                         This opinion will be unpublished and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
                                    A14-0874

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                Charles Edward Gorgol,
                                      Appellant.

                                 Filed July 13, 2015
                                       Affirmed
                                     Smith, Judge
                 Concurring in part, dissenting in part, Hudson, Judge

                              Clay County District Court
                               File No. 14-CR-13-2876

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

Brian J. Melton, Clay County Attorney, Johnathan R. Judd, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Bridget Sabo, Assistant Public
Defender, St. Paul, Minnesota; and

W. Anders Folk, Ruth Shnider, Stinson Leonard Street, LLP, Special Assistant Public
Defenders, Minneapolis, Minnesota (for appellant)

         Considered and decided by Hudson, Presiding Judge; Kirk, Judge; and Smith,

Judge.
                          UNPUBLISHED OPINION

SMITH, Judge

          We affirm the district court’s denial of appellant Charles Gorgol’s suppression

motion because the district court did not clearly err by finding that Gorgol voluntarily

opened his door to talk to police. In addition, the district court did not plainly err by

admitting the recording of Gorgol’s statements to police in violation of Miranda when

defense counsel failed to object. And Gorgol did not meet his burden on his ineffective-

assistance-of-counsel claim because he did not demonstrate that the erroneously admitted

statements affected the verdict.

                                          FACTS

          On August 24, 2013, a toll-booth operator reported a possibly impaired driver to

Moorhead police. The toll-booth operator stated that the driver almost fell out of his car

while attempting to pay the toll, had slurred speech, and nearly hit a portable toilet as he

drove away. The toll-booth operator gave a description of the driver and the car to

police.     Around 11:50 p.m., officers were dispatched to the toll bridge and took a

statement from the operator, which included the make and license plate of the driver’s

car.

          The officers proceeded to the address where the car was registered, arriving

approximately 10 minutes later, around midnight.         The address was an apartment

complex, at which the officers found a car matching the description and plate information

given by the toll-booth operator. One officer noted that he had been at the apartment

complex before on a domestic-dispute call. As the officers approached the apartment


                                              2
complex, they heard a male voice shouting inside the apartment. The man was loudly

yelling, “[Y]ou’re a stupid bitch,” and “things of that nature” at another person inside.

       An officer knocked on the door of the apartment. After a woman asked, “Who is

it?,” the officer responded, “Police Department.” When there was no further response,

the officer knocked and identified himself again. Then, a male asked, “What do you

want?” The officer replied, “Open the door so we can talk with [you].” Following an

inaudible reply, the officer repeated himself. Then, a person later identified as Gorgol

opened the door.

       The officers asked Gorgol if they could come in, if he would step outside the

apartment, or if they could talk to other people in the home. Gorgol denied all the

officers’ requests. The officers immediately noticed indicia of intoxication, including the

odor of alcoholic beverage on his breath, bloodshot and watery eyes, slurred speech, and

poor balance. Gorgol also admitted that he was intoxicated. In addition, Gorgol matched

the description given by the toll-booth operator and was the only male in the apartment.

The officers arrested Gorgol on suspicion of driving while impaired.

       After transporting Gorgol to the county jail, the arresting officer read him the

implied-consent advisory. During the reading of the advisory, Gorgol admitted that he

was drunk and that he had talked to the toll-booth operator earlier, but denied that he had

been driving when he was drunk. Gorgol eventually agreed to take a breath test, so

another officer administered the test.     During the test, Gorgol complained that the

arresting officer had arrested him when he was not actually driving. The testing officer

then asked Gorgol to “tell [him] what happened” because he was the arresting officer’s


                                             3
supervisor.   Gorgol stated that he had been drinking at a friend’s house with his

girlfriend, who owned the car, but that she had driven him home. The breath test

measured Gorgol’s alcohol concentration at .19.

