                        This opinion will be unpublished and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
                                   A14-1854

                           Jeremy Ray Johnson, petitioner,
                                    Appellant,

                                          vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                 Filed May 11, 2015
                                      Affirmed
                                   Chutich, Judge

                          Crow Wing County District Court
                              File No. 18-CV-14-1127

Richard Kenly, Backus, Minnesota (for appellant)

Lori Swanson, Attorney General, Elizabeth Oji, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


      Considered and decided by Connolly, Presiding Judge; Chutich, Judge; and

Kirk, Judge.

                       UNPUBLISHED OPINION

CHUTICH, Judge

      Appellant Jeremy Johnson challenges the revocation of his driver’s license.

Johnson argues that he was under arrest before taking field sobriety tests and that his

consent to the breath test was coerced. Because we conclude that Johnson was not under
arrest until after his field sobriety tests were taken and he voluntarily consented to the

breath test, we affirm.

                                         FACTS

       At 1:35 a.m. on March 20, 2014, while on patrol, Officer Ann Hunnicutt received

a dispatch call that a truck had hit a mailbox and was stuck in a ditch. As Officer

Hunnicutt approached the reported location, she saw a truck pulling out of the ditch.

Officer Hunnicutt activated the emergency lights on her unmarked car, stopped, got out,

and yelled “police—you need to stop.”        The truck stopped, and Officer Hunnicutt

approached the driver’s door.

       After identifying the driver as Johnson, Officer Hunnicutt told him that she had

stopped him because he appeared to be leaving the scene of an accident involving a

damaged mailbox. Officer Hunnicutt detected the odor of alcohol coming from Johnson

and observed that he had slow, slurred speech and bloodshot, watery eyes. When asked

whether he had been drinking, Johnson initially said he had not but later said he had

consumed two beers. Johnson admitted to hitting the mailbox, and damage on Johnson’s

truck corroborated that admission.

       Officer Hunnicutt instructed Johnson to perform field sobriety tests, and Johnson

complied. Officer Hunnicutt then asked Johnson to take a preliminary breath test and

Johnson refused, at which point Officer Hunnicutt informed Johnson that she was

arresting him for driving while impaired. Soon after, Johnson decided to comply with the

preliminary breath test, which revealed an alcohol concentration of .158.




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       Officer Hunnicutt transported Johnson to the county jail, where she read him the

implied consent advisory. Officer Hunnicutt asked Johnson if he understood, and he said

that he did. Officer Hunnicutt then offered Johnson the opportunity to consult with an

attorney, and he was able to speak with an attorney.

       Afterwards, Officer Hunnicutt asked Johnson if he would consent to a breath test.

Johnson asked a question about refusal to take the test. In response, Officer Hunnicutt

reread item number 2 of the advisory, “Refusal to take the test is a crime.” Johnson said

that he understood. When Officer Hunnicutt asked Johnson again if he would consent to

the test, he responded “yes.” Officer Hunnicutt did not obtain a warrant for the test. The

test revealed an alcohol concentration of .20 and the commissioner of public safety

revoked Johnson’s driver’s license.

       Johnson petitioned the district court to rescind his license revocation. The district

court concluded that Officer Hunnicutt had reasonable and articulable suspicion to seize

and probable cause to arrest Johnson for driving while impaired. The district court also

concluded that Johnson had voluntarily consented to the breath test. As a result, the

district court sustained the revocation of Johnson’s license. Johnson appealed.

                                      DECISION

I.     De Facto Arrest

       Johnson first argues that the results of his preliminary breath test and field sobriety

tests should have been excluded because he was de facto under arrest from the time that

Officer Hunnicutt instructed him to step out of his truck. The commissioner argues that

Johnson waived his de facto-arrest argument by not raising it before the district court.


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       This court does not address issues on appeal that were not presented to and

considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). An

issue is not waived where the district court had the opportunity to consider the issue. See

Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 522-23 (Minn. 2007)

(distinguishing the argument waived in Thiele, which was “never litigated below,” from

an argument raised on appeal that was a refined version of an argument raised below);

Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (holding that an

issue is not proper for consideration on appeal where the trial court did not have the

opportunity to consider the issue), abrogated on other grounds by Onvoy, Inc. v. SHAL,

LLC, 669 N.W.2d 344 (Minn. 2003).

       Here, Johnson did not waive the de facto-arrest issue because his post-hearing

brief discussed the de facto-arrest issue.         Although the district court order did not

comment on this issue, the court had the opportunity to consider it because it was on the

record when the district court issued its order.

       Even considering Johnson’s de facto-arrest argument, however, it is unconvincing

under the circumstances present here. This court independently reviews the district

court’s conclusion as to whether a person is in custody at a given time. State v. Mellett,

642 N.W.2d 779, 787-88 (Minn. App. 2002), review denied (Minn. July 16, 2002).

Whether a suspect is under arrest requires an objective inquiry into whether a reasonable

person in the suspect’s situation would have understood that he was in custody to the

degree associated with an arrest. Id. at 787. General on-scene questions—including the

questions “have you been drinking?” and “how much?”—do not convert a detention into


                                              4
an arrest. State v. Kline, 351 N.W.2d 388, 390 (Minn. App. 1984). Nor is a detention

necessarily converted to an arrest where the officer instructs the suspect to leave his car

and instructs the suspect to take a preliminary breath test and to perform field sobriety

tests. State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986); Mellett, 642 N.W.2d at 788.

