                           This opinion will be unpublished and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
                                      A15-1454

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                    Travis Richard Otto,
                                        Appellant.

                                   Filed July 18, 2016
                    Affirmed in part, reversed in part, and remanded
                                    Schellhas, Judge

                              Sherburne County District Court
                                 File No. 71-CR-13-1076

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

Kathleen A. Heaney, Sherburne County Attorney, Dawn R. Nyhus, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges his convictions of first-degree controlled-substance crime and

fourth-degree driving while impaired, arguing that law enforcement detained him without
reasonable, articulable suspicion; impermissibly expanded the scope of the investigatory

detention; and coerced his consent to a warrantless test of his blood. We affirm in part,

reverse in part, and remand.

                                          FACTS

       While driving near Big Lake at about eleven o’clock on a sunny, dry morning in

August 2013, appellant Travis Richard Otto left Highway 10, sheared off a utility pole at

its base, and downed at least one power line. The crash caused the air bags in Otto’s car to

deploy and caused extensive front-end damage to the car, including engine-fluid leaks.1

But Otto was able to drive the car about a quarter-mile to a tavern parking lot. At least one

witness to the crash called police.

       Big Lake Police Officer Cindy Finch located Otto’s car in the lot and saw Otto

getting out of his car. Officer Finch spoke with Otto, who declined medical attention and

told Officer Finch about the crash. A few minutes later, State Patrol Trooper Troy Morrell

arrived, spoke with Officer Finch, and took over the investigation while Officer Finch

remained at the scene. Trooper Morrell questioned Otto about the crash and observed his

demeanor and behavior. As Otto conversed with Trooper Morrell, he moved toward his car

multiple times; Trooper Morrell asked Otto two or three times to “come away” from his

car and finally directed him to “come closer” to Trooper Morrell’s squad car.

       Trooper Morrell asked Otto, “Is there anything on you that I need to be aware of?”

Otto responded that he had his cell phone on him. Trooper Morrell asked Otto whether he


1
 The record is unclear regarding Otto’s ownership of the car, but we refer to the car as
“Otto’s car.”

                                             2
had “anything else in [his] pants pockets or otherwise on [his] person that [Trooper

Morrell] need[ed] to be aware of,” and Trooper Morrell saw “a bulky-type object” in Otto’s

pants pocket and asked Otto about it. Otto answered, “Look, I have drugs.” Trooper Morrell

handcuffed Otto and removed the object—a zippered pouch—from Otto’s pocket. Trooper

Morrell opened the pouch and found what he believed to be methamphetamine; he found

more suspected methamphetamine and a roll of cash in Otto’s other pants pocket. Trooper

Morrell then told Otto that he was under arrest, conducted a pat-down search of Otto, and

put Otto in the back of Trooper Morrell’s squad car. Neither Trooper Morrell nor Officer

Finch gave Otto a Miranda warning.

       While Otto sat in the squad car, Trooper Morrell and Officer Finch searched Otto’s

car. At one point, Otto asked Trooper Morrell to call his father to let him know that he had

been arrested and stated that he would cooperate. Trooper Morrell asked him what he meant

by “cooperate,” and Otto said that he would tell Trooper Morrell where he was coming

from and where he was headed. At a later point, Otto called out and complained that the

squad car was hot and that he was sweating. Trooper Morrell turned up the air conditioning.

Eventually, while the search of Otto’s car continued, Otto complained of chest pains,

saying that his chest hit the steering wheel during the crash, and he offered to tell Trooper

Morrell “where everything [wa]s.” Trooper Morrell called for an ambulance.

       Before the ambulance arrived, Otto told Trooper Morrell that he had two children,

had been sober for seven years until December 2012, had lost his job, had relapsed with

drugs, and was addicted. Trooper Morrell asked Otto when he had used drugs, and Otto

responded that he had used drugs around nine or ten o’clock on the previous night. When


                                             3
the ambulance arrived, medical personnel spoke with Otto as he sat in the squad car. With

Trooper Morrell nearby, Otto told medical personnel that he used methamphetamine

“yesterday.” Medical personnel took Otto to a hospital, where Trooper Morrell later read

the standard implied-consent advisory to Otto. Otto declined to consult with an attorney,

agreed to submit to a blood test, and submitted to the test, which revealed the presence of

methamphetamine in Otto’s blood.

