                          This opinion will be unpublished and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
                                     A15-1162

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                   Deon Sinkfield, Jr.,
                                      Respondent.

                                Filed December 28, 2015
                                       Affirmed
                                      Willis, Judge

                              Dakota County District Court
                               File No. 19HA-CR-15-364


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

James C. Backstrom, Dakota County Attorney, Tori K. Stewart, Assistant County
Attorney, Hastings, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Mark D. Nyvold, Special
Assistant Public Defender, St. Paul, Minnesota (for respondent)


         Considered and decided by Stauber, Presiding Judge; Kirk, Judge; and Willis,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                           UNPUBLISHED OPINION

WILLIS, Judge

       Appellant state seeks reversal of a pretrial order suppressing respondent’s

confession on the ground that the Miranda warning given omitted any notice that an

attorney could be appointed for Sinkfield at no cost to him if he could not afford one and

if he so desired. The state argues that the suppression order will have a critical impact on

the likelihood of a successful prosecution, that the Miranda warning was sufficient, and

that Sinkfield knowingly and intelligently waived his privilege against self-incrimination

and confessed voluntarily.     Because we conclude that the Miranda warning was

insufficient, we affirm.

                                          FACTS

       Burnsville Police arrested respondent Deon Sinkfield, Jr. on February 4, 2015,

because he was a suspect in an aggravated-robbery investigation.             Sinkfield was

interviewed by two police officers while in custody at the police station. At the beginning

of the interview, one of the officers read to Sinkfield from a card, stating, “you have the

right to remain silent. Anything you say can and will be used against you in a court of law.

You have the right to talk to a lawyer and have one present with you before any questioning

if you wish.” The officer admitted that she mistakenly skipped one of the warnings printed

on the card; the parties do not dispute that this was an accidental omission. After more

than an hour of interrogation, Sinkfield confessed piecemeal to elements of the charged

offense. On February 6, 2015, Sinkfield was charged with aggravated first-degree robbery

and prohibited possession of a firearm.


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       Sinkfield moved to suppress his confession on the ground that the Miranda warning

given to him was insufficient because he was not given specific notice that an attorney

would be appointed for him if he could not afford one and if he so desired. The district

court granted the motion and ordered that the confession be suppressed. The state appealed

the ruling and moved to stay proceedings during the pendency of an appeal. Sinkfield

opposed the stay, demanding a speedy trial. The district court granted the stay, and this

appeal follows.

                                       DECISION

I.     The pretrial order suppressing Sinkfield’s confession has a critical impact on
       the likelihood of successful prosecution.

       The state can prevail on appeal from a district court’s pretrial ruling only if the ruling

is clearly and unequivocally erroneous, and has a critical impact on the state’s case. State

v. Scott, 584 N.W.2d 412, 416 (Minn. 1998); see also Minn. R. Crim. P. 28.04,

subd. 2(2)(b). “Critical impact has been shown when ‘the lack of the suppressed evidence

significantly reduces the likelihood of a successful prosecution.’” State v. Zanter, 535

N.W.2d 624, 630 (Minn. 1995) (citing State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn.

1987)). The court must consider the state’s evidence as a whole to assess the impact of a

suppression order. Scott, 584 N.W.2d at 416 (citing Zanter, 535 N.W.2d at 630-31).

Minnesota courts have repeatedly held that suppression of a confession by a defendant

satisfies the critical-impact requirement. See, e.g., id.; State v. Ronnebaum, 449 N.W.2d

722, 724 (Minn. 1990); State v. Anderson, 396 N.W.2d 564, 565 (Minn. 1986); State v.

Miller, 659 N.W.2d 275, 280 (Minn. App. 2003).



                                               3
       The parties dispute which facts should be considered in conducting the critical-

impact analysis. But we need not decide which facts in addition to the confession we

should consider, given the established principle that suppression of a defendant’s

confession “normally” satisfies the requirement—and there is no relevant distinguishing

factor here. See Ronnebaum, 449 N.W.2d at 724.

II.    The district court did not err in determining that the Miranda warning was
       insufficient.

       On a pretrial appeal challenging the suppression of evidence, if critical impact is

established, this court then conducts an independent review of the district court’s ruling.

State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006) (citing State v. Harris, 590 N.W.2d

90, 98 (Minn. 1999)). We review legal determinations de novo and accept factual findings

unless they are clearly erroneous. Id. (citing State v. Wiernasz, 584 N.W.2d 1, 3 (Minn.

1998)). The facts relevant to the Miranda issue here are not in dispute.

       The district court ordered suppression of Sinkfield’s confession on the ground that

the Miranda warning was constitutionally flawed because it omitted any notice that an

attorney could be appointed for Sinkfield prior to questioning at no cost to him if he could

not afford one and if he so desired. The state argues that the totality of the circumstances,

including Sinkfield’s past contact with the criminal-justice system, allows the inference

that he understood his right to a public defender. But Miranda itself specifically rejected

this argument.

       The United States Supreme Court unequivocally held in Miranda v. Arizona that a

suspect in a criminal case is entitled to effective notice of certain constitutional rights. 384



                                               4
U.S. 436, 467, 86 S. Ct. 1602, 1624 (1966). An effective Miranda warning must notify the

suspect

              that he has the right to remain silent, that anything he says can
              be used against him in a court of law, that he has the right to
              the presence of an attorney, and that if he cannot afford an
              attorney one will be appointed for him prior to any questioning
              if he so desires.

Id. at 479, 86 S. Ct. at 1630 (emphasis added). The Miranda court further held that

speculation as to whether an individual was otherwise aware of these rights could not be

permitted to relieve the state of its burden to provide the warning and specifically

prohibited such speculation based on “prior contact with authorities” because “whatever

the background of the person interrogated, a warning at the time of the interrogation is

indispensable to overcome its pressures and to insure that the individual knows he is free

to exercise the privilege at that point in time.” Id. at 468-69, 86 S. Ct. at 1625.

       Miranda explicitly provides that, in a custodial interrogation, mere notice of the

right to counsel will not suffice. Id. at 473, 86 S. Ct. at 1627. The suspect additionally

must be notified that a lawyer will be appointed for him if he cannot afford one, and if he

so desires, because “[w]ithout this additional warning the admonition of the right to consult

with counsel would often be understood as meaning only that he can consult with a lawyer

if he has one or has the funds to obtain one.” Id.

III.   Because the Miranda warning was inadequate, waiver and voluntariness are
       irrelevant.

       If a suspect has been properly warned under Miranda, the rights to counsel and to

remain silent can be waived if done “knowingly and intelligently.” Id. at 475, 86 S. Ct. at



                                              5
1628; see also Scott, 584 N.W.2d at 417; State v. Jones, 566 N.W.2d 317, 322 (Minn.

1997); State v. Merrill, 274 N.W.2d 99, 106 (Minn. 1978) (“Waiver is defined as an

intentional relinquishment or abandonment of a known right or privilege.”) (quotation

omitted). But waiver can be established only if the Miranda warning was adequate.

Miranda, 384 U.S. at 470, 86 S. Ct. at 1626. As the Supreme Court reaffirmed in Dickerson

v. United States, “The disadvantage of the Miranda rule is that statements which may be

by no means involuntary, made by a defendant who is aware of his ‘rights,’ may

nonetheless be excluded. . . .” Dickerson v. United States, 530 U.S. 428, 444, 120 S. Ct.

2326, 2336 (2000).

      Affirmed.




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