavish, 868 N.W.2d at 677. But the
district court’s legal conclusions, including the “ultimate determination of exigency,” are
reviewed de novo. Id.
At the outset, we consider the state’s ar gument that the district court’s factual
findings were incorrect. The st ate identifies three findings th at are not supported by the
stipulated record: casino surveillance reporte d that the car “had be en on the property at
approximately 7:24 p.m.”; casino surveillance reported that the car was “currently at a
convenience store on casino property”; and Le lyukh was the “sole occupant” of the car
when it was found at the convenience store. Based on our review of the stipulated record,
we agree that these three findings, which are not based on facts in that record, are clearly
erroneous. See In re Commitment of Kenney , 963 N.W.2d 214, 221 (Minn. 2021)
(explaining that factual findings are clearly erroneous when they are not supported by the
evidence). In fact, as the state notes, the stipulated re cord shows that casino surveillance
reported that the car had been on the propert y at 7:08 p.m., not 7:24 p.m. Moreover, it
shows that casino surveillance did not direct the officer to the convenience store. Rather,
the officer located the car at the convenience store at 7:38 p.m. after casino surveillance
reported its last-known whereabouts and direction of travel at 7:35 p.m. And the stipulated
record shows that Lelyukh was outside of the car when the officer first encountered him
and that another individual was seated on the passenger side.
The state argues these findings require reversal of the district court’s order because
they affected the analysis regarding the presen ce of exigent circumstances. We disagree.
10
Each of the clearly erroneous factual findings concern the timing and details of events that
occurred after the officer first used th e ALPR to find Lelyukh’s car. Consequently, they
are not part of the circumstan ces that the district court wa s required to assess in deciding
whether there was an exigency before the officer requested th e ALPR data without a
warrant. We therefore reject the state’s re quest to reverse based on erroneous factual
findings that are unrelated to the legal question decided.
The state does not challenge any of the district court’s factual findings regarding the
events that occurred before th e officer’s request for the ALPR data. Those facts are as
follows. A private citizen repor ted that he saw a car occupi ed by two men drive into a
regional park at a high rate of speed. Accord ing to the citizen, he saw several beer cans
fall out of the car. The citizen took a photo of the car’s licen se plate. Records indicated
that the car was registered to Lelyukh. When officers res ponded to Lelyukh’s home, the
car was not there. Based on these facts, we turn to the next issue before us—whether, with
these facts, the state satisfied its burden of proving exigent circumstances.
The state first urges us to conclude that these facts established a single-factor
exigency. Specifically, the st ate argues that “[s]topping a drunk driver satisfies the
protection-of-human-life exigency.” The state alleges that the officer “was trying to stop
a drunk driver in real-time, before the driver killed or maimed somebody and added to the
slaughter on our highways.”
The protection of human life may be an exigency that justifies police action during
an emergency. See State v. Lemieux, 726 N.W.2d 783, 787-88 (Minn. 2007); see also Ries
v. State, 920 N.W.2d 620, 633-34 (Minn. 2018). Police may act without a warrant in an
11
emergency if they have an objective, reasonable basis for believing there is a “need to assist
persons who are seriously injured or threatened with such injury.” Brigham City v. Stuart, 547 U.S. 398, 403-06 (2006). In Stuart, for example, officers had a reasonable basis for
believing an emergency was ongoing when th ey entered a home w ithout a warrant upon
observing through the window a violent fight between several adults and a juvenile. Id. at
405-06. Similarly, where police learned of an active burglary near th e site of a recent
murder, and had evidence the murderer was th e burglar, they had an objective basis for
believing an emergency was on going and legally entered th e home without a warrant.
Lemieux, 726 N.W.2d at 789-90.
We have also held that an imminent act endangering human life may provide a
single-factor exigency. In State v. Miranda , we concluded that a single-factor exigency
justified a police officer’s warrantless entry of a home where the suspect had threatened to
burn down the home, the officer observed gasoline on the floor of the home, and the suspect
was brandishing a lighter. 622 N.W.2d 353, 357 (Minn. App. 2001).
