                        This opinion will be unpublished and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
                                   A14-0363

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                                John Alvin Lindquist,
                                    Respondent.

                                Filed August 4, 2014
                                      Reversed
                                 Halbrooks, Judge


                            Ramsey County District Court
                             File No. 62SU-CR-09-2153

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

Robb L. Olson, Heather Monnens, White Bear Lake City Prosecutors, Geck Duea &
Olson, PLLC, White Bear Lake, Minnesota (for appellant)

Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
Minnesota; and

Sharon R. Osborn, Osborn Law Office, L.L.C., Minneapolis, Minnesota (for respondent)



      Considered and decided by Smith, Presiding Judge; Halbrooks, Judge; and

Hudson, Judge.
                         UNPUBLISHED OPINION

HALBROOKS, Judge

       In this pretrial appeal, the state challenges the suppression of evidence from

respondent’s breath test, arguing that the state has met its burden of proving that

respondent freely and voluntarily consented to the search under the totality of the

circumstances.1 We reverse.

                                          FACTS

       On February 22, 2009, at 5:15 a.m., White Bear Lake patrol officers were advised

of a theft in progress involving two suspects in a white van and a white pickup truck with

identified license-plate numbers. Officer Burth located both vehicles and pulled over the

pickup truck, which was driven by respondent John Alvin Lindquist. During the stop,

Officer Burth noted a strong odor of alcohol and observed that Lindquist’s eyes were

bloodshot and watery and his speech was slurred. In response to a question, Lindquist

replied that he had had “a few beers.” A preliminary breath test (PBT) resulted in a

reading of .178.

       Officer (Sergeant by the date of the hearing) Henry, who had arrived to assist,

placed Lindquist under arrest and drove him to the White Bear Lake police station.

Sergeant Henry confirmed that he read the standard implied-consent advisory to

Lindquist “word for word,” and that he does not believe that he said anything else to

1
   After a contested omnibus hearing, the district court denied Lindquist’s motion as it
related to the propriety of the initial investigatory stop, the basis to detain Lindquist for
theft, the expansion of the stop to driving while impaired, the basis to request a
preliminary breath test, and the basis to invoke the implied-consent advisory and request
a chemical test.

                                             2
Lindquist during the implied-consent process. Lindquist responded that he understood

the advisory, and Sergeant Henry noted this on the advisory form, which was admitted as

an exhibit. Lindquist made a telephone call and spoke with an attorney for approximately

five minutes, after which he agreed to submit to a test. The implied-consent advisory

process began at 5:55 a.m. and ended at 6:06 a.m.

      Sergeant Clark testified about his investigation of the theft report and his

recollection of the implied-consent process, which he had observed from the dispatch

center. The district court asked Sergeant Clark to describe the booking room in which the

implied-consent process took place, and he described it as “a concrete block room with

green doors.” The district court later asked detailed questions about how many doors

there were and whether they were open or closed. The district court also asked how

many officers were in the booking room, whether the officer reading the advisory was in

uniform, whether the officer was standing or sitting, whether the officer had his sidearm,

what his tone was, how close the officer was to Lindquist, and whether there was any

physical contact with Lindquist.

      Sergeant Clark gave detailed answers about the room setup, stated that the officers

were in uniform but would not have been armed while in the booking room, and testified

that Lindquist must have been non-combative because otherwise Clark would have been

in the room assisting. Sergeant Clark did not recall seeing any physical contact, and

regarding tone, he stated that “nothing jumps out at me as being unusual.” On cross-

examination, Sergeant Clark testified that he did not “know” if there was any coercion

during the implied-consent process but that he “didn’t recall seeing any.” Although


                                            3
police reports indicate that recordings of the implied-consent process were made and

saved, no recording was played for the district court.2

       Lindquist testified with respect to the theft investigation only, after the district

court advised counsel that if Lindquist testified regarding the consent issue, it would

“open[] the door for the [s]tate to ask those same questions.” The prosecutor noted that

under Minn. R. Evid. 611(b),3 cross-examination of a defendant in a criminal case is not

limited to the scope of direct examination. The district court rejected this interpretation

without explanation, and stated, “we’re not going to ask questions about the implied

consent advisory or consent or coercion, what was said to get him to take the—or to

provide the evidentiary sample.” The state does not challenge this ruling on appeal.