       The state charged Gorgol with two counts of felony driving while impaired (DWI)

for operating a motor vehicle while under the influence of alcohol and for having an

alcohol concentration of at least .08 within two hours of operating a motor vehicle. At

trial, the district court denied Gorgol’s motion to suppress evidence resulting from an

unreasonable search or seizure because it found, based on a recording of the interaction,

that Gorgol voluntarily opened his door to talk to the police. In addition, the district court

admitted a recording of Gorgol being read the implied-consent advisory and taking the

breath test. Gorgol did not object to the admission of the implied-consent-advisory

recording.

       A jury found Gorgol guilty on both counts.

                                      DECISION

                                              I.

       Gorgol first argues that he was seized when he opened the door to his home and

that the district court erred by denying his motion to suppress all evidence derived from

his seizure. The district court found that Gorgol voluntarily opened his door when he

knew the police were outside and wanted to talk to him. Gorgol argues that he was

merely acquiescing to a police command.

       When reviewing pretrial orders on motions to suppress evidence, we review the

district court’s factual findings for clear error, State v. Lemieux, 726 N.W.2d 783, 787


                                              4
(Minn. 2007), and its decision whether to suppress the evidence as a matter of law, State

v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

       The United States and Minnesota Constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend IV; Minn. Const. art. I, § 10. A warrantless seizure in a

home is per se unreasonable absent an exception to the warrant requirement. Payton v.

New York, 445 U.S. 573, 586, 589-90, 100 S. Ct. 1371, 1380, 1381-82 (1980). Any

evidence acquired as a result of an unconstitutional seizure must be suppressed. Wong

Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 416 (1963); State v. Askerooth,

681 N.W.2d 353, 370 (Minn. 2004). A warrantless seizure that was “initiated at the

threshold of a suspect’s residence” is not prohibited “if the suspect voluntarily opens the

door.” State v. Howard, 373 N.W.2d 596, 598 (Minn. 1985). But an encounter is not

voluntary if police command a suspect to talk with them in such a way that a reasonable

person would feel that the command cannot be refused. State v. Dezso, 512 N.W.2d 877,

880 (Minn. 1994) (citing Florida v. Bostick, 501 U.S. 429, 435-36, 111 S. Ct. 2382, 2387

(1991)).

       “The test [for voluntary consent] is the totality of the circumstances.” Id. “[W]e

will defer to the findings of the district court on the voluntariness of the consent, unless

those findings are clearly erroneous.” State v. Diede, 795 N.W.2d 836, 853 (Minn.

2011). “The district court’s findings are clearly erroneous only if, after reviewing the

evidence, we are left with the definite and firm conviction that a mistake occurred.” Id.

at 853-54. Although the officer phrased it as an imperative, the district court found that

the officer did not issue a command under color of authority.          We agree.     While


                                             5
investigating a DWI report, it is expected that officers would approach people who are

near the location where a reported car is found. In this instance, the officers did not

approach with emergency lights on. Nor did they rouse the residents from sleep, given

that the officers could hear yelling before they knocked. Rather, after briefly knocking

on the door and responding to the occupants’ questions about their intentions, the officer

requested to speak with the people inside the apartment. Nothing in the record indicates

that the request to open the door was made in a manner other than a calm tone or that it

was louder than necessary to be heard through the apartment door.

       Throughout the encounter, Gorgol’s tone and demeanor were not that of a person

acquiescing to authority. First, Gorgol waited until his questions about the officer’s

intentions were answered before opening the door, demonstrating that he did not feel an

immediate need to comply with the officer’s request. Second, he refused the officer’s

requests to come inside or to have him step outside, showing that he understood his right

to refuse cooperation and intended to set limits on the encounter. Finally, his responses

to questions and general demeanor did not support a finding of a willingness to submit to

police authority.

       The dissent states that circumstances after Gorgol opened the door “are not

relevant to a determination of whether his initial consent was freely and voluntarily

given.” We disagree because Gorgol demonstrated no compulsion to comply with the

officers’ requests. The officers acted to arrest Gorgol only after they identified Gorgol as

the driver of the vehicle observed at the toll booth and noticed indicia of intoxication. It




                                             6
is only at that point that the officers acted under the color of authority. These additional

factors are what justified Gorgol’s arrest after he opened the door.

