                          This opinion will be unpublished and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
                                     A13-1768

                                Bjorn Knudsen, petitioner,
                                      Respondent,

                                           vs.

                             Commissioner of Public Safety,
                                      Appellant

                                  Filed October 6, 2014
                                        Reversed
                                     Peterson, Judge

                              Dakota County District Court
                              File No. 19AV-CV-13-1237

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota (for
respondent)

Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Reilly, Judge; and Reyes,

Judge.

                         UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from a district court order that rescinded the revocation of

respondent’s driver’s license under the implied-consent statute, appellant argues that the
district court erred in determining that respondent did not voluntarily consent to a breath

test. We reverse.

                                         FACTS

       Dakota County Sheriff’s Deputy Jonathan Reimers stopped a vehicle that

respondent Bjorn Knudsen was driving at approximately 3:00 a.m., after the vehicle

crossed the fog line three times and the center line twice. During the stop, Reimers began

to suspect that Knudsen was under the influence of alcohol, and he eventually arrested

Knudsen for driving while impaired. Knudsen stipulated that Reimers “conducted an

investigation . . . which led him to believe that [Knudsen] was driving while impaired”

and that Reimers had probable cause to arrest Knudsen.

       Reimers took Knudsen to the Dakota County Jail and read him the standard

implied-consent advisory. During the advisory, Knudsen was told that refusal to take a

test is a crime. Knudsen said that he understood the advisory and did not wish to consult

with an attorney. Reimers offered Knudsen a blood, breath, or urine test. Knudsen

agreed to take a breath test, which revealed a .21 alcohol concentration, and appellant

Commissioner of Public Safety revoked Knudsen’s driver’s license under Minn. Stat.

§ 169A.52, subd. 4(a) (2012).

       At the implied-consent hearing on his license revocation, Knudsen challenged

only the admissibility of his warrantless breath test in light of Missouri v. McNeely, 133

S. Ct. 1552 (2013); he waived all other issues.        The district court found that the

commissioner failed to prove that Knudsen’s consent to alcohol testing was freely and

voluntarily given because


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              [w]hen the officer asked for [Knudsen’s] consent to conduct
              an alcohol concentration search in this case, [Knudsen] had
              already been placed under arrest, transported from [his]
              vehicle in a squad car to another secure location, and
              informed that if [he] refused to provide the requested consent,
              [he] would be charged with a crime. In addition [Knudsen’s]
              decision making was impaired [by] alcohol which [he] had
              previously consumed. While [Knudsen] was offered an
              opportunity to contact counsel to obtain advice regarding
              [his] decision to consent, no attorney was ever reached and no
              advice was obtained.

The district court suppressed the evidence obtained from the breath test and rescinded

Knudsen’s license revocation. The commissioner appeals.

                                     DECISION

       “In reviewing [district] court rulings on [F]ourth [A]mendment issues, this court

accepts the [district] court’s findings of fact, unless clearly erroneous, but independently

applies [F]ourth [A]mendment case law to the facts so found.” State v. Saffels, 484

N.W.2d 429, 430 (Minn. App. 1992), review denied (Minn. June 1, 1992). The United

States and Minnesota Constitutions guarantee persons the right to be free from

“unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10.

Taking a sample of a person’s blood, breath, or urine constitutes a search that requires

either a warrant or an exception to the warrant requirement. Skinner v. Ry. Labor Execs.’

Ass’n, 489 U.S. 602, 616-17, 619, 109 S. Ct. 1402, 1412-14 (1989); see also State v.

Brooks, 838 N.W.2d 563, 568 (Minn. 2013) (blood and urine testing), cert. denied, 134

S. Ct. 1799 (2014). “[P]olice do not need a warrant if the subject of the search consents.”

Brooks, 838 N.W.2d at 568.




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      “For a search to fall under the consent exception, the State must show by a

preponderance of the evidence that the defendant freely and voluntarily consented [to a

search].” Id. “‘Consent’ that is the product of official intimidation or harassment is not

consent at all.” Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388 (1991). But

             involuntariness of a consent to a police request is not to be
             inferred simply because the circumstances of the encounter
             are uncomfortable for the person being questioned. Rather, it
             is at the point when an encounter becomes coercive, when the
             right to say no to a search is compromised by a show of
             official authority, that the Fourth Amendment intervenes.
             Consent must be received, not extracted.

