This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION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
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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.