                          This opinion will be unpublished and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
                                     A14-1753

                               Ryan John Nordell, petitioner,
                                       Appellant,

                                            vs.

                              Commissioner of Public Safety,
                                     Respondent.

                                  Filed August 10, 2015
                                        Affirmed
                                   Cleary, Chief Judge

                               Dakota County District Court
                                File No. 19WS-CV-13-991


Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

Lori Swanson, Attorney General, Rory C. Mattson, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


         Considered and decided by Cleary, Chief Judge; Hudson, Judge; and Worke,

Judge.

                         UNPUBLISHED OPINION

CLEARY, Chief Judge

         Appellant Ryan John Nordell challenges the district court’s order sustaining the

revocation of his driver’s license. Nordell argues that (1) the officer did not have an
adequate basis for initiating a traffic stop of his car; (2) his field sobriety test results were

inadmissible because no exception to the warrant requirement applied; (3) his breath test

results were inadmissible because no exception to the warrant requirement applied;

(4) the officer did not vindicate Nordell’s right to consult with counsel before Nordell

submitted to chemical testing; and (5) the criminal test refusal statute is unconstitutional

because it violates the right to due process and the doctrine of unconstitutional conditions

as applied to Fourth- and Fifth-Amendment rights. We affirm.

                                            FACTS

       On June 18, 2013, at approximately 10:30 p.m., Officer Nels Engstrom initiated a

traffic stop of a car driven by appellant Ryan Nordell. Officer Engstrom testified at trial

that he had observed the car begin to turn left but then suddenly turn right without

signaling. When Officer Engstrom approached Nordell’s car, he smelled alcohol on

Nordell, noticed Nordell’s eyes were bloodshot and watery, and noticed Nordell’s speech

was slightly slurred. Nordell admitted to Officer Engstrom that he had consumed alcohol

before driving.

       Officer Engstrom asked Nordell to exit his car to perform field sobriety tests.

Nordell’s performance on the field sobriety tests yielded several “clues of impairment.”

Officer Engstrom then administered a preliminary breath test, which Nordell failed.

Officer Engstrom arrested Nordell for driving while impaired.

       At the police department, Officer Engstrom read Nordell the Minnesota implied-

consent advisory. Officer Engstrom asked Nordell if he understood and Nordell said he




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did. Upon Nordell’s request to consult with an attorney, Officer Engstrom provided

Nordell with a telephone and telephone books at 11:08 p.m. After making several phone

calls, Nordell reached an attorney by phone at about 11:40 p.m. Eight or nine minutes

into Nordell’s conversation with the attorney, Officer Engstrom told Nordell he “would

have to start wrapping things up” because he had had phone privileges for over 40

minutes by that point. Nordell ended his phone call at 11:49 p.m. Officer Engstrom then

asked Nordell if he would submit to a breath test and Nordell said he would. The breath

test revealed an alcohol concentration of .12.

       The district court concluded that the traffic stop was based upon reasonable,

articulable suspicion; that Nordell’s right to counsel was vindicated; and that Nordell had

voluntarily consented to the chemical breath test. Therefore, the court admitted the

results of the field sobriety tests, preliminary breath test, and chemical breath test. Based

upon this evidence, the court sustained the revocation of Nordell’s driver’s license.

Nordell appeals.

                                     DECISION

       Nordell’s arguments on appeal are premised on the prohibition against

unreasonable searches and seizures in the United States and Minnesota Constitutions.

U.S. Const. amend. IV; Minn. Const. art I, § 10. “[T]he Fourth Amendment does not

proscribe all searches and seizures, but only those that are unreasonable.” Skinner v. Ry.

Labor Execs. Ass’n, 489 U.S. 602, 619, 109 S. Ct. 1402, 1414 (1989). Warrantless




                                             3
searches are per se unreasonable, subject to limited exceptions. State v. Othoudt, 482

N.W.2d 218, 222 (Minn. 1992).

I.     Basis for Traffic Stop

       Nordell argues that Officer Engstrom did not have an adequate basis to initiate a

traffic stop. An officer may conduct a brief investigatory motor vehicle stop if the officer

has reasonable, articulable suspicion of criminal activity. State v. Munson, 594 N.W.2d

128, 136 (Minn. 1999) (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S. Ct. 1868, 1879-80

(1968)). The officer’s suspicion must be more than a hunch, but even an insignificant

traffic violation can be sufficient to establish an objective basis for a stop. State v.