       The district court granted Lindquist’s motion to suppress the evidence of his

breath test.4 In its order, the district court identified 20 factors bearing on its analysis of

indicia of consent and noted that the record was silent on many of the factors. The

district court ruled that the state did not meet its burden to prove by a preponderance of

the evidence that Lindquist’s consent was freely and voluntarily given. This appeal

follows.


2
   We note that the hearings in this matter were held nearly five years after Lindquist’s
arrest.
3
   “An accused who testifies in a criminal case may be cross-examined on any matter
relevant to any issue in the case, including credibility.” Minn. R. Evid. 611(b).
4
  The district court denied Lindquist’s motion as it relates to the propriety of the initial
investigatory stop, the basis to detain Lindquist for theft, the expansion of the stop to
investigate if Lindquist was driving while impaired, the basis to request a PBT, and the
basis to invoke the implied-consent advisory and request a chemical test.

                                              4
                                     DECISION

       When the state appeals a pretrial order suppressing evidence, it must “clearly and

unequivocally show both that the [district] court’s order will have a critical impact on the

state’s ability to prosecute the defendant successfully and that the order constituted

error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted). The state

must satisfy the critical-impact test in order for this court to have jurisdiction. State v.

Baxter, 686 N.W.2d 846, 850 (Minn. App. 2004). Critical impact is shown when “the

lack of the suppressed evidence significantly reduces the likelihood of a successful

prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). The state need not

“show that conviction is impossible after the pretrial order—only that the prosecution’s

likelihood of success is seriously jeopardized.” State v. Underdahl, 767 N.W.2d 677, 683

(Minn. 2009).

       Suppressed evidence that is unique in nature and quality is more likely to meet the

critical-impact test. In Re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999). We

conclude that the breath-test evidence here is unique in nature and quality and that,

without this evidence, the state’s chances of successfully prosecuting Lindquist for

driving while impaired are significantly reduced. The critical-impact test is therefore

satisfied. Accordingly, we address the merits of the state’s claim.

       The state argues that the district court erred by suppressing the evidence of

Lindquist’s breath test. “When reviewing a district court’s pretrial order on a motion to

suppress evidence, ‘we review the district court’s factual findings under a clearly

erroneous standard and the district court’s legal determinations de novo.’”        State v.


                                             5
Gauster, 752 N.W.2d 496, 502 (Minn. 2008) (quoting State v. Jordan, 742 N.W.2d 149,

152 (Minn. 2007).

      Collection and testing of a person’s breath constitutes a search under the Fourth

Amendment to the United States Constitution, and therefore requires a warrant or an

exception to the warrant requirement. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602,

616-17, 109 S. Ct. 1402, 1412-13 (1989). The exigency created by the dissipation of

alcohol in the body is insufficient to dispense on a per se basis with the warrant

requirement. Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013). But a warrantless

search is valid if the person voluntarily consents to the search. State v. Brooks, 838

N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).

      The state bears the burden of showing by a preponderance of the evidence that the

defendant freely and voluntarily consented. Id. A driver’s decision to take a test is not

coerced or extracted “simply because Minnesota has attached the penalty of making it a

crime to refuse the test.” Id. at 570. Under Brooks, the issue of consent must be

evaluated based on the totality of the 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 568-69 (quoting State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994)).

      The facts of this case are similar to those in Brooks. In Brooks, the appellant was

arrested three different times for driving under the influence, was read the implied-

consent advisory each time, spoke with an attorney each time, and submitted to testing

each time. 838 N.W.2d at 570. Based on these facts, and the absence of any evidence of

coercion in the record, our supreme court held that the appellant freely and voluntarily


                                           6
consented in each instance.     Id. at 572.   The supreme court specifically noted that

“nothing in the record suggests that Brooks was coerced in the sense that his will had

been overborne and his capacity for self-determination critically impaired.” Id. at 571

(quotation omitted).

       Here, as in Brooks, “the nature of the encounter, the kind of person [Lindquist] is,

and what was said and how it was said” indicate that Lindquist freely and voluntarily

consented to take the breath test. See id. at 569 (quotation omitted). Officer Burth came

to suspect that Lindquist was driving under the influence when he pulled him over to

investigate a theft and then noticed a strong odor of alcohol, bloodshot and watery eyes,

and slurred speech. After Lindquist stated that he had had a few beers and he failed a

PBT, he was arrested and taken to the White Bear Lake police station.

