                          This opinion will be unpublished and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
                                     A14-0300

                                   State of Minnesota,
                                        Appellant,

                                           vs.

                                    Becky Ann Rice,
                                      Respondent.

                                 Filed August 11, 2014
                                       Affirmed
                                   Bjorkman, Judge


                             Hennepin County District Court
                                File No. 27-CR-13-7052

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

Paul D. Baertschi, Assistant Maple Grove Attorney, Minneapolis, Minnesota (for
appellant)

Peter J. Timmons, Minneapolis, Minnesota (for respondent)

         Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Chutich,

Judge.

                         UNPUBLISHED OPINION

BJORKMAN, Judge

         Appellant State of Minnesota challenges the district court’s pretrial order

suppressing evidence seized from respondent’s home, arguing that the district court
clearly erred in finding that respondent’s husband did not voluntarily consent to a search.

We affirm.

                                         FACTS

       While on routine patrol on January 11, 2013, Sergeant Daniel Wilson of the Maple

Grove Police Department received a dispatch informing him that three callers reported

that a white Chevy SUV was driving erratically and ran over a road sign, and that the

driver threw a champagne bottle out the window. One caller reported seeing the vehicle

pull into a garage, and all three callers identified the license-plate number. Sergeant

Wilson ran the reported plate and arrived at the registered address, which matched the

location where the caller saw the vehicle enter a garage. Respondent Becky Ann Rice’s

husband answered the door, and Sergeant Wilson asked if anyone at the house owned a

white Chevy SUV. Husband said yes, and stated that Rice had probably been driving it.

Sergeant Wilson asked if Rice was home; the parties dispute how husband responded.1

Then, the following exchange ensued:

              SERGEANT WILSON: Ok, I’ll be honest with you. I’m
              following up on a traffic complaint. Ok? I have reason to
              believe that the vehicle’s here. OK? Somebody who just
              called watched the vehicle arrive home. So, is that correct or
              is that not correct? If you’re lying to me.

              HUSBAND: I, I have no knowledge . . . .

              SERGEANT WILSON: Hear me out, if you’re lying to me,
              OK, I will charge you criminally with lying to me. Ok, cause
              this is a criminal investigation right now.

1
  The dash-mounted camera in the trooper’s vehicle recorded the encounter, which lasted
approximately one minute and thirty seconds. Husband’s response to Sergeant Wilson’s
inquiry regarding Rice’s whereabouts is muffled in the audio recording.

                                            2
              HUSBAND: Yeah.

              SERGEANT WILSON: Is she home or is she not?

              HUSBAND: She is not home.

              SERGEANT WILSON: Ok. Ok. Is the car in the garage?

              HUSBAND: I don’t know [voice fades . . . go check right
              now . . . unintelligible].

              SERGEANT WILSON: Can we, can we OK what, what is
              your wife’s name?

              HUSBAND: Becky.

              SERGEANT WILSON: Ok. Can we take a look and see if
              the car is in the garage? I need to see if there is damage to it.

              HUSBAND: Oh, sure.

              SERGEANT WILSON: OK, can I come in with you?

              HUSBAND: Yeah.

              SERGEANT WILSON: Ok.

Husband led Sergeant Wilson through the house and into the attached garage, where they

found the SUV and Rice slumped over in the driver’s seat. Sergeant Wilson arrested

Rice for driving while under the influence of alcohol.

       Rice moved to suppress the evidence obtained from the garage on the grounds that

husband’s consent to the search was not voluntary. The district court granted Rice’s

motion, finding that Sergeant Wilson’s threat to charge husband with a crime was

coercive and that Sergeant Wilson obtained husband’s consent only in response to the

threat of potential arrest. The state appeals.


                                                 3
                                     DECISION

       The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures and, with few exceptions, warrantless searches are unreasonable. U.S. Const.

amend. IV; Minn. Const. art. I, § 10; State v. Flowers, 734 N.W.2d 239, 248 (Minn.

2007). But a warrant is not necessary if a person voluntarily consents to a requested

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 demonstrating consent was voluntarily given.

State v. Lussier, 770 N.W.2d 581, 586 (Minn. App. 2009), review denied (Minn. Nov. 17,

2009). Whether consent is voluntary under the totality of the circumstances is a question

of fact, which we review for clear error. State v. Othoudt, 482 N.W.2d 218, 222 (Minn.

1992).2 Findings of fact are clearly erroneous if “we are left with the definite and firm

conviction that a mistake occurred.” State v. Diede, 795 N.W.2d 836, 846-47 (Minn.

2011).3 If there is reasonable evidence to support the district court’s findings, we will not

disturb them. State v. Rhoads, 813 N.W.2d 880, 885 (Minn. 2012).



