Del Roy Lloyd Wendt, III v. Commissioner of Public Safety ( 2015 )

This opinion will be unpublished and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
A14-0913
Del Roy Lloyd Wendt, III, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed March 30, 2015
Affirmed
Smith, Judge
Anoka County District Court
File No. 02-CV-14-163
Charles A. Ramsay, Daniel J. Koewler, Ramsay Law Firm, P.L.L.C., Roseville,
Minnesota (for appellant)
Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and
Smith, Judge.
UNPUBLISHED OPINION
SMITH, Judge
We affirm the district court’s order sustaining the revocation of appellant’s
driver’s license because, if a seizure occurred, it was reasonable, and appellant’s consent
to a breath test was given voluntarily and was not based upon a misstatement of the law.
FACTS
A Blaine police officer, while driving in her squad car, came across a vehicle in a
ditch. She then saw a vehicle stopped in the road while a person later identified as
appellant Del Roy Wendt crossed the street in front of it, walking away from the accident
with a dog in his arms. Wendt saw the squad car as it approached the accident but did not
stop.
The officer tried to get Wendt’s attention to speak to him, but he continued
walking away. In order to speak to Wendt, the officer pulled up near him, turned her
emergency lights on, exited her vehicle, and called out while approaching Wendt. While
talking to Wendt, the officer observed that he was bleeding from the nose, smelled of
alcohol, and had bloodshot, watery eyes. After questioning him and conducting field
sobriety tests, the officer arrested Wendt for driving while impaired.
The officer handcuffed Wendt, put him in her squad car, then read him the implied
consent advisory. The advisory informed Wendt that he was required by Minnesota law
to submit to alcohol testing and could be prosecuted for a crime if he refused. Wendt
invoked his right to contact an attorney before deciding whether to submit to testing. The
officer then transported Wendt to the Blaine Police Department and gave him a phone to
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contact an attorney. While speaking to the attorney, Wendt asked the officer if she would
seek a warrant. The officer replied that she was not required to do so for a breath test.
Subsequently, Wendt submitted to a breath test, which reported an alcohol concentration
of .22.
Respondent Commissioner of Public Safety revoked Wendt’s driver’s license, and
Wendt petitioned for judicial review. The district court sustained the revocation,
concluding that the officer reasonably seized Wendt to conduct a welfare check and to
investigate the accident and that the totality of circumstances demonstrated that Wendt
validly consented to the breath test.
DECISION
I.
Wendt argues that the officer unreasonably seized him after arriving at the
accident scene. “We will not reverse a district court’s findings regarding the legality of a
search and seizure unless the findings are clearly erroneous or contrary to law.” Overvig
v. Comm’r of Pub. Safety, 730 N.W.2d 789, 792 (Minn. App. 2007) (citing In re Welfare
of G.M., 560 N.W.2d 687, 690 (Minn. 1997)), review denied (Minn. Aug. 7, 2007). Both
the United States and Minnesota Constitutions prohibit an unreasonable search and
seizure by the government. U.S. Const. amend. IV; Minn. Const. art. I, § 10. However,
limited seizures to check a person’s welfare or to investigate possible criminal activity
may be reasonable. See State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001); State v.
Lopez, 698 N.W.2d 18, 24 (Minn. App. 2005).
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Without deciding whether a seizure took place or at what point Wendt may have
been seized, we hold that a seizure was reasonable under the circumstances. A police
officer may initiate a limited investigative stop when the officer has a reasonable,
articulable suspicion of criminal activity. Richardson, 622 N.W.2d at 825. To determine
whether an officer has a reasonable suspicion, we look at the totality of the circumstances
and must ensure that the stop is not “the product of mere whim, caprice, or idle
curiosity.” In re Welfare of M.D.R., 693 N.W.2d 444, 448 (Minn. App. 2005) (quotation
omitted), review denied (Minn. June 28, 2005). The district court may consider the
officer’s experience, general knowledge, and observations; background information,
including the time and location of the stop; and anything else that is relevant. Appelgate
v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). “The issue is whether
objective, reasonable, articulable suspicion of a violation of law existed at the time of the
stop.” State v. Beall, 771 N.W.2d 41, 45 (Minn. App. 2009).
Here, the officer found a single-car accident, which may have been the result of
inattentive driving or driving while impaired. The vehicle was empty, and Wendt was the
only person walking in the vicinity. Because the officer observed Wendt walking away
from the vehicle, carrying a dog in his arms, not merely walking a dog, she inferred that
he had come from the vehicle in the ditch. The officer had a duty to investigate why the
vehicle was in the ditch, see Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628
(Minn. App. 1984), and had a reasonable basis for suspecting that Wendt was either the
driver of the vehicle or a possible witness to the accident. Because the officer had a
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reasonable suspicion that a law had been violated resulting in the accident, a seizure was
reasonable.
