                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-0037

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                               Kristopher Lee Roybal,
                                     Appellant.

                                 Filed July 21, 2014
                                      Affirmed
                                 Rodenberg, Judge

                            Ramsey County District Court
                              File No. 62-CR-12-2471

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

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Drake D. Metzger, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Rodenberg, Presiding Judge; Johnson, Judge; and

Chutich, Judge.

                       UNPUBLISHED OPINION

RODENBERG, Judge

      Appellant Kristopher Lee Roybal challenges his conviction of first-degree driving

while impaired (DWI) after a stipulated-evidence trial and after his petition for
postconviction relief was summarily denied by the district court while his direct appeal

was stayed. We affirm.

                                         FACTS

      In the early morning hours of March 27, 2012, Minnesota State Patrol Trooper

Peter Schultz was on patrol traveling eastbound on Interstate 94.          He witnessed

appellant’s vehicle swerve and cross two solid white lines at the apex of the exit on

Marion Street. When the squad car’s overhead lights were activated, an automated and

dash-mounted camera started recording.

      Appellant promptly pulled over, and Trooper Schultz approached the driver’s-side

window. He identified appellant as the driver. He noticed that appellant’s eyes were

watery and bloodshot and that appellant had trouble locating his proof of insurance when

asked for it. Trooper Schultz then had appellant get out of his vehicle to perform several

field sobriety tests (which indicated impairment) and a preliminary breath test (which

showed an alcohol concentration of .149).        Appellant was placed under arrest at

approximately 2:45 a.m., but was not initially read his Miranda rights.

      Trooper Schultz transported appellant to the Ramsey County Law Enforcement

Center (LEC) in his squad car. The squad-car recording reveals that the following

conversation took place:

             SCHULTZ: You okay with doing a urine test? You ever
             done one of those before? That’s alright with you?

             [Pause]

             APPELLANT: Do you think I’m on other drugs or
             something?


                                            2
             SCHULTZ: It’s either going to be urine or blood and I’m
             assuming you don’t want to get stabbed by a needle.

             [Pause]

             APPELLANT: What made you want to do a Breathalyzer on
             me?
             SCHULTZ: I stopped you because you . . . I stopped you
             because when you took that ramp you cut across the median.
             APPELLANT: Oh.

             [Pause]

             APPELLANT: You know why I cut across that median?
             SCHULTZ: Why’s that?
             APPELLANT: Because my passenger told me, ‘hey you need
             to get off this ramp.’
             SCHULTZ: Giving you bad directions?
             APPELLANT: Yeah.

After arriving at the Ramsey County LEC, appellant was read the implied consent

advisory at 3:12 a.m. He was informed of his right to consult with counsel, but chose not

to contact an attorney. Appellant agreed to give a urine sample at 3:21 a.m., which, when

tested, showed an alcohol concentration of .15. Trooper Schultz did not attempt to obtain

a warrant for the urine sample. Appellant was read his Miranda rights at 3:44 a.m. and

declined to continue speaking with Trooper Schultz.

      Appellant was charged with two counts of first-degree DWI in violation of Minn.

Stat. § 169A.20, subd. 1(1), (5) (2010). He moved to suppress evidence on several

grounds, including Trooper Schultz’s lack of a reasonable, articulable suspicion to stop

appellant and his failure to read appellant his Miranda rights before administering field

sobriety tests. Appellant did not challenge admission of the statement he made in the




                                           3
squad car or the legality of his consent to provide a urine sample once at the Ramsey

County LEC.

       Trooper Schultz testified at the omnibus hearing. He refreshed his memory with a

DWI report he wrote shortly after the arrest. Trooper Schultz testified that he “noticed a

vehicle a couple cars in front of [him] cut across several lanes of traffic to make an exit

ramp to go to Marion Street.” The vehicle was in the center lane and cut across the solid

white lines separating the ramp from the highway at the apex of the Marion Street exit.