George, 557 N.W.2d 575, 578 (Minn. 1997); see also State v. Johnson, 444 N.W.2d 824,

825-26 (Minn. 1989).

       “In determining whether a stop is justified, we consider the totality of the

circumstances and acknowledge that trained law enforcement officers are permitted to

make inferences and deductions that would be beyond the competence of an untrained

person.” State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001). The district court

must “analyze the testimony of the officer and determine whether, as a matter of law, his

observations provided an adequate basis for the stop.” Berge v. Comm’r of Pub. Safety,

374 N.W.2d 730, 732 (Minn. 1985). This court reviews the district court’s findings for

clear error, but reviews the determination of reasonable suspicion, as it relates to traffic

stops, de novo. In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn. 1997).

       Officer Engstrom testified that he observed Nordell initially begin to turn left off

of highway 66, but then observed Nordell suddenly turn right, without using his turn


                                             4
signal for either turn. The district court relied upon Officer Engstrom’s testimony to find

that Officer Engstrom observed Nordell fail to signal a turn, which is a traffic infraction

under Minn. Stat. § 169.19, subd. 5 (2014). The district court stated that it found Officer

Engstrom “credible and clear that he observed a traffic violation.” Nordell argues that

the squad car video shows that there was no traffic violation, and that the district court

clearly erred by finding that the video “does not contradict [Officer Engstrom’s]

testimony.”

       Our review of the video is inconclusive. However, there is nothing in the video—

or in the remainder of the record—inconsistent with Officer Engstrom’s testimony. The

district court did not clearly err by finding that Officer Engstrom observed Nordell fail to

use his turn signal.

       An officer’s observation of a failure to use a turn signal, in violation of Minn. Stat.

§ 169.19, may establish reasonable suspicion adequate to justify a traffic stop. See State

v. Doebel, 790 N.W.2d 707, 709 (Minn. App. 2010) (upholding stop based on failure to

use turn signal when changing lanes), review denied (Minn. Jan. 26, 2011). We conclude

that the district court did not err in determining that Officer Engstrom had reasonable

suspicion for an investigatory motor vehicle stop.

II.    Field Sobriety Tests

       Before the district court, Nordell requested suppression of the field sobriety tests

on the basis that field sobriety tests are searches that must be supported by probable cause

and a warrant or warrant exception. Nordell argues that Missouri v. McNeely, 133 S. Ct.




                                              5
1552 (2013) rendered Minnesota law regarding the admissibility of field sobriety tests

unconstitutional. This court reviews questions of law de novo.            In re Collier, 726

N.W.2d 799, 803 (Minn. 2007).

       Field sobriety tests need only be supported by reasonable, articulable suspicion

that the driver is impaired. See State, Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316,

321 (Minn. 1981) (holding that an officer appropriately administered field sobriety tests

and a preliminary breath test because the officer had reasonable, articulable suspicion that

the person had been driving while impaired); State v. Klamar, 823 N.W.2d 687, 696

(Minn. App. 2012) (determining that the officer’s observation of two indicia of

intoxication constituted reasonable, articulable suspicion to justify field sobriety tests and

preliminary breath testing). The district court admitted the test results on that basis.

       McNeely dealt specifically with the application of the exigent-circumstances

exception to a warrantless blood test. A blood test, “which involve[s] a compelled

physical intrusion beneath [a suspect’s] skin and into his veins,” is subject to the Fourth-

Amendment warrant requirement. McNeely, 133 S. Ct. at 1558. Although McNeely

clarified the Fourth Amendment as applied to tests subject to the warrant requirement,

McNeely does not address whether field sobriety tests are subject to the warrant

requirement. Also, the Minnesota Supreme Court has distinguished between blood tests

and other types of tests that are materially less invasive than blood testing. See State v.

Bernard, 859 N.W.2d 762, 768 n.6 (Minn. 2015).




                                              6
       McNeely did not overrule Minnesota law requiring only articulable suspicion to

administer field sobriety tests. Although Nordell’s characterization of field sobriety tests

as warrant-protected Fourth Amendment searches was creative and thoughtfully argued,

it does not account for the current state of the law in Minnesota, which we are obliged to

follow. The district court did not err by admitting Nordell’s field sobriety test results.

III.   Exception to Warrant Requirement for Breath Test

       A chemical breath test 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, 489 U.S. at 616-17, 109 S. Ct. at 1412-13. Nordell argues that the

district court did not establish that any exception to the warrant requirement applies to his

breath test.