       The audio recording of the interaction between Officer Hunnicutt and Johnson

shows that Officer Hunnicutt did not use any special show of force that would make a

reasonable person think Johnson was under arrest. Officer Hunnicutt spoke to Johnson in

an authoritative but reasonable tone and asked him general questions about whether he

had been drinking and where he was going.           Officer Hunnicutt provided extensive

instructions for the field sobriety tests she asked Johnson to perform and addressed

Johnson as “sir.” She did not handcuff Johnson or inform him that he was under arrest

until after he refused to take the preliminary breath test. Given these facts, Johnson was

not under arrest before Officer Hunnicutt informed him that he was under arrest.

Accordingly, the district court properly admitted the results of the field sobriety tests and

preliminary breath test.

II.    Exception to Warrant Requirement

       Johnson also argues that the results of his chemical breath test are inadmissible

because they were the product of an unconstitutional search. The United States and

Minnesota Constitutions guarantee the right to be secure against unreasonable searches

and seizures. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. The taking of a breath

test is a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct.

1402, 1413 (1989). A search is generally unreasonable unless conducted under a warrant


                                             5
issued upon probable cause. Id. at 619, 109 S. Ct. at 1414. Several exceptions apply to

the warrant requirement, but Johnson asserts that the state did not establish that any

exception applies here.

       A.     Consent Exception

       One exception to the warrant requirement is consent to the search. State v. Diede,

795 N.W.2d 836, 846 (Minn. 2011) (citing Schneckloth v. Bustamonte, 412 U.S. 218,

219, 93 S. Ct. 2041, 2043-44 (1973)). For consent to be valid, the state must prove by a

preponderance of the evidence that the defendant freely and voluntarily consented. State

v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).

       Voluntary consent is that given “without coercion or submission to an assertion of

authority” so that a reasonable person would feel free to decline law enforcement’s

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

(Minn. 1994); see also Schneckloth, 412 U.S. at 225-26, 93 S. Ct. at 2047 (stating that

consent is involuntary if the suspect’s “will has been overborne and his capacity for self-

determination critically impaired”). “Whether consent was voluntary is determined by

examining 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.” Diede, 795

N.W.2d at 846 (quotations omitted).

       The district court found that Johnson’s consent to a breath test was voluntary.

This court reviews the district court’s finding of voluntariness under the clearly erroneous

standard. Id. Clear error occurs when “we are left with the definite and firm conviction

that a mistake occurred.” Id. at 846-47.


                                             6
       Johnson’s first argument challenging the voluntariness of his consent is that the

implied consent advisory is necessarily coercive because it includes the warning that test

refusal is a crime in Minnesota. This argument is without merit. Under State v. Brooks, a

driver’s consent to a chemical test may be voluntary even if the driver is informed that

refusal to submit to testing is a crime because the implied-consent advisory states clearly

that a person has a choice whether to submit to testing. 838 N.W.2d at 570-71.

       Johnson’s second argument is that the totality-of-the-circumstances test does not

support the conclusion that Johnson’s consent was voluntarily given. Johnson does not

raise any specific error that the court made in applying the totality-of-the-circumstances

test. Johnson merely asserts that Officer Hunnicutt’s tone of voice and demeanor toward

him created a coercive environment.

       The district court’s order thoroughly discussed each prong of the totality-of-the-

circumstances test, comparing the facts of Johnson’s case to the facts that the Brooks

court used to support a finding of voluntary consent. In reaching the conclusion that

Johnson voluntarily consented to the test, the district court emphasized that (1) Johnson

had an opportunity to speak with an attorney; (2) Officer Hunnicutt correctly read

Johnson the implied-consent advisory; and (3) Officer Hunnicutt’s actions and demeanor

toward Johnson were appropriate. Our review of the record, including listening to the

audio recording of the initial encounter between Johnson and Officer Hunnicutt, does not

lead us to conclude that the district court erred by finding that Johnson voluntarily

consented to the breath test.




                                            7
       B.      Search-Incident-to-Arrest Exception

       Another exception to the warrant requirement is for searches incident to a lawful

arrest. In State v. Bernard, the supreme court recently held that “a warrantless breath test

does not violate the Fourth Amendment because it falls under the search-incident-to-a-

valid-arrest exception.” 859 N.W.2d 762, 767 (Minn. 2015). Here, as in Bernard, the

officer had probable cause to arrest Johnson for driving while impaired. Under Bernard,

the search-incident-to-arrest exception also justified giving Johnson a breath test without

first securing a warrant.

       Affirmed.




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