He testified that the vehicle was in the center lane when it swerved to exit on Marion, but

his DWI report indicated that the vehicle was in the right lane.          Trooper Schultz

explained that his DWI report indicated that the vehicle was in the right lane, as opposed

to the center lane, because the stretch of freeway in question had four lanes, and

appellant’s vehicle was in “one of the right lanes.” He agreed that if a car was in the far-

right lane, it would “get right off on Marion.”

       Appellant’s vehicle is black. Trooper Schultz initially testified that appellant’s

vehicle was white, but later testified that it was black. The DWI report stated that the

vehicle was white, and Trooper Schultz explained that his report relied on public records

that incorrectly listed the vehicle as white. Despite this discrepancy, Trooper Schultz

testified that the car he pulled over “was the same car” that he witnessed cross the two

solid white lines at the apex of the Marion Street exit.

       On cross-examination, appellant’s attorney questioned Trooper Schultz as to why

the squad-car recording did not capture the alleged traffic violation, and why Trooper

Schultz never attempted to obtain Minnesota Department of Transportation (MnDOT)


                                              4
footage of the incident. Trooper Schultz explained that the squad-car camera did not

record appellant’s traffic violation because it does not begin to record until it is manually

activated or the squad car’s overhead lights are activated. He also testified that he did not

attempt to obtain MnDOT footage because he did not think the recordings would have

captured the incident, and they are erased after only three or four days.

       Appellant testified that there are five lanes (rather than four) where the alleged

traffic violation occurred, and that he had been traveling in the far-right lane. Appellant

testified that he followed the instructions of his passenger and moved into the right lane

after Dale Street so as not to miss the Marion Street exit, and that, because he was in the

right lane, he did not cut across any lanes or white lines to make the exit. Appellant was

impeached with evidence of three prior, non-DWI criminal convictions.

       The district court denied appellant’s motion to suppress, finding as facts that

“[appellant] missed the beginning of the exit ramp, and swerved quickly crossing two

solid white lines” to make the exit.        It concluded that “Trooper Schultz did not

intentionally or unlawfully withhold video evidence of [appellant’s traffic violation].”

The district court also noted that “during the transfer to the Ramsey County LEC,

[appellant] acknowledge[d] the driving conduct that led to the traffic stop.” Appellant

stipulated to the state’s evidence pursuant to Minn. R. Crim. P. 26.01, subd. 4 to preserve

the pretrial issues for appeal, and the district court found appellant guilty of first-degree

DWI in violation of Minn. Stat. § 169A.20, subd. 1(5). Because appellant had three prior

DWI convictions, he was sentenced to fifty months in prison pursuant to Minn. Stat.

§ 169A.24, subds. 1(1), 2 (2010).


                                             5
       Appellant timely appealed his conviction. We stayed his direct appeal to allow

appellant to pursue postconviction relief in the district court. His postconviction petition

argued that, pursuant to Missouri v. McNeely, 133 S. Ct. 1552 (2013), decided after the

denial of appellant’s suppression motion, appellant’s urine sample was obtained in

violation of his Fourth Amendment rights and that evidence of the test results should

therefore have been suppressed. He also argued that the Minnesota Implied Consent Law

places an unconstitutional condition on the privilege to drive in this state. The district

court summarily denied the petition without a hearing because appellant had not raised

the issues pretrial. Appellant also appealed from the denial of his postconviction petition.

We consolidated his direct appeal and his appeal of the denial of postconviction relief.

                                     DECISION

                                             I.

       Appellant argues in his direct appeal that the district court erred in concluding that

Trooper Schultz had a reasonable, articulable basis for stopping appellant as he exited the

freeway. The United States and Minnesota Constitutions guarantee the “right of the

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

searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. We examine

the reasonableness of a traffic stop under the principles set forth in Terry v. Ohio, 392

U.S. 1, 88 S. Ct. 1868 (1968). State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004).