2
  It is undisputed that husband had authority to consent to a search because he resided
with Rice on the date in question. See State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992)
(finding that a third party who possesses common authority over the premises may
consent to a search).
3
  To prevail in a pretrial appeal, the state must clearly and unequivocally show that the
district court erred “and that the error, unless reversed, will have a critical impact on the
outcome of the prosecution.” State v. Gradishar, 765 N.W.2d 901, 902 (Minn. App.
2009) (quotation omitted). Critical impact is shown “where the lack of the suppressed
evidence significantly reduces the likelihood of a successful prosecution.” State v. Ault,
478 N.W.2d 797, 799 (Minn. 1991). Respondent does not dispute that this requirement is
satisfied. Because the district court’s ruling reduces the likelihood of a successful
prosecution, we agree the critical-impact requirement is met.

                                             4
       The totality of the circumstances includes “the nature of the encounter, the kind of

person the [consenter] is, and what was said and how it was said.” State v. Dezso, 512

N.W.2d 877, 880-81 (Minn. 1994) (holding consent to search wallet was not voluntary

where officer stopped defendant’s vehicle on a highway at night, leaned over the

defendant to look into his wallet, persistently questioned defendant about contents of his

wallet, and did not tell defendant he had the right to refuse to consent). Consent is

voluntary if “a reasonable person would have felt free to decline the officer[’s] requests

or otherwise terminate the encounter.”     Id. at 880 (alteration in original) (quotation

omitted); see also State v. Harris, 590 N.W.2d 90, 103 (Minn. 1999) (holding that

consent to search defendant was voluntary where two plainclothes officers entered a bus,

announced their intention to question all passengers, told defendant that search was

consensual, and asked to search him and his bag, because defendant unequivocally gave

permission for the search, assisted in the search, and was aware the encounter was

consensual). But “[m]ere acquiescence on a claim of police authority or submission in

the face of a show of force” is not voluntary consent. State v. Howard, 373 N.W.2d 596,

599 (Minn. 1985); see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct.

2041, 2047 (1973) (stating that a person is coerced when “his will has been overborne

and his capacity for self-determination critically impaired” (quotation omitted)); Dezso,

512 N.W.2d at 880 (“[I]t 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.”).




                                            5
       The state contends that the district court clearly erred by finding husband’s

consent to the search was coerced, arguing that Sergeant Wilson’s conduct was

reasonable because he did not threaten to charge husband with a crime for refusing to

permit a search or overtly assert his authority as an officer. We are not persuaded. First,

the record supports the district court’s finding that husband consented to the search only

in response to the threat of potential arrest. The recording reveals that the request to

search came within 15 seconds of Sergeant Wilson’s two references to husband’s

possible lying and threat to criminally charge husband if he was doing so. Husband

testified: “I felt that if I did not let him in and if something did happen to [Rice] that I

would be charged with . . . obstructing his investigation.” Husband was not told that he

could withhold consent and stated that he let Sergeant Wilson in the garage because he

felt that he would otherwise be arrested.

       Second, while Sergeant Wilson did not brandish his weapon during the brief

discussion, the record shows that he did assert his authority. Sergeant Wilson was in

uniform and carried a gun. He twice asked husband if he could enter the garage to look

for Rice’s vehicle. Cf. State v. George, 557 N.W.2d 575, 581 (Minn. 1997) (concluding

consent was involuntary where repeated questioning by two troopers created

“intimidating circumstances” that led the defendant to acquiesce to police authority);

Diede, 795 N.W.2d at 847-48 (concluding that defendant did not voluntarily consent to

search when she initially refused to consent but acquiesced to search after multiple,

persistent requests from officers). And the officer’s language, although respectful, was

persistent and authoritative during the encounter. Cf. Dezso, 512 N.W.2d at 881 (finding


                                             6
consent involuntary when given in response to officer’s “official and persistent”

questioning despite fact that questions were couched in nonauthoritative language). In

short, the circumstances of this encounter support the district court’s determination that

Sergeant Wilson was “overly zealous in the execution of his duties,” such that husband

did not perceive that he could refuse the requested search.

       The district court acknowledged that this is a close case, and was troubled by the

discrepancy between the recording and Sergeant Wilson’s testimony about whether

husband told Sergeant Wilson that Rice was home. But ultimately, the district court

carefully reviewed the evidence, expressly evaluated the testimony of the witnesses, and

found that “the totality of the circumstances make clear that Mr. Rice’s acquiescence to

the search was obtained only in response to the threat of potential arrest.” We defer to a

district court’s credibility determinations. See Miles v. State, 840 N.W.2d 195, 201

(Minn. 2013). And the fact that the record may support different findings does not mean

that a district court’s finding is clearly erroneous. See Robinson v. State, 567 N.W.2d

491, 495 (Minn. 1997) (holding that factual finding on “conflicting testimony” was not

clearly erroneous).

       On this record, we conclude that the district court did not clearly err by finding

that husband’s consent to the search of his home was not voluntary. Accordingly, the

district court did not err by suppressing the evidence.

       Affirmed.




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