Here, however, we do not reach the issue of whether stopping a drunk driver in real
time is a single-factor exigency because the facts do not pres ent that issue. The limited
information that the officer had did not esta blish an objectively re asonable belief of an
ongoing or imminent emergency. Although the statements of the witness may have created
some suspicion of drunk drivin g, that was all they estab lished—a possibility. In this
respect, the circumstances here are similar to those in In re Welfare of B.R.K. , where the
Minnesota Supreme Court concluded that a “ possibility of danger to human life” did not
create a single-factor exigency. 658 N.W.2d 565, 579 (Minn. 2003). There, an officer
12
entered a home where he knew there were guns and had a reasonable suspicion that
teenagers were drinking alcohol inside. Id. Here, as in B.R.K., where the officer knew of
some facts suggesting a possibility of dange r, there was insufficient information to
establish a single-factor exigency based on the protection of human life.
Alternatively, the state asks us to conclu de that there were exigent circumstances
under the totality-of-the-circumstances approach . It argues that DWI is a grave offense
due to its inherent danger. Additionally, the state contends that there was strong probable
cause connecting Lelyukh to the crime and the privacy right at issue “was small” compared
to a law enforcement officer’s entry of a home.
We agree with the state that impaired driving can be a grave offense. See State v.
Johnson, 689 N.W.2d 247, 252 (Minn. App. 2004) (determining that criminal vehicular
homicide is a grave or violent offense), rev. denied (Minn. Jan. 20, 2005). Unfortunately,
it is common knowledge that drunk driving endangers human life. But “[t]he seriousness
of the offense does not itself create exigency, and does not reduce the quantum of evidence
that the State must present to prove exigent circumstances.” Stavish, 868 N.W.2d at 680
(citation omitted).
Given the totality of the circumstances here , we cannot conclude that the state’s
evidence satisfied its burden. Notwithstanding the state’s assertion, the limited facts before
the officer did not create “strong probable cause” that Lelyukh was driving while impaired.
See State v. Koppi, 798 N.W.2d 358, 363 (Minn. 2011) (noting that probable cause exists
when the totality of the circumst ances allows an officer to en tertain an honest and strong
suspicion that a person has committed the crime). As noted , the officer acted on nothing
13
more than a suspicion. She did not know whether the driver had been drinking at all,
whether the beer cans that fell from the car were open, or whether the beer cans were
anywhere near the driver’s side of the car or the driver. And beyond the officer’s suspicion
that the driver may have been impaired, the state points to no other factors that created a
“now or never” situation.
Additionally, the state’s evid ence wholly failed to ad dress whether it would have
been reasonable for the officer to obtain a warrant. Although the state’s brief contends that
it would have been unreasonable, this assertion is based on speculation and not on anything
in the record.
Finally, we reject the state’s request to apply a more relaxed standard in considering
whether exigent circumstances justify a warrantless ALPR search because such a search is
less intrusive than a residential search. The state did not present this argument to the district
court, and the stipulated record is not sufficiently developed for us to consider it. See Thiele
v. Stich, 425 N.W.2d 580, 582 (Minn. 1996) (stating that a revi ewing court should only
consider issues that were presented and considered by the district court).
This is a close case. We want to give police officers the authority to respond to
offenses and situations that endanger the pub lic. But given the facts here, we agree with
the district court that the state’s evidence did not prove exigent circumstances.
III. The state forfeited its argument that evidence suppression is an improper
remedy for violations of section 13.824, subdivision 2(d).

As a remedy for the statutory violation, the district court su ppressed all evidence
gathered from the use of the AL PR. For the first time on app eal, the state argues that the
14
remedy of suppression, which is used to address violations of the constitutional search-
warrant requirement, should not apply to viola tions of section 13.824. Generally, issues
that were not raised before the district court are forfeited and will not be decided. Roby v.
State, 547 N.W.2d 354, 357 (Minn. 1996). Limited exceptions occur when the novel issue
invokes the federal or state constitution and the issue has been briefed by both parties. See
Tischendorf v. Tischendorf , 321 N.W.2d 405, 410 (Minn. 1982); State v. Sorenson , 441
N.W.2d 455, 457 (Minn. 1989). Although the stat e raised this issue in its appellate brief,
it provided minimal analysis. Moreover, the issue does not invoke th e constitution. We
therefore conclude that the state has forfeited this argument and we do not decide the issue.
Affirmed.