We must determine “whether the stop was justified at its inception” and whether the

police action “during the stop [was] reasonably related to and justified by the

circumstances that gave rise to the stop.” Id. at 364.


                                             6
         An officer may conduct a limited investigatory traffic stop if he has a

particularized and objective basis for suspecting criminal activity. State v. Anderson, 683

N.W.2d 818, 822-23 (Minn. 2004). An officer who observes a traffic violation has an

objective basis for stopping a vehicle. State v. George, 557 N.W.2d 575, 578 (Minn.

1997).

         When reviewing a pretrial order on a motion to suppress evidence, we review

factual findings for clear error and legal determinations de novo. State v. Gauster, 752

N.W.2d 496, 502 (Minn. 2008). Reversal for clear error occurs only when we are “left

with the definite and firm conviction that a mistake has been made.” State v. Gomez, 721

N.W.2d 871, 883 (Minn. 2006) (quotation omitted). We defer to the district court’s

credibility determinations. State v. Miller, 659 N.W.2d 275, 279 (Minn. App. 2003),

review denied (Minn. July 15, 2003).

         Appellant points to the inconsistencies between Trooper Schultz’s DWI report and

his testimony at the omnibus hearing concerning which lane appellant’s car was traveling

in before it swerved and the color of appellant’s vehicle.          He argues that these

inconsistencies render Trooper Schultz’s testimony not credible. He also argues that,

because the district court’s factual finding regarding appellant’s alleged traffic violation

is clearly erroneous, the record does not support the district court’s factual findings.

Therefore, he argues, the traffic stop was unconstitutional because it was not based on a

reasonable, articulable suspicion of criminal activity.

         Based on Trooper Schultz’s testimony, the district court found that appellant had

committed a traffic violation by swerving and crossing two solid white lines at the apex


                                              7
of the Marion Street exit. The district court implicitly found Trooper Schultz’s testimony

credible, and we defer to the district court’s factual findings if the record supports the

findings. See Pechovnik v. Pechovnik, 765 N.W.2d 94, 99 (Minn. App. 2009) (noting

that a district court’s findings regarding credibility may be implicit); Gauster, 752

N.W.2d at 502 (noting that we review factual findings for clear error); Miller, 659

N.W.2d at 279 (noting that we defer to credibility determinations). Because it has record

support, the district court’s factual finding regarding the traffic violation is not clearly

erroneous. See Gomez, 721 N.W.2d at 883 (noting that we must be “left with the definite

and firm conviction that a mistake has been made” to find clear error). The district court

did not err in concluding that Trooper Schultz had an objectively reasonable basis to stop

appellant’s vehicle.

                                            II.

       Appellant also argues that evidence of his squad-car admission of the alleged

traffic violation should be suppressed because he was not first read his Miranda rights.

“[A] Miranda warning is required as a procedural safeguard to protect a suspect’s Fifth

Amendment rights when the police subject a suspect to custodial interrogation.” State v.

Vue, 797 N.W.2d 5, 10 (Minn. 2011) (emphasis omitted); see also U.S. Const. amend. V

(providing that “[n]o person . . . shall be compelled in any criminal case to be a witness

against himself”); Minn. Const. art. I, § 7 (same). “A Miranda warning is required if a

suspect is both in custody and subject to interrogation.” State v. Scruggs, 822 N.W.2d

631, 637 (Minn. 2012).




                                             8
       The district court found that “during the transfer to the Ramsey County LEC,

[appellant] acknowledge[d] the driving conduct that led to the traffic stop.” Appellant

indicates that his admission was made while in custody, after his arrest, and before

Miranda warnings were given. He argues that “Trooper Schultz should have known that

talking about the alleged reason for stopping [appellant] would elicit a potentially

incriminating response from [him],” and that the admission was therefore the product of

interrogation and must be suppressed. The state argues that appellant is not entitled to

relief on this issue because (1) appellant did not raise the issue pretrial and it is therefore

barred, and (2) the admission was spontaneous and not made in response to interrogation.