       Given the totality of the circumstances, the district court did not clearly err, and

we defer to its finding of consent. Because we affirm the district court’s finding of

consent, we do not reach the issue of whether exigent circumstances existed that would

have justified a warrantless seizure.

                                             II.

       Gorgol next argues that the district court erred by admitting the full implied-

consent-advisory recording, including statements made during the breath test. Gorgol

contends that the officers interrogated him at various points during the recording, arguing

that the officers should have known that their questions and remarks would elicit an

incriminating response.

       Because defense counsel did not object to admission of the recording, we review

only for plain error. See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740

(Minn. 1998). To grant relief under plain-error review, “there must be (1) error, (2) that

is plain, and (3) affects substantial rights.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.

2006). An error is plain “when it contravenes a rule, case law, or a standard of conduct,

or when it disregards well-established and longstanding legal principles.” State v. Brown,

792 N.W.2d 815, 823 (Minn. 2011). An error affects substantial rights if “there is a

reasonable likelihood that the error substantially affected the verdict.”       Id. at 824

(quotation omitted).




                                             7
       A suspect in custody must be informed of his rights to remain silent and to consult

an attorney before being interrogated. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.

Ct. 1602, 1630 (1966). Any evidence procured in violation of Miranda cannot be

admitted at trial. Id. The state concedes that Gorgol was in custody and had not received

a Miranda warning.

       Interrogation includes “‘any words or actions on the part of the police . . . that the

police should know are reasonably likely to elicit an incriminating response from the

suspect.’” State v. Ingold, 450 N.W.2d 344, 346 (Minn. App. 1990) (quoting Rhode

Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689 (1980)), review denied (Minn.

Mar. 8, 1990). A district court should examine a defendant’s statements in light of the

suspect’s viewpoint, not the police officer’s subjective intent. Id. Providing information

about the implied-consent law and asking questions to confirm that the information was

understood does not constitute interrogation. Pennsylvania v. Muniz, 496 U.S. 582, 603,

110 S. Ct. 2638, 2651 (1990). Based on Muniz, Gorgol concedes that some of the

recording was admissible, but challenges two specific portions.

       Gorgol’s first challenge is to a recitation of the evidence against him. Initially, in

the recording, Gorgol asked why he was arrested, and the officer replied, “I already told

you, for driving while intoxicated.” Gorgol retorted that he was not driving at the time of

his arrest. The officer then explained that he was arrested because the toll-booth operator

reported seeing him driving earlier that night. Gorgol then gave alternative explanations

of what the toll-booth operator saw, while ignoring the officer’s attempt to draw his

attention back to the implied-consent advisory. This exchange, which was initiated by


                                             8
Gorgol, was not interrogation. Moreover, describing the evidence and charges against a

suspect is not interrogatory. United States v. Wipf, 397 F.3d 677, 685 (8th Cir. 2005)

(citing other circuits with similar holdings).

       Gorgol highlights the officer’s question, “That was tonight?,” as an example of

interrogation. However, Gorgol had already said that he talked to the toll-booth operator

“two, ten hours ago.” So, the question could only have elicited a response from Gorgol

that was either exculpatory, by denying that he talked to the toll-booth operator that night,

or duplicative of his earlier, admissible statement that he had in fact talked to the toll-

booth operator.

       Gorgol’s second challenge is to the admission of his description of the evening’s

events given after the officer administering the breath test said, “[T]ell me what

happened.” Asking a suspect what happened is not innocuous small talk under these

circumstances. The inquiry was likely to elicit the suspect’s version of events, which

could be incriminating or contradict earlier statements; therefore, the inquiry was

interrogatory. Because the recording contained evidence that was obtained in violation of

Miranda, the admission of the full recording was plain error.1

       But the error here did not affect Gorgol’s substantial rights because there was

overwhelming evidence supporting the conviction. The only incriminating remarks made

to the officer during the breath test were that Gorgol had been drinking earlier in the day

and had access to the car because his girlfriend owned it.

1
 We are empathetic to the heavy burden placed on the district court to identify a possible
error in the final minutes of a lengthy recording played in full when defense counsel has
not raised the issue in advance or otherwise objected.