       Respondent State of Minnesota charged Otto with first-degree controlled-substance

crime and fourth-degree driving while impaired (DWI). Otto moved to suppress his

inculpatory statements and “any and all evidence taken as a result of search and seizure.”

The district court conducted a contested omnibus hearing at which Officer Finch, Trooper

Morrell, and Otto testified. The court suppressed Otto’s inculpatory statements to Trooper

Morrell, declined to suppress Otto’s inculpatory statements to medical personnel, declined

to suppress the physical evidence, and “reopen[ed] the hearing” to receive evidence and

argument regarding the warrantless blood test.

       The parties agreed to submit the blood-test issue to the district court on the basis of

documentary evidence and any written submissions. The court declined to suppress the

blood-test evidence. Otto then waived his jury and trial rights and stipulated to aspects of

the state’s case, and the parties submitted the case to the court under Minn. R. Crim. P.

26.01, subd. 4. The court found Otto guilty as charged and sentenced him to 135 months’

imprisonment for first-degree controlled-substance crime and 90 days’ concurrent

confinement for fourth-degree DWI.

       This appeal follows.


                                              4
                                     DECISION

       “When reviewing a district court’s pretrial order on a motion to suppress evidence,

the district court’s factual findings are reviewed under a clearly erroneous standard. But

legal determinations, such as whether there was a seizure and, if so, whether that seizure

was unreasonable, are reviewed de novo.” State v. Eichers, 853 N.W.2d 114, 118 (Minn.

2014) (citation omitted), cert. denied, 135 S. Ct. 1557 (2015). “[Appellate courts] accept

the district court’s factual findings unless they are clearly erroneous.” State v. Smith, 814

N.W.2d 346, 350 (Minn. 2012). “Findings of fact are clearly erroneous if, on the entire

evidence, [the reviewing court is] left with the definite and firm conviction that a mistake

occurred.” State v. Diede, 795 N.W.2d 836, 846–47 (Minn. 2011). “Deference must be

given to the district court’s credibility determinations.” State v. Klamar, 823 N.W.2d 687,

691 (Minn. App. 2012). “We will not reverse a correct decision by the district court simply

because we disagree with its reasoning.” State v. Eichers, 840 N.W.2d 210, 216 (Minn.

App. 2013), aff’d on other grounds, 853 N.W.2d 114 (Minn. 2014).

Investigatory detention

       Otto challenges the district court’s conclusion that his investigatory detention was

constitutional, first arguing that law enforcement did not have reasonable, articulable

suspicion to stop his car. This argument is misguided because law enforcement did not stop

Otto’s car: it already was parked in the tavern’s lot when Officer Finch located it,

approached Otto, and asked him about the crash, and it still was parked when Trooper

Morrell arrived on the scene and began questioning him about the crash.




                                             5
       “[C]ourts generally have held that it does not by itself constitute a seizure for an

officer to simply walk up and talk to a person standing in a public place or to a driver sitting

in an already stopped car.” State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); see

also Klamar, 823 N.W.2d at 693 (concluding that trooper’s approach of already-stopped

vehicle to check welfare of occupants was not seizure). Here, having been alerted to a

serious crash involving Otto’s car, Officer Finch and Trooper Morrell were entitled to

approach the car in a commercial parking lot to check the welfare of its occupants and to

offer help if necessary. Cf. Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628 (Minn.

App. 1984) (stating that “an officer has not only the right but a duty to make a reasonable

investigation of vehicles parked along roadways to offer such assistance as might be needed

and to inquire into the physical condition of persons in vehicles” (citing Vohnoutka, 292

N.W.2d at 756)). Because Otto was not seized by Officer Finch’s or Trooper Morrell’s

initial contact with him, we need not consider whether that contact was justified by

reasonable, articulable suspicion of criminal activity.