       We initially consider whether this issue was preserved for our review. At the

omnibus hearing, appellant argued that, because he should have been given Miranda

warnings before Trooper Schultz administered any field sobriety tests, evidence of those

test results should have been suppressed. On appeal, he makes a different argument: that

his squad-car admission should have been suppressed. The state argues that this issue

was waived because appellant did not raise it in the district court. See Roby v. State, 547

N.W.2d 354, 357 (Minn. 1996) (noting that issues not raised in the district court are

generally waived on appeal). However, we may address an issue not raised in the district

court if we determine that it is required in the interests of justice and it would work no

unfair surprise on the opposing party. Id.; see also Minn. R. Crim. P. 28.02, subd. 11.

We conclude that our consideration of this issue is required in the interests of justice. If

appellant were to have been interrogated while in custody and without being first advised

of his Miranda rights, the interests of justice would warrant appellate relief, and the state


                                              9
is not unfairly surprised because all of the relevant evidence regarding the issue is

contained in an electronic video recording in the record. See Roby, 547 N.W.2d at 357.

       Because appellant was in custody while in the back of the squad car, any

statements made by him in response to interrogation before he was advised of his

Miranda rights should be suppressed. See Scruggs, 822 N.W.2d at 637. But not all

statements made by an arrestee while in custody are the product of interrogation. Rhode

Island v. Innis, 446 U.S. 291, 299-301, 100 S. Ct. 1682, 1689-90 (1980). Miranda

warnings protect an arrestee from “express questioning or its functional equivalent.” Id.

at 300-01, 100 S. Ct. at 1689. Interrogation includes “any words or actions on the part of

the police . . . that the police should know are reasonably likely to elicit an incriminating

response from the suspect.”      Id. at 301, 100 S. Ct. at 1689-90.         “[S]pontaneous,

volunteered statement[s] not made in response to interrogation” will not be suppressed as

a result of an arrestee not being given Miranda warnings. State v. Hale, 453 N.W.2d 704,

707 (Minn. 1990). “We independently apply the totality-of-the-circumstances test to the

facts as found by the [district] court on the issue of the voluntariness of a defendant’s

statements.” State v. Jackson, 351 N.W.2d 352, 355 (Minn. 1984).

       The state argues that, “[w]hile appellant may have been in custody in the squad

car, Trooper Schultz did not interrogate him.” It contends that, in response to Trooper

Schultz’s telling appellant why he was pulled over, appellant could have stopped at

saying “Oh.” Instead, after a short pause, appellant volunteered the explanation for why

he had committed a traffic violation:




                                             10
             APPELLANT: What made you want to do a Breathalyzer on
             me?
             SCHULTZ: I stopped you because you . . . I stopped you
             because when you took that ramp you cut across the median.
             APPELLANT: Oh.

             [Pause]

             APPELLANT: You know why I cut across that median?
             SCHULTZ: Why’s that?
             APPELLANT: Because my passenger told me, ‘hey you need
             to get off this ramp.’
             SCHULTZ: Giving you bad directions?
             APPELLANT: Yeah.

      We first observe that the interaction in the squad car was conversational. Trooper

Schultz asked appellant about whether he would prefer a urine test or a blood test. 1 After

that question, Trooper Schultz made no other inquiry of appellant, except as initiated by

appellant’s statements. Our review of the record convinces us that appellant’s admission

of having “cut across that median” was not made in response to interrogation. Appellant

initiated the conversation when he asked Trooper Schultz why he wanted appellant to do

a breath test, which Trooper Schultz seems to have interpreted as appellant asking why he

had stopped appellant’s vehicle.      The electronic squad-car recording reveals that

appellant responds “Oh” and, after a lengthy pause, he offers an explanation for his

driving. The explanation was not in response to any direct questioning by Trooper

Schultz.



