This opinion will be unpublished and may not be cited except as provided by Minn.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 A13-1768
Bjorn Knudsen, petitioner, Respondent,
vs.
Commissioner of Public Safety, Appellant
Filed October 6, 2014 Reversed Peterson, Judge
Dakota County District Court File No. 19AV-CV-13-1237
Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota (for respondent)
Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from a district court order that rescinded the revocation of
respondent’s driver’s license under the implied-consent statute, appellant argues that the district court erred in determining that respondent did not voluntarily consent to a breath
test. We reverse.
FACTS
Dakota County Sheriff’s Deputy Jonathan Reimers stopped a vehicle that
respondent Bjorn Knudsen was driving at approximately 3:00 a.m., after the vehicle
crossed the fog line three times and the center line twice. During the stop, Reimers began
to suspect that Knudsen was under the influence of alcohol, and he eventually arrested
Knudsen for driving while impaired. Knudsen stipulated that Reimers “conducted an
investigation . . . which led him to believe that [Knudsen] was driving while impaired”
and that Reimers had probable cause to arrest Knudsen.
Reimers took Knudsen to the Dakota County Jail and read him the standard
implied-consent advisory. During the advisory, Knudsen was told that refusal to take a
test is a crime. Knudsen said that he understood the advisory and did not wish to consult
with an attorney. Reimers offered Knudsen a blood, breath, or urine test. Knudsen
agreed to take a breath test, which revealed a .21 alcohol concentration, and appellant
Commissioner of Public Safety revoked Knudsen’s driver’s license under Minn. Stat.
§ 169A.52, subd. 4(a) (2012).
At the implied-consent hearing on his license revocation, Knudsen challenged
only the admissibility of his warrantless breath test in light of Missouri v. McNeely, 133
S. Ct. 1552 (2013); he waived all other issues. The district court found that the
commissioner failed to prove that Knudsen’s consent to alcohol testing was freely and
voluntarily given because
2 [w]hen the officer asked for [Knudsen’s] consent to conduct an alcohol concentration search in this case, [Knudsen] had already been placed under arrest, transported from [his] vehicle in a squad car to another secure location, and informed that if [he] refused to provide the requested consent, [he] would be charged with a crime. In addition [Knudsen’s] decision making was impaired [by] alcohol which [he] had previously consumed. While [Knudsen] was offered an opportunity to contact counsel to obtain advice regarding [his] decision to consent, no attorney was ever reached and no advice was obtained.
The district court suppressed the evidence obtained from the breath test and rescinded
Knudsen’s license revocation. The commissioner appeals.
DECISION
“In reviewing [district] court rulings on [F]ourth [A]mendment issues, this court
accepts the [district] court’s findings of fact, unless clearly erroneous, but independently
applies [F]ourth [A]mendment case law to the facts so found.” State v. Saffels, 484
N.W.2d 429, 430 (Minn. App. 1992), review denied (Minn. June 1, 1992). The United
States and Minnesota Constitutions guarantee persons the right to be free from
“unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10.
Taking a sample of a person’s blood, breath, or urine constitutes a search that requires
either a warrant or an exception to the warrant requirement. Skinner v. Ry. Labor Execs.’
Ass’n, 489 U.S. 602, 616-17, 619, 109 S. Ct. 1402, 1412-14 (1989); see also State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013) (blood and urine testing), cert. denied, 134
S. Ct. 1799 (2014). “[P]olice do not need a warrant if the subject of the search consents.”
Brooks, 838 N.W.2d at 568.
3 “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 [to a
search].” Id. “‘Consent’ that is the product of official intimidation or harassment is not
consent at all.” Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388 (1991). But
involuntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned. Rather, it 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. Consent must be received, not extracted.
State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Consent is coerced when a suspect’s
“will has been overborne and his capacity for self-determination critically impaired.”
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047 (1973).
“‘Voluntariness’ is a question of fact and it varies with the facts of each case.”
Dezso, 512 N.W.2d at 880. In determining whether a person has voluntarily consented to
testing for alcohol concentration, a court must consider “the totality of circumstances,
including the nature of the encounter, the kind of person the defendant is, and what was
said and how it was said.” Brooks, 838 N.W.2d at 569 (quotation omitted). “[T]he
nature of the encounter includes how the police came to suspect [the person] was driving
under the influence, their request that he take the chemical tests, which included whether
they read him the implied consent advisory, and whether he had the right to consult with
an attorney.” Id. For consent to be voluntary, a reasonable person must feel free to
refuse a law-enforcement request. Dezso, 512 N.W.2d at 880. Consent must be more
4 than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S.