D-1
ROSS, Judge (dissenting)
I respectfully dissent. I agr ee with the majority that , by its plain terms, the
automated-plate-reader statut e authorizes police to use da ta collected by license-plate
readers to monitor or track a criminal suspect in either of two situations: (1) when a
probable-cause-based warrant directs police to do so, or (2) when police face the same sort
of exigent circumstance that courts applying constitutional standards ha ve held to be an
exception to the warr ant requirement. See Minn. Stat. § 13.824, subd. 2(d) (2020). But
caselaw teaches that an urgent and serious public-safety threat is, standing alone, an exigent
circumstance that justifies wa rrantless police action. And I be lieve that the Prior Lake
police faced that kind of exig ent circumstance when they learned that a drunk, speeding,
reckless driver was operating his car on the road ways in and near a public park. I would
therefore reverse, holding that the district court erred by suppressing the plate-reader data
that police used to locate and stop Aleksandr Lelyukh’s car.
Courts assessing police conduct under constitutional standards have recognized that
an exigent circumstance is one that is pressing, demanding, and urgent, and that preventing
physical harm tops the exigent-circumstances list of reasons justifying immediate,
warrantless police action. Our state supreme court emphasized this by establishing that an
officer’s “protection of human life” satisfies a bright-line, single-factor test constituting an
exigency and obviating an y need for further analysis under a multifactor,
totality-of-the-circumstances test. In re Welfare of D.A.G. , 484 N.W.2d 787, 791 (Minn.
1992) (quotation omitted). Other courts have likewise “define[d] exigent circumstances as
those circumstances that woul d cause a reasonable person to believe that [the challenged
D-2
police activity] was necessary to prevent physical harm to the officers or other persons.”
United States v. McConney, 728 F.2d 1195, 1199 (9 th Cir. 1984) (en banc), overruled on
other grounds by Estate of Merchant v. C.I.R., 947 F.2d 1390, 1392–93 (9th Cir. 1991); cf.
United States v. Toussaint , 838 F.3d 503, 507 (5th Cir. 2016) (outlining public-safety
exigency exception by observing that “the police serv e a community caretaking function
to ensure the safety of citizens” (quotation omitted)). The United States Supreme Court has
similarly explained, “The need to protect or preserve life or avoid serious injury is
justification for what would be otherwise illegal absent an exigency or emergency.”
Brigham City v. Stuart , 547 U.S. 398, 403 (2006) (quotation omitted). The majority
acknowledges the existence of this single-factor test for public safety but refuses to apply
it for two reasons, both of which I think are flawed.
The first faulty rationale is the majority’s theory that “h ere, . . . [because] at most,
the officer had some information suggesting a possibility of dange r,” the information
available to the officers was not sufficient to establish a single-factor exigency. The
majority says that “at most” only a “possibility of danger” existed here because it believes
this case mirrors In re Welfare of B.R.K., where the supreme court distinguished between
an actual, urgent danger (an exigency) and a mere “possibility of danger to human life” (a
nonexigency). 658 N.W.2d 565, 579 (Minn. 2003). But two critical factors demonstrate
that this case bears absolutely no relevant similarity to B.R.K. First, the B.R.K. court faced
a challenge to the most invasive form of constitutionally limited police activity—
nonconsensual entry in to a person’s home. Florida v. Jardines , 569 U.S. 1, 6 (2013)
(“[W]hen it comes to the Fourth Amendment, the home is first among equals.”). By sharp
D-3
contrast, this case involves ar guably one of the least invasi ve police activities, one that
implicates no express constitutional issue—use of data to locate a vehicle in public.
Second, the B.R.K. case involved only a parent’s unspecific concerns about her child and
other teenagers drinking alcohol inside a house and a deputy’s vague and attenuated
speculation that drinking might lead to intoxication and intoxication might lead to a risky
encounter with unidentified household hazards. Id. at 569. By very sharp contrast, this case
involves a specific report of presently occurring reckless, speeding, drunk driving.