1
 Arguably this line of conversation should not have been started by Trooper Schultz until
appellant had been advised of his implied-consent rights. But as discussed below,
appellant was read his implied-consent rights at the Ramsey County LEC and before he
selected a urine test from the menu of options given him.

                                            11
       The state also compares this case to Jackson, wherein a jail deputy responded to

an inmate’s comment about the death penalty by telling the inmate “[y]ou are the only

one who knows you did it.” See id. at 354. The inmate then responded by admitting his

guilt, and our supreme court held that this admission was not the product of interrogation.

Id. at 354-55. In so holding, the supreme court noted that the inmate had initiated the

conversation and that his comment had invited a response from the deputy. Id. at 355.

Therefore, the deputy was not required to interrupt the inmate’s spontaneous statement in

order to give Miranda warnings. Id. at 356.

       Like in Jackson, appellant initiated the conversation at issue and then offered an

explanation for his driving behavior. See id. at 354-55. The admission was not made in

response to direct police questioning. Based on the totality of the circumstances, and

after watching and listening to the squad-car conversation, we conclude that appellant’s

admission was not made in response to interrogation, and therefore the statement need

not be suppressed.

                                           III.

       “When a defendant initially files a direct appeal and then moves for a stay to

pursue postconviction relief, we review the postconviction court’s decisions using the

same standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836

(Minn. 2012). A summary denial of a postconviction petition without an evidentiary

hearing is reviewed for an abuse of discretion. State v. Nicks, 831 N.W.2d 493, 503

(Minn. 2013).




                                            12
        The United States and Minnesota Constitutions guarantee the right to be secure

against unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,

§ 10.   The taking of a blood, breath, or urine sample is a physical intrusion that

constitutes a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109

S. Ct. 1402, 1412-13 (1989). A search is generally unreasonable unless it is conducted

pursuant to a warrant issued upon probable cause. Id. at 619, 109 S. Ct. at 1414. But

there are established exceptions to the warrant requirement. One such exception is

consent to the search. State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992).

        Appellant argues that his consent to provide a urine sample while at the Ramsey

County LEC was unconstitutionally coerced. We first consider whether this issue was

preserved for appeal. The district court held that appellant’s postconviction arguments

were procedurally barred because appellant did not raise the consent issue pretrial.

Appellant cites Griffith v. Kentucky, 479 U.S. 314, 327-28, 107 S. Ct. 708, 715-16

(1987), for the proposition that McNeely and Brooks must be retroactively applied to his

case. The state argues that Griffith applies only to issues that were first raised in the

district court and to which a defendant seeks to apply a new rule that is announced while

his case was pending. Additionally, the state points out that appellant could have raised

the consent issue pretrial even though Brooks had not yet been decided (as this is what

the defendant in Brooks did). See 838 N.W.2d at 566.

        In summarily denying appellant’s postconviction petition, the district court

reasoned that appellant’s failure to raise the consent issue pretrial barred the claims. But

the district court relied on three cases that stand only for the proposition that an appellate


                                             13
court will not consider issues that are not first raised in the district court. See State v.

Williams, 794 N.W.2d 867, 874 (Minn. 2011); State v. Henderson, 706 N.W.2d 758, 759

(Minn. 2005); State v. Schleicher, 672 N.W.2d 550, 555 (Minn. 2003). Postconviction

relief is barred procedurally if, after a direct appeal, the issue raised in the postconviction

petition could have been raised in the direct appeal. Minn. Stat. § 590.01, subd. 1.

Appellant filed his postconviction petition while his direct appeal was stayed. The

district court, therefore, erred in summarily denying appellant’s petition. See Nicks, 831

N.W.2d at 503.

       For the consent exception to the warrant requirement to apply, the state must show

by a preponderance of the evidence that a defendant “freely and voluntarily” consented.