       One of the established exceptions 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, 570 (Minn. 2013). Voluntary

consent is given “without coercion or submission to an assertion of authority” such 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).

Voluntariness is determined by 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). This court reviews the district


                                              7
court’s finding of voluntariness for clear error, which occurs when “we are left with the

definite and firm conviction that a mistake occurred.” Id. at 846-47.

       The district court’s brief analysis of the consent exception emphasized that

Nordell had the opportunity to consult with an attorney and that there was no indication

that Nordell did not understand the implied consent advisory. Additionally, Nordell was

not subject to repeated police questioning or an extended period in custody. These facts

are in line with the facts that the supreme court relied upon to find consent in Brooks.

838 N.W.2d at 571-72.

       Nordell argues that his consent was not voluntary because (1) he “was told that

Minnesota law required him to take the test and that his refusal . . . would result in a

prosecution for a separate, more serious offense” and (2) Brooks is contrary to Bumper v.

North Carolina, 391 U.S. 543, 88 S. Ct. 1788 (1968). Brooks held that “a driver’s

decision to agree to take a test is not coerced simply because Minnesota has attached the

penalty of making it a crime to refuse.” 838 N.W.2d at 570. Also, Brooks distinguished

Bumper on the basis that, in Bumper, “in effect . . . the [person] had no right to refuse the

search,” whereas, under Minnesota implied-consent law, “[i]f a driver refuses the test, the

police are required to honor that refusal and not perform the test.” Id. at 571. The district

court did not clearly err by concluding that the consent exception applied to Nordell’s

breath test.

IV.    Right to Counsel

       The Minnesota Constitution gives the accused a right to counsel in criminal

prosecutions. Minn. Const. art. I, § 6. Friedman v. Comm’r of Pub. Safety held that


                                             8
Article I, section 6 guarantees DWI arrestees a “limited right to counsel within a

reasonable time before submitting to testing.” 473 N.W.2d 828, 835 (Minn. 1991). This

right to counsel is vindicated if an arrestee is “provided with a telephone prior to testing

and given a reasonable time to contact and talk with counsel.” Id. at 835 (quotation

omitted). Because of the evanescent nature of DWI evidence, police may be justified in

limiting the duration of a DWI arrestee’s attorney consultation. See id. at 834 (citing

State v. Spencer, 750 P.2d 147 (Or. 1988)). We review de novo whether a defendant’s

right to counsel was vindicated. State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998).

       The record in this case leads us to conclude that Nordell had a reasonable

opportunity to consult with an attorney. Officer Engstrom gave Nordell approximately

40 minutes to contact an attorney, during which time he made several phone calls to find

attorneys’ phone numbers. Once Nordell had reached an attorney, he spoke with the

attorney for eight or nine minutes before Officer Engstrom told him he was willing to

give him a couple more minutes “and then we would have to start wrapping things up.”

By the time Officer Engstrom instructed Nordell to start wrapping it up, Nordell had

moved on from asking for advice about the test to asking whether the attorney thought he

should contact additional attorneys for advice. Officer Engstrom’s instruction to “wrap it

up” did not specifically state how much time Nordell had left, nor did it imply that

Nordell had to finish his conversation immediately. Nordell spoke with the attorney for

approximately two more minutes after Officer Engstrom’s instruction, during which time

Nordell gave his contact information to the attorney and thanked the attorney for his




                                             9
advice. Officer Engstrom’s limit on Nordell’s attorney consultation was reasonable and

did not prevent Nordell from exercising his right to counsel.

V.     Constitutionality of Test-Refusal Statute

       Nordell argues that the criminal test-refusal statute is unconstitutional because the

criminalization of test refusal violates the right to due process of law and places

unconstitutional conditions upon the exercise of his Fourth-Amendment and Fifth-

Amendment rights.      Published Minnesota cases have addressed the constitutional

arguments that Nordell raises.

       A.     Due process

       Bernard forecloses the argument that the criminalization of test refusal violates the

right to due process of law. Bernard held that there is no fundamental right to refuse a

warrantless breath test because it is a constitutional search under the search-incident-to-

arrest exception, and applied a rational basis review to the question of whether the

criminal test-refusal statute violated due process rights. The court in Bernard further

concluded that the criminal test-refusal statute survived a rational basis review of

constitutionality and therefore does not violate the right to due process. 859 N.W.2d at

773.