       Sergeant Henry read the implied-consent advisory form to Lindquist that

explained that Minnesota law required him to submit to a test, that refusing the test was a

crime, and that he had the right to speak with an attorney. Lindquist made a phone call

and spoke with an attorney for five minutes. He then agreed to take the breath test. That

Lindquist “consulted with counsel before agreeing to take [the] test reinforces the

conclusion that his consent was not illegally coerced.” See id. at 571.

       Lindquist’s motion papers do not mention coercion other than to argue that

criminal penalties for refusal are coercive as a matter of law. Because Lindquist did not

make this argument in his motion, the state did not know it would be an issue at the

omnibus hearing. The defense is required to give sufficient notice to the state of the

grounds advanced for suppression so that the state has a full and fair opportunity to meet


                                              7
its burden. State v. Needham, 488 N.W.2d 294, 296-97 (Minn. 1992). And at the

hearing, Lindquist did not testify or argue that he was coerced into taking the breath test.

Nor is there any evidence in the record that Lindquist “‘was coerced in the sense that his

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

Brooks, 838 N.W.2d at 571.

       The district court nevertheless determined that the record as developed did not

permit a determination of consent.

              [T]he State did not inquire about the particular circumstances
              of [Lindquist’s] consent beyond the most general aspects.
              The record shows that Sergeant Henry read the Implied
              Consent Advisory to [Lindquist] verbatim, that [Lindquist]
              had the opportunity to speak with an attorney, and that
              [Lindquist] signed the Implied Consent Advisory. Sergeant
              Henry also testified that [Lindquist] requested to speak with
              an attorney and did so for approximately five minutes.

The district court identified 20 factors that it considered in evaluating whether

Lindquist’s consent was freely and voluntarily given, and noted that the record was

lacking on many of them.

              The record contains no additional facts regarding
              [Lindquist’s] awareness or familiarity with the legal system,
              the length of [Lindquist’s] detention, the number of police
              officers present while speaking with [Lindquist] before
              obtaining his consent, whether all of the officers present were
              in uniform or civilian clothes, whether any of the officers
              were armed, and if so, how they were armed, whether any of
              the officers used threats, physical intimidation, yelling or
              pounding, or actual force to obtain consent, the complete
              content of what the officers present said to [Lindquist],
              whether the officers made promises or misrepresentations in
              speaking with [Lindquist], the manner and tone in which the
              officers spoke to [Lindquist], whether [Lindquist] stood by
              silently or objected to the search, whether [Lindquist] asked


                                             8
              any questions before giving his consent, and where the
              officers were situated with respect to [Lindquist], including
              how close the officers were to [Lindquist] when speaking to
              him.

The district court then ruled that the state had not met its burden of proving that Lindquist

was not coerced into submitting to the breath test.

       We conclude that the district court’s expansion of the analytical framework set

forth by our supreme court in Brooks is unwarranted and improper in the context of this

case. Minnesota courts are obligated to follow the guidance provided by our supreme

court, and this case fits squarely within the guidance provided in Brooks. No evidence

suggests that Lindquist was coerced to submit to the breath test, and the record reflects

that the police officers followed the procedures established under the implied-consent

law. Given the nearly five-year gap between this DWI arrest and the omnibus hearing, it

is understandable why the witnesses were unable to give definite responses to inquiries

such as whether the officer was standing or sitting when he read the implied-consent

advisory and the distance between the officer and Lindquist in the booking room.

       From a procedural and factual standpoint, this DWI case is not unusual.

Accordingly, we conclude that the district court erred by applying its own indicia-of-

consent standard instead of relying on the guidance provided by our supreme court in

Brooks. Consent is determined based on the totality of the circumstances of each case.

But when the facts of a case are nearly identical to those in Brooks, it is error for a district

court to substitute its own criteria for the factors identified in Brooks in applying this

standard.



                                               9
       Applying the Brooks guidance to the facts here, the state proved by a

preponderance of the evidence that Lindquist freely and voluntarily consented to the

breath test. When consent to a breath test is given freely and voluntarily, a search

warrant is not required. See id. at 568. The district court erred in suppressing the results

of respondent’s breath test when the totality of the circumstances demonstrates that

respondent freely and voluntarily consented to the search.

       Reversed.




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