State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). Whether an individual voluntarily

consented is a factual question normally reviewed for clear error. Id. In a case with

factual disputes on the issue of consent, we would remand the case for an evidentiary

hearing on that issue. But here, the parties are making purely legal arguments based on

undisputed facts. We therefore address the consent issue on the undisputed record. See

Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007) (noting that a postconviction court’s

legal determinations are reviewed de novo); see also Brooks, 838 N.W.2d at 568-72

(discussing the consent exception in the context of DWI enforcement).

       In Brooks, the defendant was arrested for DWI on three separate occasions and on

each occasion was read the implied consent advisory, spoke with an attorney by

telephone, and agreed to submit to testing. 838 N.W.2d at 565-66. Our supreme court

held that voluntariness of consent must be determined by examining “the totality of the


                                              14
circumstances, including the nature of the encounter, the kind of person the defendant is,

and what was said and how it was said.” Id. at 569 (quotation omitted). Moreover, the

language of the implied consent advisory makes clear that a person has a choice of

whether to submit to testing, and “the fact that someone submits to the search after being

told that he or she can say no to the search supports a finding of voluntariness.” Id. at

572.

       The Brooks court concluded that nothing in the record suggested that the

defendant “was coerced in the sense that his will had been overborne and his capacity for

self-determination critically impaired.” Id. at 571 (quotation marks omitted). In so

holding, the supreme court set forth some circumstances that may suggest coercion, such

as when a suspect is “confronted with repeated police questioning” or “asked to consent

after having spent days in custody.” Id.

       Appellant relies on evidence contained in the squad-car recording to argue that

Trooper Schultz coerced appellant into consenting to a urine test by stating that “it’s

either going to be urine or blood and I’m assuming you don’t want to get stabbed by a

needle.” Appellant argues that, because Trooper Schultz did not tell appellant while in

the squad car that he had a right to refuse the test, the purpose of the implied consent

advisory was undermined. The state argues that we must instead look to the totality of

the circumstances to determine whether appellant freely consented to provide a urine

sample.

       Here, appellant was read the implied consent advisory, indicated that he

understood the advisory and did not wish to consult with an attorney, and agreed to


                                           15
provide a urine sample within an hour of arriving at the Ramsey County LEC. Our

review of the squad-car video convinces us that the conversation in the squad car was not

overbearing or coercive. In fact, appellant appears to have ignored Trooper Schultz’s

question about whether he preferred a urine or blood test. Instead, appellant asked why

Trooper Schultz had chosen earlier to give him a breath test. Additionally, appellant was

later read the implied consent advisory, ameliorating any alleged coercion in the squad

car. We also note that appellant has three prior DWI convictions, and the implied-

consent procedure was familiar to him.            We conclude that the totality of the

circumstances indicates that appellant voluntarily consented to providing a urine sample.

Nothing in the record indicates that his consent “was coerced in the sense that his will

had been overborne and his capacity for self-determination critically impaired.” See id.

at 571.

          Appellant also argues that Minnesota’s implied-consent law is unconstitutional

because it conditions the privilege to drive on the relinquishment of a constitutional right,

namely, the right to be free from unreasonable searches and seizures. We note that this

issue was not adequately briefed. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919

n.1 (Minn. App. 1994) (declining to address constitutional arguments due to inadequate

briefing). But this argument also fails on its merits. Brooks held that “a driver’s decision

to agree to take a test is not coerced simply because Minnesota has attached the penalty

of making it a crime to refuse the test.” 838 N.W.2d at 570. And a recent decision of this

court rejects the unconstitutional-conditions argument in the implied-consent context.

See Stevens v. Comm’r of Pub. Safety, ___ N.W.2d ___, ___, 2014 WL 3396522, at *5-


                                             16
11 (Minn. App. July 14, 2014) (setting forth four reasons why the Minnesota Implied

Consent Law does not violate the doctrine of unconstitutional conditions).    Here,

appellant did not refuse to submit to testing. He was not charged with test refusal.

Appellant’s unconstitutional-conditions argument fails.

      Affirmed.




                                           17