       But we conclude that Trooper Morrell’s subsequent verbal attempts to restrict Otto’s

physical movements in the parking lot constituted an investigatory detention—i.e., a

temporary seizure of Otto’s person. See State v. Hanson, 504 N.W.2d 219, 220 (Minn.

1993) (stating that a seizure occurs when, “looking at all of the facts, the conduct of the

police would communicate to a reasonable person in the defendant’s physical

circumstances an attempt by the police to capture or seize or otherwise to significantly

intrude on the person’s freedom of movement”); see also Klamar, 823 N.W.2d at 693

(concluding, in case involving welfare check, that seizure did not occur until trooper


                                               6
ordered driver to exit vehicle and approach trooper’s vehicle). We therefore consider

whether reasonable, articulable suspicion of criminal activity justified that seizure. See

Smith, 814 N.W.2d at 350 (“[Appellate courts] review de novo a district court’s

determination of reasonable suspicion of illegal activity.”).

       Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), a police officer may

              temporarily seize a person to investigate that person for
              criminal wrongdoing if the officer reasonably suspects that
              person of criminal activity. Reasonable suspicion must be
              based on specific, articulable facts that allow the officer to be
              able to articulate at the omnibus hearing that he or she had a
              particularized and objective basis for suspecting the seized
              person of criminal activity. . . . A hunch, without additional
              objectively articulable facts, cannot provide the basis for an
              investigatory stop.

Diede, 795 N.W.2d at 842–43 (quotations and citations omitted). In this case, the district

court found that

              [b]ased on [Trooper Morrell’s] experience, [Otto]’s
              explanation regarding . . . why he hit a [utility] pole appeared
              inconsistent and suggested [Otto] may have been under the
              influence. Further, [Otto]’s body movement including moving
              to and from [his car] during his discussions with Officer Finch
              and Trooper Morrell indicated to Trooper Morrell, based on his
              experience, that [Otto] may be concerned about law
              enforcement discovering contraband in [his car]. In addition,
              [Otto] appeared nervous and was slow to react.

These findings are supported by Trooper Morrell’s testimony, which the court expressly

found credible. Otto does not specifically challenge the court’s findings but points to

portions of Trooper Morrell’s testimony that purportedly show that Trooper Morrell acted

on a bare “hunch” rather than on the observable facts identified in other portions of the

testimony.


                                             7
       “To be reasonable, the basis of the officer’s suspicion must satisfy an objective,

totality-of-the-circumstances test.” Smith, 814 N.W.2d at 351; see also State v. Jackson,

742 N.W.2d 163, 179 (Minn. 2007) (“An individual officer’s subjective state of mind is

not the relevant consideration.”). The test is “whether the facts available to the officer at

the moment of the seizure would warrant a man of reasonable caution in the belief that the

action taken was appropriate.” Smith, 814 N.W.2d at 351−52 (quotations omitted). Here,

Trooper Morrell had about two decades of law-enforcement experience, which was “heavy

into DWI enforcement” and included “hundreds” of impaired-driving investigations, and

he had training regarding standardized field-sobriety testing and indicia of impairment by

alcohol or controlled substances. He also had conducted investigations, numbering

“possibly in the hundreds,” that led to charges of controlled-substance crime. Regardless

of Trooper Morrell’s subjective state of mind, Otto’s demeanor and behavior would have

led an officer with Trooper Morrell’s training and experience to reasonably suspect Otto

of criminal activity related to controlled substances. We conclude that reasonable,

articulable suspicion supported Otto’s investigatory detention.

       Otto also argues that Trooper Morrell’s questions regarding items on Otto’s person

were equivalent to a Terry frisk that lacked the required officer-safety justification or

otherwise impermissibly expanded the scope of the investigatory detention. Otto is correct

that a Terry frisk is justified by a reasonable, articulable suspicion that the suspect is armed

and dangerous. State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014). But he offers no

support for his conflation of a Terry frisk—that is, “a carefully limited search of the outer

clothing to discover weapons which might be used against the officer,” State v. Wiggins,


                                               8
788 N.W.2d 509, 513 (Minn. App. 2010) (quotation omitted), review denied (Minn.