543, 548-49, 88 S. Ct. 1788, 1792 (1968).
In evaluating whether Knudsen consented to testing, the district court did not have
the benefit of the supreme court’s opinion in Brooks because the opinion had not been
released when the order rescinding Knudsen’s license revocation was issued. The
reasoning applied by the district court in this case was largely rejected in Brooks, where
the driver argued that his consent was coerced and he did not truly have a choice of
whether to submit to tests because police told him that if he did not submit, he would be
committing a crime. 838 N.W.2d at 570. The supreme court stated that the driver’s
custodial status was not “dispositive” and 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 the test.” Id. at 570-71. The supreme court also rejected the driver’s argument
Free access — add to your briefcase to read the full text and ask questions with AI
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 A13-1768
Bjorn Knudsen, petitioner, Respondent,
vs.
Commissioner of Public Safety, Appellant
Filed October 6, 2014 Reversed Peterson, Judge
Dakota County District Court File No. 19AV-CV-13-1237
Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota (for respondent)
Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from a district court order that rescinded the revocation of
respondent’s driver’s license under the implied-consent statute, appellant argues that the district court erred in determining that respondent did not voluntarily consent to a breath
test. We reverse.
FACTS
Dakota County Sheriff’s Deputy Jonathan Reimers stopped a vehicle that
respondent Bjorn Knudsen was driving at approximately 3:00 a.m., after the vehicle
crossed the fog line three times and the center line twice. During the stop, Reimers began
to suspect that Knudsen was under the influence of alcohol, and he eventually arrested
Knudsen for driving while impaired. Knudsen stipulated that Reimers “conducted an
investigation . . . which led him to believe that [Knudsen] was driving while impaired”
and that Reimers had probable cause to arrest Knudsen.
Reimers took Knudsen to the Dakota County Jail and read him the standard
implied-consent advisory. During the advisory, Knudsen was told that refusal to take a
test is a crime. Knudsen said that he understood the advisory and did not wish to consult
with an attorney. Reimers offered Knudsen a blood, breath, or urine test. Knudsen
agreed to take a breath test, which revealed a .21 alcohol concentration, and appellant
Commissioner of Public Safety revoked Knudsen’s driver’s license under Minn. Stat.
§ 169A.52, subd. 4(a) (2012).
At the implied-consent hearing on his license revocation, Knudsen challenged
only the admissibility of his warrantless breath test in light of Missouri v. McNeely, 133
S. Ct. 1552 (2013); he waived all other issues. The district court found that the
commissioner failed to prove that Knudsen’s consent to alcohol testing was freely and
voluntarily given because
2 [w]hen the officer asked for [Knudsen’s] consent to conduct an alcohol concentration search in this case, [Knudsen] had already been placed under arrest, transported from [his] vehicle in a squad car to another secure location, and informed that if [he] refused to provide the requested consent, [he] would be charged with a crime. In addition [Knudsen’s] decision making was impaired [by] alcohol which [he] had previously consumed. While [Knudsen] was offered an opportunity to contact counsel to obtain advice regarding [his] decision to consent, no attorney was ever reached and no advice was obtained.
The district court suppressed the evidence obtained from the breath test and rescinded
Knudsen’s license revocation. The commissioner appeals.
DECISION
“In reviewing [district] court rulings on [F]ourth [A]mendment issues, this court
accepts the [district] court’s findings of fact, unless clearly erroneous, but independently
applies [F]ourth [A]mendment case law to the facts so found.” State v. Saffels, 484
N.W.2d 429, 430 (Minn. App. 1992), review denied (Minn. June 1, 1992). The United
States and Minnesota Constitutions guarantee persons the right to be free from
“unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10.
Taking a sample of a person’s blood, breath, or urine constitutes a search that requires
either a warrant or an exception to the warrant requirement. Skinner v. Ry. Labor Execs.’
Ass’n, 489 U.S. 602, 616-17, 619, 109 S. Ct. 1402, 1412-14 (1989); see also State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013) (blood and urine testing), cert. denied, 134
S. Ct. 1799 (2014). “[P]olice do not need a warrant if the subject of the search consents.”
Brooks, 838 N.W.2d at 568.
