                          This opinion will be unpublished and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
                                     A15-0196

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Derek Jerome Vandyke,
                                       Appellant.

                                Filed November 23, 2015
                                       Affirmed
                                      Reilly, Judge

                               Anoka County District Court
                                File No. 02-CR-13-7745

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

Sarah M. Kimball, Carl J. Newquist, Newquist & Kimball Law Offices, P.C., Fridley,
Minnesota (for respondent)

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
Minnesota (for appellant)

         Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

         On appeal from his criminal vehicular operation conviction, appellant Derek

Jerome Vandyke challenges the district court’s denial of his motion to suppress the
results of his breath test, arguing that he did not freely and voluntarily consent to the

search. Appellant also argues consent is the sole exception to the warrant requirement

properly before this court. We affirm because this appeal is not limited to the sole issue

of whether appellant consented to the search, and the collection of appellant’s breath is a

search incident to a valid arrest.

                                           FACTS

       On November 4, 2013, appellant caused a two-vehicle crash resulting in an injury

to a passenger in the other vehicle. After being arrested at the scene of the collision on

suspicion of driving while intoxicated and criminal vehicular operation, an officer took

him to the Fridley Police Department and read the Minnesota Implied Consent Advisory.

It included the provision “[b]ecause I also have probable cause to believe you have

violated the criminal vehicular homicide or injury laws, a test will be taken with or

without your consent.”      Appellant agreed to provide a breath sample and the test

indicated an alcohol concentration of 0.15.

       At a contested omnibus hearing, appellant challenged the admissibility of the

breath test. Both parties submitted written memoranda on the contested issues. The

district court denied appellant’s motion to suppress the breath test. In its order the district

court noted:

               The Court’s review of the record indicates that at the hearing,
               counsel for Defendant stated that the prosecution had agreed
               to waive all arguments that the warrantless breath test was
               constitutional except for the argument that Defendant
               consented to the test. Counsel for the State of Minnesota
               neither agreed with this statement nor objected to it.



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       The court further explained that appellant’s memorandum of law addressed

numerous exceptions to the warrant requirement beyond consent, and appellant did not

object to the additional arguments raised in the state’s brief. The district court denied

appellant’s motion to suppress the breath test.     The parties proceeded to a trial on

stipulated facts, and appellant was convicted of second-degree criminal vehicular

operation resulting in bodily harm in violation of Minn. Stat. § 609.21(1)(4) (2012).

                                     DECISION

       Appellant argues that the warrantless search of his breath violated the Fourth

Amendment because he did not freely and voluntarily consent to the search. The Fourth

Amendment to the United States Constitution and article I, section 10 of the Minnesota

Constitution protect persons from unreasonable searches and seizures.         U.S. Const.

amend. IV; Minn. Const. art. 1, § 10. A breath test is a search. Skinner v. Ry. Labor

Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13 (1989). Generally, a

warrantless search conducted without probable cause is per se unconstitutional. State v.

Dezso, 512 N.W.2d 877, 880 (Minn. 1994). The state bears the burden of proving that an

exception to the warrant requirement applies. Id.

       When the underlying facts supporting a pretrial order on a motion to suppress are

not in dispute, “We may independently review facts that are not in dispute and determine,

as a matter of law, whether the evidence need be suppressed.” State v. Ortega, 770

N.W.2d 145, 149 (Minn. 2009) (citation omitted). When the district court proceeds on

stipulated facts, we review its pretrial order on the motion to suppress de novo. State v.

Craig, 807 N.W.2d 453, 464 (Minn. App. 2011), aff’d 826 N.W.2d 789 (Minn. 2013).


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       Shortly after the appeal was filed in this case, the Minnesota Supreme Court

decided State v. Bernard, 859 N.W.2d 762 (Minn. 2015), and held that a warrantless

search of a driver’s breath is constitutional as a search incident to a valid arrest on

suspicion of driving while impaired. Id. at 772. The Bernard decision is dispositive of

this case. Appellant concedes that “officers had probable cause to believe [he] was

operating a vehicle under the influence of alcohol,” and that he “was properly taken into

custody.” Although appellant argues that he did not freely and voluntarily consent to the

search of his breath, Bernard provides an alternative basis for upholding the warrantless

search. Id. The Bernard decision controls this case because this appeal was pending on

direct review at the time it was decided. See Griffith v. Kentucky, 479 U.S. 314, 322-23,

328, 107 S. Ct. 708, 713, 716 (1987) (holding that a newly declared constitutional rule

applies to all criminal cases pending on direct review or not yet final).

       Appellant attempts to distinguish his case from Bernard. He states that the officer

told appellant that he would be given a “chemical test—not a breath test” noting that

“Bernard authorizes only breath tests under the exception.” While appellant correctly

asserts that the Minnesota Supreme Court has yet to express an “opinion as to whether a

blood or urine test of a suspected drunk driver could be justified as a search incident to

arrest,” appellant was given a breath test, not a blood or urine test. Bernard held that a

warrantless search of a driver’s breath is constitutional as a search incident to a valid

arrest. Bernard, 859 N.W.2d at 767. Therefore, the warrantless search of appellant’s

breath is valid under the search incident to arrest exception. Id. Since Bernard is




                                              4
dispositive of this case we need not reach the issue of whether appellant freely and

voluntarily consented to the search.

       Finally, appellant argues that the sole issue properly before this court is the

consent exception to the warrant requirement because the parties agreed to limit their

argument to this exception at the district court. See Roby v. State, 547 N.W.2d 354, 357

(Minn. 1996) (“[Appellate courts] generally will not decide issues which were not raised

before the district court, including constitutional questions of criminal procedure.”).

However, the district court considered appellant’s assertion that the state agreed to limit

its arguments to the issue of consent. The district court rejected the argument because

both parties addressed other exceptions to the warrant requirement in their memoranda,

and defendant did not object to the state’s memorandum. Our review of the record

supports the district court’s findings that exceptions to the warrant requirement other than

consent were properly before the court.

       Affirmed.




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