Nov. 23, 2010)—and open-ended verbal questions regarding items on a suspect’s person.

Because Trooper Morrell’s questions were a reasonable and incremental step in his

investigation of suspected criminal activity related to controlled substances, and regardless

of Trooper Morrell’s subjective motivation for asking the questions, the questions did not

impermissibly expand the scope of Otto’s investigatory detention.

Warrantless blood test

       Otto challenges the warrantless test of his blood, acknowledging that he verbally

and physically consented to the test but asserting that Trooper Morrell coerced his consent

by “false[ly] threat[ening]” him that withholding consent is a crime and by asking him for

consent “in the radiology room of a hospital while Otto was receiving treatment for injuries

sustained during a major traffic accident.” Otto also notes that he did not consult with an

attorney before giving consent and claims a causal link between Trooper Morrell’s

elicitation of inadmissible inculpatory statements from Otto regarding his drug use and

Trooper Morrell’s later success in obtaining Otto’s consent to a test of his blood for drugs.

              Taking [a] blood . . . sample[] from someone constitutes a
              “search” under the Fourth Amendment. But police do not need
              a warrant if the subject of the search consents.

                     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.

State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013) (citations omitted). The voluntariness

of a defendant’s consent to chemical testing is assessed under “the totality of the

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


                                             9
and what was said and how it was said.” Id. at 569 (quotation omitted). “The question

whether a consent to a search was in fact ‘voluntary’ or was the product of duress or

coercion, express or implied, is a question of fact.” Diede, 795 N.W.2d at 846 (quotation

omitted).

       Here, the district court considered Otto’s arguments and found that “the taking of

[Otto]’s blood was consensual as part of the Implied Consent statutory scheme.” In an

opinion issued after the district court’s ruling, the United States Supreme Court held that a

state may not constitutionally criminalize a driver’s refusal to submit to a warrantless blood

test, even where the driver was arrested lawfully for DWI, absent case-specific exigent

circumstances justifying the state’s failure to seek a search warrant. Birchfield v. North

Dakota, No. 14-1468, 2016 WL 3434398, at *12, *25–27 (U.S. June 23, 2016). The

implied-consent advisory that Trooper Morrell read to Otto therefore was partially

inaccurate insofar as it conveyed to Otto that withholding consent to a warrantless blood

test is a crime. See id. at *27 (noting that defendant “submitted to a blood test after police

told him that the law required his submission,” labeling as “erroneous” state court’s

assumption that state permissibly could compel warrantless blood test, and characterizing

as “partial[ly] inaccura[te]” advisory given to defendant).

       The partial inaccuracy of the implied-consent advisory is one circumstance in the

totality of the circumstances faced by Otto when he agreed to take a blood test. See id.

(noting that state court “held that [defendant]’s consent was voluntary on the erroneous

assumption that the State could permissibly compel both blood and breath tests,” reiterating

that “voluntariness of consent to a search must be determined from the totality of all the


                                             10
circumstances,” and directing state court “to reevaluate [defendant]’s consent given the

partial inaccuracy of the officer’s advisory” (quotation omitted)); cf. Brooks, 838 N.W.2d

at 569 (stating that the totality of the circumstances includes “what was said and how it

was said” (quotation omitted)). Yet the partial inaccuracy of the advisory was not

considered by the district court, which lacked the guidance provided by the recent

Birchfield opinion.

       We therefore reverse the district court’s judgment as to Otto’s DWI conviction and

sentence, and we remand to the district court to reassess the voluntariness of Otto’s consent

to the blood test in light of all the relevant circumstances, including the partial inaccuracy

of the advisory, and to consider the applicability, if any, of the good-faith exception to the

exclusionary rule. See Birchfield, 2016 WL 3434398, at *27 & n.9 (vacating judgment of

state court, remanding for state court “to reevaluate [defendant]’s consent given the partial

inaccuracy of the officer’s advisory,” and noting that state court “will have to address

whether the evidence obtained in the search must be suppressed” if state court finds on

remand that defendant did not voluntarily consent to blood test).

       Affirmed in part, reversed in part, and remanded.




                                             11