       B.     Unconstitutional-conditions doctrine

       “The unconstitutional-conditions doctrine is a creature of federal law that may, in

some situations, be invoked to protect or vindicate a constitutional right.” Stevens v.




                                            10
Comm’r of Pub. Safety, 850 N.W.2d 717, 723 (Minn. App. 2014). The Minnesota

Supreme Court has explained the doctrine as follows:

              [A]s a general rule, the state, having power to deny a
              privilege altogether, may grant it upon such conditions as it
              sees fit to impose. But the power of the state in that respect is
              not unlimited, and one of the limitations is that it may not
              impose conditions which require the relinquishment of
              constitutional rights. If the state may compel the surrender of
              one constitutional right as a condition of its favor, it may, in
              like manner, compel a surrender of all. It is inconceivable
              that guaranties embedded in the Constitution of the United
              States may thus be manipulated out of existence.

State v. Netland, 762 N.W.2d 202, 211 (Minn. 2009) (emphasis added), abrogated in part

by McNeely, 133 S. Ct. at 1552, as recognized in Brooks, 838 N.W.2d at 567 (quoting

Frost v. R.R. Comm’n of Cal., 271 U.S. 583, 593-4, 46 S. Ct. 605, 607 (1926)). “The

doctrine is properly raised only when a party has successfully pleaded the merits of the

underlying unconstitutional government infringement.” Id. In order to succeed on this

claim, Nordell would have to establish that the criminal test-refusal statute compels him

to relinquish either his Fourth- or Fifth-Amendment rights. See id.

              1.     Fourth Amendment

       State v. Bennett, ___ N.W.2d ___, ___, No. A14-1813, slip op. at 8 (Minn. App.

July 27, 2015), addresses the argument that the criminalization of a breath test refusal

violates the doctrine of unconstitutional conditions, as applied to the Fourth Amendment.

Bennett holds that the criminal test-refusal statute does not place an unconstitutional

condition upon the exercise of Fourth-Amendment rights, at least as it pertains to the

refusal to take a breath test. Id.; cf. Stevens v. Comm’r of Public Safety, 850 N.W.2d 717,



                                             11
724 (Minn. App. 2014) (holding that the implied-consent statute does not place an

unconstitutional condition upon the exercise of Fourth-Amendment rights).               Bennett

concludes that the unconstitutional-conditions doctrine requires that the driver “establish

that the criminal test-refusal statute authorizes an unauthorized search.” Bennett, slip op.

at 8 (citing Netland, 762 N.W.2d at 212). Because Bernard held that a warrantless breath

search would have been constitutional as a search incident to arrest, 859 N.W.2d at 767,

Bennett holds that the test-refusal statute does not authorize an unauthorized search and

the unconstitutional-conditions doctrine does not apply.

              2.     Fifth Amendment

       In the alternative, Nordell argues that Minnesota’s criminal test-refusal statute

places an unconstitutional condition upon the Fifth-Amendment right against self-

incrimination because it leaves a DWI arrestee no option to avoid self-incrimination: the

person must choose between either (a) incriminating themselves of driving while

intoxicated by submitting to a chemical alcohol concentration test or (b) incriminating

themselves under the criminal test-refusal statute by refusing to submit to the test.

       However, McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn.

1991), forecloses the argument that the criminalization of test refusal violates the

unconstitutional-conditions doctrine, as applied to the Fifth Amendment. As discussed

above, a necessary element of an unconstitutional-conditions challenge is proving that

there is an underlying constitutional violation. Bennett, slip op. at 8 (citing Netland, 762

N.W.2d at 211); see also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286, 118 S.




                                             12
Ct. 1244, 1252 (1998) (stating that it was unnecessary to address the unconstitutional-

conditions doctrine, as applied to the Fifth Amendment, where the challenged procedures

did not violate the Fifth-Amendment privilege against self-incrimination). McDonnell

held that the criminal test-refusal statute does not violate the Fifth Amendment because

“[t]he fact that certain individuals may face criminal charges for refusing to undergo

testing in no way compels those individuals to refuse.” 473 N.W.2d at 855-56 (emphasis

added). Because McDonnell held that the criminal test-refusal statute does not violate the

Fifth Amendment, the criminal test-refusal statute does not impose an unconstitutional

condition upon the exercise of Fifth-Amendment rights.            Bernard, Bennett, and

McDonnell foreclose all of Nordell’s constitutional challenges to the criminal test-refusal

statute.

       Affirmed.




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