3 “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 [to a
search].” Id. “‘Consent’ that is the product of official intimidation or harassment is not
consent at all.” Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388 (1991). But
involuntariness of a consent to a police request is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned. Rather, it 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. Consent must be received, not extracted.
State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Consent is coerced when a suspect’s
“will has been overborne and his capacity for self-determination critically impaired.”
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047 (1973).
“‘Voluntariness’ is a question of fact and it varies with the facts of each case.”
Dezso, 512 N.W.2d at 880. In determining whether a person has voluntarily consented to
testing for alcohol concentration, a court must consider “the totality of circumstances,
including the nature of the encounter, the kind of person the defendant is, and what was
said and how it was said.” Brooks, 838 N.W.2d at 569 (quotation omitted). “[T]he
nature of the encounter includes how the police came to suspect [the person] was driving
under the influence, their request that he take the chemical tests, which included whether
they read him the implied consent advisory, and whether he had the right to consult with
an attorney.” Id. For consent to be voluntary, a reasonable person must feel free to
refuse a law-enforcement request. Dezso, 512 N.W.2d at 880. Consent must be more
4 than acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S.
543, 548-49, 88 S. Ct. 1788, 1792 (1968).
In evaluating whether Knudsen consented to testing, the district court did not have
the benefit of the supreme court’s opinion in Brooks because the opinion had not been
released when the order rescinding Knudsen’s license revocation was issued. The
reasoning applied by the district court in this case was largely rejected in Brooks, where
the driver argued that his consent was coerced and he did not truly have a choice of
whether to submit to tests because police told him that if he did not submit, he would be
committing a crime. 838 N.W.2d at 570. The supreme court stated that the driver’s
custodial status was not “dispositive” and 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 the test.” Id. at 570-71. The supreme court also rejected the driver’s argument
based on Bumper, 391 U.S. at 548-49, 88 S. Ct. at 1792, that the driver’s submission to
police authority was merely acquiescence and did not amount to actual consent for
purposes of Fourth Amendment analysis. Brooks, 838 N.W.2d at 571. The supreme
court explained that, unlike the homeowner in Bumper, who believed that police had a
search warrant that she had no right to resist, “the Minnesota Legislature has given those
who drive on Minnesota roads a right to refuse the chemical test” that “police are
required to honor.” Id.
Knudsen argues that factual differences between Brooks and this case call for a
different result. He contends that the circumstances in Brooks included that the driver
“had been arrested on numerous prior occasions for DWI and was very familiar with the
5 implied consent process, ignored the officers’ commands while in custody to the point of
being belligerent, and made repeated calls to his attorneys.” The circumstances of this
case, he argues, “were insufficient to meet the Commissioner’s burden of proving free
and voluntary consent.” But we conclude that, under the Brooks totality-of-
circumstances test, the evidence that the commissioner presented establishes voluntary
consent.
Knudsen conceded that there was probable cause to arrest him on suspicion of
driving while impaired. Reimers took Knudsen into custody and read him the implied-
consent advisory. Knudsen stated that he understood the advisory and did not wish to
consult with an attorney. He agreed to submit to a breath test. There is no evidence that
Reimers acted in anything other than a professional manner when reading the implied-
consent advisory or did anything to influence Knudsen to take the test. The record does
not show that Knudsen’s intoxication affected his ability to consent to testing; Knudsen
participated appropriately during the police encounter, and, in particular, he stated that he
understood the advisory. See State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999)
(affirming district court finding that intoxication did not affect suspect’s consent to a car
search when the suspect was able to communicate and participate appropriately in police
encounter).
Because the evidence does not show that Knudsen’s right to say no was
compromised by a show of official authority or that his will was overborne and his
capacity for self-determination was critically impaired, the district court’s finding that
Knudsen’s consent to testing was not voluntary is clearly erroneous. See Fletcher v. St.
6 Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (defining findings of facts as
clearly erroneous “if the reviewing court is left with the definite and firm conviction that
a mistake has been made”); Grp. Health, Inc. v. Heuer, 499 N.W.2d 526, 529 (Minn.
App. 1993) (stating that notice, which is generally a question of fact to be decided by the
fact-finder, becomes one of law when only one inference is possible from undisputed
facts). We, therefore, reverse the district court’s rescission of Knudsen’s license
revocation.
Because the consent-to-testing issue is dispositive, we do not address other issues
raised by the commissioner.
Reversed.