                                                 9
       In order to convict Gorgol of DWI, the jury must have found that he was driving a

motor vehicle, he was under the influence of alcohol at the time, and that the act

happened on August 24, 2013, in Clay County. See Minn. Stat. § 169A.20, subd. 1(1)

(2014). The toll-booth operator testified that she saw Gorgol driving a white car, that he

nearly fell out of his car during his second attempt to pay the toll, that his speech was

slurred, and that he was swerving and almost hit a portable toilet as he left. She also

testified that she called police and gave them the car’s license plate and a description of

Gorgol. Next, an officer testified that he went to the address at which the car was

registered, found a car matching the toll-booth operator’s description, and identified

Gorgol, who matched the description given and appeared “very intoxicated.”             Both

witnesses testified that these events occurred on August 24, 2013, in Clay County. Even

without Gorgol’s admissions, there was ample evidence to support conviction.

       In order to convict Gorgol of DWI with an alcohol concentration of .08 or greater,

the jury must have found that he was driving a motor vehicle, that his alcohol

concentration was .08 or more within two hours of driving, and that the act happened on

August 24, 2013, in Clay County. See Minn. Stat. § 169A.20, subd. 1(5). Regarding the

alcohol-concentration element, the toll-booth operator testified that she saw Gorgol

driving shortly before midnight, and the breath-test results indicated that Gorgol’s alcohol

concentration was .19 at 1:20 a.m.      Again, without considering the portions of the

recording admitted in error, there was ample evidence to support conviction. Because

there was overwhelming evidence supporting conviction, the error did not affect Gorgol’s

substantial rights.


                                            10
                                           III.

       Finally, Gorgol argues that he did not receive effective assistance of counsel

because his defense counsel did not object to the admission of the full recording of the

implied-consent advisory and the breath test.

       “Claims of ineffective assistance of counsel are reviewed de novo because they

involve mixed questions of fact and law.” State v. Hokanson, 821 N.W.2d 340, 357

(Minn. 2012).      In order to succeed, “appellant must show that his trial counsel’s

representation fell below an objective standard of reasonableness and that there is a

reasonable probability that, but for the counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (quotation omitted). “[T]here is a strong

presumption that counsel’s performance was reasonable . . . .” Id. at 358.

       Gorgol fails to demonstrate that the outcome of his trial would have been different

if his attorney had objected to the recording. Here, the statements contained in the

objectionable part of the recording were not necessary to a conviction. Rather, there was

overwhelming evidence to support conviction in the form of eyewitness testimony,

Gorgol’s admissible statements, and the results of his breath test; therefore, Gorgol’s

ineffective-assistance-of-counsel argument fails because there was no reasonable

probability that the result would have been different had his counsel objected.

       Affirmed.




                                            11
HUDSON, Judge (concurring in part and dissenting in part)

                                            I

      I respectfully dissent from the majority’s conclusion that appellant Charles

Edward Gorgol voluntarily consented to the seizure by opening his door and speaking to

police officers. Because the totality of the circumstances establishes that Gorgol simply

acquiesced to a show of authority by law enforcement, I would reverse the district court’s

order denying Gorgol’s motion to suppress and dismiss the case against him.

      A seizure occurs when law enforcement, by means of physical force or some other

show of authority, restrains the liberty of a person. In re Welfare of E.D.J., 502 N.W.2d

779, 781 (Minn. 1993). Warrantless seizures inside a person’s home are presumptively

unreasonable unless an exception to the warrant requirement applies. Payton v. New

York, 445 U.S. 573, 586, 589–90, 100 S. Ct. 1371, 1380, 1381–82 (1980). Freedom from

intrusion into the home “is the archetype of the privacy protection secured by the Fourth

Amendment” and Minnesota “has long adhered to the common law recognition of the

home’s importance.” Id. at 596–97, 100 S. Ct. at 1385; State v. Carothers, 594 N.W.2d

897, 900 (Minn. 1999).