State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Consent is coerced when a suspect’s

“will has been overborne and his capacity for self-determination critically impaired.”

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047 (1973).

      “‘Voluntariness’ is a question of fact and it varies with the facts of each case.”

Dezso, 512 N.W.2d at 880. In determining whether a person has voluntarily consented to

testing for alcohol concentration, a court must consider “the totality of circumstances,

including the nature of the encounter, the kind of person the defendant is, and what was

said and how it was said.” Brooks, 838 N.W.2d at 569 (quotation omitted). “[T]he

nature of the encounter includes how the police came to suspect [the person] was driving

under the influence, their request that he take the chemical tests, which included whether

they read him the implied consent advisory, and whether he had the right to consult with

an attorney.” Id. For consent to be voluntary, a reasonable person must feel free to

refuse a law-enforcement request. Dezso, 512 N.W.2d at 880. Consent must be more




                                            4
than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S.

543, 548-49, 88 S. Ct. 1788, 1792 (1968).

       In evaluating whether Knudsen consented to testing, the district court did not have

the benefit of the supreme court’s opinion in Brooks because the opinion had not been

released when the order rescinding Knudsen’s license revocation was issued.             The

reasoning applied by the district court in this case was largely rejected in Brooks, where

the driver argued that his consent was coerced and he did not truly have a choice of

whether to submit to tests because police told him that if he did not submit, he would be

committing a crime. 838 N.W.2d at 570. The supreme court stated that the driver’s

custodial status was not “dispositive” and 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.” Id. at 570-71. The supreme court also rejected the driver’s argument

based on Bumper, 391 U.S. at 548-49, 88 S. Ct. at 1792, that the driver’s submission to

police authority was merely acquiescence and did not amount to actual consent for

purposes of Fourth Amendment analysis. Brooks, 838 N.W.2d at 571. The supreme

court explained that, unlike the homeowner in Bumper, who believed that police had a

search warrant that she had no right to resist, “the Minnesota Legislature has given those

who drive on Minnesota roads a right to refuse the chemical test” that “police are

required to honor.” Id.

       Knudsen argues that factual differences between Brooks and this case call for a

different result. He contends that the circumstances in Brooks included that the driver

“had been arrested on numerous prior occasions for DWI and was very familiar with the


                                             5
implied consent process, ignored the officers’ commands while in custody to the point of

being belligerent, and made repeated calls to his attorneys.” The circumstances of this

case, he argues, “were insufficient to meet the Commissioner’s burden of proving free

and voluntary consent.”        But we conclude that, under the Brooks totality-of-

circumstances test, the evidence that the commissioner presented establishes voluntary

consent.

       Knudsen conceded that there was probable cause to arrest him on suspicion of

driving while impaired. Reimers took Knudsen into custody and read him the implied-

consent advisory. Knudsen stated that he understood the advisory and did not wish to

consult with an attorney. He agreed to submit to a breath test. There is no evidence that

Reimers acted in anything other than a professional manner when reading the implied-

consent advisory or did anything to influence Knudsen to take the test. The record does

not show that Knudsen’s intoxication affected his ability to consent to testing; Knudsen

participated appropriately during the police encounter, and, in particular, he stated that he

understood the advisory. See State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999)

(affirming district court finding that intoxication did not affect suspect’s consent to a car

search when the suspect was able to communicate and participate appropriately in police

encounter).

       Because the evidence does not show that Knudsen’s right to say no was

compromised by a show of official authority or that his will was overborne and his

capacity for self-determination was critically impaired, the district court’s finding that

Knudsen’s consent to testing was not voluntary is clearly erroneous. See Fletcher v. St.


                                             6
Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (defining findings of facts as

clearly erroneous “if the reviewing court is left with the definite and firm conviction that

a mistake has been made”); Grp. Health, Inc. v. Heuer, 499 N.W.2d 526, 529 (Minn.

App. 1993) (stating that notice, which is generally a question of fact to be decided by the

fact-finder, becomes one of law when only one inference is possible from undisputed

facts).     We, therefore, reverse the district court’s rescission of Knudsen’s license

revocation.

          Because the consent-to-testing issue is dispositive, we do not address other issues

raised by the commissioner.

          Reversed.




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