Given those two material dissimilarities between the circumstances here and the
circumstances in B.R.K. as it regards danger, describing the officers as having learned
merely of “some facts suggesting a possibility of danger” misaligns this case with B.R.K.,
misunderstands the concept of danger, and erroneously minimizes the exigency. Every
reasonable police officer would believe that th e man speeding the Le xus into and out of
the public park, with beer cans falling out of his car, was operating both drunk and
recklessly. And a car being operated by a speeding, reckless, drunk driver does not merely
suggest a possibility of danger, it constitutes a real and immediate danger. The instant the
reported conduct occurred, Lelyukh’s car, like a bullet fired by a careless shooter toward a
crowd, was a danger despite the uncertainty that it would eventually strike someone. In my
opinion, although we might fa irly say that an eventual injury was “at most . . . a
possibility,” we cannot say this about the danger, which already existed. The threat of
injury is itself the danger that officers are authorized to address as an exigent circumstance
without obtaining a warrant.
D-4
I add that courts know well that the dang er that each drunk driver poses every
moment he remains on the street is a present reality, not a mere future “possibility.” Half a
century ago, the Supreme Court described dr unk driving as “one of the great causes
of the mortal hazards of th e road,” and it decried, “The increasing slaughter on
our highways, most of which should be avoidable, now reaches the astounding figures
only heard of on the battlefield.” Breithaupt v. Abram , 352 U.S. 432, 439 (1957). Little
has changed and the numbers grow. The Minnesota Department of Public Safety reported
that drunk drivers caused at least 4,027 crashes in 2018, resulting in 2,156 injured, and 123
dead. Minn. Dep’t of Pub. Safety, Minnesota Traffic Crashes in 2018 ,
at i (2018), https://dps.mn.gov/divisions/ots/reports-statistics/Documents/2018-crash-
facts.pdf. Over recent decades, drunk drivers have accounted for between one-quarter and
one-half of Minnesotans kille d in traffic collisions. Id. at 41. Whet her or not they know
this detailed data, police officers understand that an active drunk driver is deathly
dangerous to himself, to his passengers, and to every pedestrian and occupied vehicle in
his path. This is not speculative, like wondering whether teenagers drinking inside a home
might become intoxicated and then do someth ing risky. Each minute the officers here
might have spent contemplating, drafting, submitting, and awaiting the results of a warrant
application would have been time needlessl y prolonging the danger and increasing the
possibility that anothe r unsuspecting Minnesotan would become a drunk-d river fatality
statistic.
The second faulty rationale the majority depends upon is its apparent view that
probable cause was necessary for the officers to act on the exigency. This is just not so
D-5
either under the statute or under the exigency pr inciples in caselaw that we must apply to
effectuate the statute. The statute itself refe rs to probable cause only in the context of
describing a warrant issued under the subdi vision, not to refer to the alternative
authorization to use the da ta—an exigent circumstance. See Minn. Stat. § 13.824,
subd. 2(d) (outlining the alternative bases in the disjunctive, “u nless authorized by a
warrant, issued upon probable cause, or exigent circumst ances justify the use without
obtaining a warrant”). Whether the officers had probable cause is therefore irrelevant to
their use of the data here: probable cause is not sufficient for use under the first alternative
(since that alternative also requires a warrant and in any event the officers did not base their
use on that option) and because probable cause is unnecessary under the second alternative
(as the statute does not require probable cause fo r an officer to use the data to react to an
exigent circumstance regardless of whether police suspect that any law has been violated).
And regarding caselaw, as the Supreme Court has outlined, the standard by which police
may act without a warrant based on a safety exigency is certainly not probable cause to
believe that a crime was committed (or even to believe that an exigency exists) but instead
merely an objectively reasonable basis to believe there is a “need to assist people who are
seriously injured or threatened with such an injury.” Stuart, 547 U.S. at 403. The reported
conduct provided an objectively reasonable basis to believe that the officers needed to
intervene to protect those threatened with serious injury.
I observe finally that the statute demonstr ates the legislature’s express intent to
restrict government officials in their effort “to monitor or track an individual,” Minn. Stat.
§ 13.824, subd. 2(d), and that the police here wanted the data merely to locate the car—a
D-6
police activity far less intrus ive than the electronic monito ring and tracking presumably
available with the technological surveillance tool. I agree that using the data to locate the
car was indeed a kind of tracking, but the reasonableness of contested police conduct is
measured by degree against the significance of the reason for it. Given the gravity of the
urgent need to end the danger and prevent se rious injury here as balanced against the
minimal intrusiveness of using the data mere ly to locate Lelyukh’s car in public, I am
convinced that the prompt and prudent police response did not offend the statute. I would
reverse.