      Consent is a valid exception to the warrant requirement.            Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2043 (1973). A warrantless seizure that occurs

at the threshold of a person’s home is constitutionally valid if that person consents to

opening his door in response to police knocking. State v. Howard, 373 N.W.2d 596, 598

(Minn. 1985).    But the consent exception applies only when the state proves by a

preponderance of the evidence that the defendant’s consent was given freely and

                                         C/D-1
voluntarily. Schneckloth, 412 U.S. at 222, 93 S. Ct. at 2043. “Mere acquiescence on a

claim of police authority” is insufficient to establish voluntary consent. Bumper v. North

Carolina, 391 U.S. 543, 548 (1968); State v. Howard, 373 N.W.2d 596, 599 (Minn.

1985). A defendant’s consent is voluntary only when the totality of the circumstances

establishes that a reasonable person would have felt free to decline law enforcement’s

requests or to terminate the encounter. State v. Dezso, 512 N.W.2d 877, 880 (Minn.

1994).

         The majority concludes that Gorgol voluntarily consented to opening his door

because he did so in response to law enforcement’s “request” to speak with him and

because his tone and demeanor “were not that of a person acquiescing to authority.” I

respectfully disagree. Multiple officers arrived at Gorgol’s home late at night, knocked

repeatedly and loudly on his door, and twice ordered him to “open the door so we can

talk to you.”1 Cf. State v. George, 557 N.W.2d 575, 581 (Minn. 1997) (concluding

consent was involuntary because the two troopers created “intimidating circumstances”

that led the defendant to acquiesce to police authority); United States v. Flowers, 336

F.3d 1222, 1226 n.2 (10th Cir. 2003) (concluding that “a reasonable person confronted by

police officers outside his door at night and a command by one of the officers to allow

them to enter, would have believed that he had to open the door of his home and submit

to the show of authority”). The officers were persistent; they used authoritative language

throughout the encounter and their tone and demeanor clearly established that they were

1
  Contrary to the majority’s characterization that law enforcement “requested” that
Gorgol open the door, one of the responding police officers agreed at the omnibus
hearing that he “demanded” that Gorgol open the door so he could talk to him.
                                         C/D-2
asserting a claim of police authority. Cf. Dezso, 512 N.W.2d at 881 (finding consent

involuntary because it was given in response to officer’s “official and persistent”

questioning); State v. Diede, 795 N.W.2d 836, 847–48 (Minn. 2011) (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). A reasonable

person would conclude, under the totality of those circumstances, that he had no choice

but to adhere to the officers’ commands and open the door to his residence.

      In addition, the majority’s conclusion that Gorgol voluntarily opened his door is

based in part on his conduct after he opened the door and began to speak with law

enforcement. Because those circumstances occurred after Gorgol opened the door, they

are not relevant to a determination of whether his initial consent was freely and

voluntarily given.   If those circumstances are deemed relevant, the totality of the

circumstances would also include the officers’ conduct after Gorgol opened the door;

their conduct further establishes that they were acting under “the color o[f] police

authority.” State v. Armstrong, 292 Minn. 471, 473, 194 N.W.2d 293, 294 (1972). When

Gorgol opened his door, he was instructed to exit his home and speak with the officers;

when he refused, they immediately informed him that he had the option to “step out of

the apartment and continue to speak with [them]” or that they would “just arrest [him].”

After Gorgol again “refused to [talk with the officers],” they directed him to exit his

home and placed him under arrest.

      The officers’ conduct demonstrates that Gorgol was required to cooperate with

their commands, that he had no right to limit the scope of the police encounter, and that

                                         C/D-3
he did not have the option to terminate the encounter and return to his home. Based on

the circumstances of that encounter, Gorgol merely acted in acquiescence to law

enforcement’s display of authority. Accordingly, I would conclude that the state did not

sustain its burden to prove that Gorgol voluntarily consented to the seizure, that he was

unlawfully seized by law enforcement and that the district court should have suppressed

all evidence that resulted from that seizure.2




                                           ______________________________________
                                           Judge Natalie E. Hudson




2
 Because the state does not argue that the exigency exception to the warrant requirement
applies here, I do not consider whether that exception would justify appellant’s seizure.
State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5,
1997).
                                           C/D-4