In addition, a seizure is reasonable in emergencies when (1) the officer is
“motivated by the need to render aid or assistance,” and (2) a reasonable person would
believe that an emergency existed under the circumstances. Lopez, 698 N.W.2d at 23.
“[T]he officer must be permitted to make contact with the individual and ensure that the
individual does not require additional medical assistance.” Id.
Again, the officer found a vehicle in a ditch when weather conditions were poor;
and, under such conditions, a reasonable person would believe that an emergency existed.
The officer suspected that anyone in the car at the time it went into the ditch could be
injured and inferred that Wendt had been in the car because he was walking nearby with a
dog in his arms. The officer testified that she was concerned for Wendt’s welfare. Even
though the officer did not observe any injuries to Wendt before making contact with him,
such an observation is not a prerequisite. The welfare check is to determine if the person
is injured, otherwise many would go unassisted because their injuries were not apparent
at a distance. And, in fact, on closer inspection, the officer observed bleeding from
Wendt’s nose, indicating that Wendt was injured. Consequently, a seizure was
reasonable as a welfare check as well.
II.
Wendt next argues that the state did not meet its burden of proof to show that
Wendt freely and voluntarily consented to the breath test. A breath test is a search under
the Fourth Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109
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S. Ct. 1402, 1413 (1989). Warrantless searches are presumed unreasonable, State v.
Othoudt, 482 N.W.2d 218, 222 (Minn. 1992), and any evidence acquired as a result must
be suppressed, Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16
(1963); State v. Askerooth, 681 N.W.2d 353, 370 (Minn. 2004). However, searches
conducted with valid, voluntary consent are an exception. State v. Brooks, 838 N.W.2d
563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). The state has the burden of
proving voluntary consent by a preponderance of the evidence. Id. “The question of
whether consent is voluntary is a question of fact, and is based on all relevant
circumstances,” Othoudt, 482 N.W.2d at 222, and we therefore review for clear error,
State v. Cox, 807 N.W.2d 447, 450 (Minn. App. 2011).
Wendt contends that the evidence shows that he merely agreed to the breath test
and his agreement was coerced because he was arrested and “repeatedly told that any
attempt to refuse would be considered a crime.” However, the Minnesota Supreme Court
has held that the implied consent advisory is clear that a choice must be made to submit
to testing, that being under arrest at the time the choice is presented “is not dispositive,”
and that the opportunity to consult an attorney supports a finding of voluntary consent.
Brooks, 838 N.W.2d at 571-72. Wendt was not just given the opportunity to speak with
an attorney, he actually did so. Only after speaking with an attorney and asking the
officer questions did Wendt indicate that he understood the advisory and expressly
consented to the test. As in Brooks, Wendt was not subjected to repeated questioning, did
not spend extended time in custody before consenting, or experience any coercive
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elements other than being under arrest. The district court did not clearly err in
determining that Wendt’s consent was voluntary based on the totality of circumstances.
Finally, Wendt argues that his due-process rights were violated because the
implied consent advisory and the officer’s statement misled him into believing that a
warrant was not required and that he must consent to a breath test. Whether Wendt’s
due-process rights were violated is a question of law, which we review de novo. See
Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 413 (Minn. 2007).
Wendt cites McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (Minn.
1991), in support of the proposition that the implied consent advisory cannot be used to
mislead a person about the law. In McDonnell, the supreme court held that the advisory
was misleading because the appellant in that case was informed that she could be
prosecuted for test refusal, when in fact she could not. 473 N.W.2d at 855. At the time,
prosecution for test refusal required a prior license revocation, which the appellant
lacked. See Minn. Stat. § 169.121, subd. 1a (Supp. 1989). Here, Wendt was informed
that he could be prosecuted for test refusal, which was legally accurate. See Minn. Stat.
§ 169A.20, subd. 2 (2012). While Wendt again focuses on the use of the term “require”
to support his argument that the advisory is misleading, the supreme court has held that
the advisory makes clear that one may refuse the test. See Brooks, 838 N.W.2d at 571-
72.
Wendt also contends that he “tried in vain to exercise the right to a warrant” and
was told that one was not necessary in his case, which he argues was a misstatement of
the law. However, we have held that a breath test is a reasonable search, even if
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warrantless, given the weight of the state’s interests in preventing drunken driving and
ensuring road safety against the diminished expectation of privacy that an individual has
when operating a motor vehicle. Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717,
726-30 (Minn. App. 2014). Under Stevens, the officer did not misstate the law. Because
Wendt was not misled, his due-process rights were not violated.
Affirmed.
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