State of Minnesota v. Terry Gene Anderson ( 2014 )

This opinion will be unpublished and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
A13-1376
State of Minnesota,
Respondent,
vs.
Terry Gene Anderson,
Appellant.
Filed August 11, 2014
Affirmed
Reilly, Judge
Meeker County District Court
File No. 47-CR-12-1057
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Anthony D. Spector, Meeker County Attorney, Ricky Fidelis Lanners, Assistant County
Attorney, Litchfield, Minnesota (for respondent)
John E. Mack, Mack & Daby P.A., New London, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Reilly, Judge; and
Stoneburner, Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
REILLY, Judge
On appeal from his driving while impaired convictions, appellant Terry Anderson
argues that his convictions must be reversed because (1) his consent to a warrantless
breath test was not voluntary; and (2) Minnesota’s implied-consent laws are
unconstitutional regulations of speech. Because the record demonstrates that Anderson
voluntarily consented to the breath test and he has not demonstrated that the implied-
consent laws are unconstitutional, we affirm.
FACTS
The facts are undisputed. Around midnight on October 27, 2012, Minnesota State
Patrol Sergeant Meagher noticed that the driver of a truck was not wearing a seatbelt.
Sergeant Meagher activated his emergency lights. Because there was no reaction from
the driver, later determined to be Anderson, Sergeant Meagher then activated his siren.
After traveling for three city blocks, Anderson pulled over onto the shoulder. As
Sergeant Meagher approached the truck, Anderson attempted to roll down the window
but, instead, opened the door and almost fell out of the driver’s seat.
Sergeant Meagher requested Anderson’s driver’s license and questioned him about
his lack of seatbelt. During this time, Sergeant Meagher smelled the strong odor of an
alcoholic beverage coming from inside the truck. After Anderson struggled to produce
his driver’s license, Sergeant Meagher conducted field sobriety tests, none of which
Anderson successfully performed. Sergeant Meagher then administered a preliminary
breath test. The breath test indicated an alcohol concentration of .194.
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Sergeant Meagher arrested Anderson for driving while impaired (DWI) and, while
still at the scene of the traffic stop, read the Minnesota motor vehicle implied-consent
advisory form to Anderson. In reading the implied-consent advisory form, Sergeant
Meagher informed Anderson that Minnesota law requires him to take a test to determine
whether he is under the influence of alcohol; that refusing to take the test is a crime; that
he has the right to consult an attorney; and that any unreasonable delay is considered a
refusal. Anderson confirmed he understood the advisory, declined to consult with
counsel, and agreed to take a breath test. After Sergeant Meagher drove Anderson to the
Meeker County jail, Sergeant Meagher administered the breath test at approximately
12:48 a.m. This test revealed an alcohol concentration of .21. Anderson had a prior DWI
conviction.
Anderson moved to suppress the breath-test evidence, arguing that Minnesota
Statute section 169A.20 is unconstitutional under Missouri v. McNeely, 133 S. Ct. 1552
(2013), because it compels a warrantless search. The district court held a bench trial on
stipulated facts pursuant to Minnesota Rule of Criminal Procedure 26.01, subd. 4 and
State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).
In its order, the district court rejected appellant’s argument that McNeely
prohibited a warrantless breath test. Instead, the district court limited the holding of
McNeely to blood tests and also found that Anderson consented to the breath test. The
district court also rejected Anderson’s argument that the implied-consent statute is
unconstitutional and denied Anderson’s motion to suppress the test results and dismiss
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the complaint. The district court convicted Anderson of two counts of second-degree
driving while impaired. Anderson appeals.
DECISION
Anderson contends the district court erred by denying his motion to suppress
evidence of his breath test, asserting that the test was a warrantless compelled search.
Because the facts are undisputed, the district court’s suppression order presents a
question of law that we review de novo. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.
1992).
The federal and state constitutions guarantee the right to be secure against
unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1, § 10.
Testing a person’s breath constitutes a search under the Fourth Amendment and generally
requires a warrant. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 616-17, 109 S. Ct.
1402, 1412-13 (1989); State v. Netland, 762 N.W.2d 202, 212 (Minn. 2009), abrogated
in part by McNeely, 133 S. Ct. 1552, as recognized in State v. Brooks, 838 N.W.2d 563,
567 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014). Warrantless searches are
unreasonable unless the state proves that an exception to the warrant requirement applies.
State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007). Consent is an exception to the
warrant requirement if the state can show by a preponderance of the evidence that a
defendant “freely and voluntarily” consented to the search. State v. Diede, 795 N.W.2d
836, 846 (Minn. 2011).
In determining whether consent is voluntary, this court considers the totality of the
circumstances, “including the nature of the encounter, the kind of person the defendant is,
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and what was said and how it was said.” Diede, 795 N.W.2d at 846. In the implied-
consent context, the nature of the encounter includes why law enforcement suspected that
the driver was driving under the influence, how law enforcement requested submission to
chemical testing, including whether the driver was read the implied-consent advisory, and
whether the driver had the ability to consult with an attorney. Brooks, 838 N.W.2d at
569.
In Brooks, the supreme court held that the driver’s consent to testing was
voluntary because he did not challenge the probable cause that he had been driving under
the influence, he was properly read the implied-consent advisory, he consulted with an
attorney before consenting to testing, and he was not subjected to repeated police
questioning nor did he spend a prolonged period in custody. Id. at 571-72. The Brooks
court established that the criminal penalties for refusing a chemical test do not invalidate
consent that is otherwise voluntary under the totality of the circumstances. Id. at 570-71
(“[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.”).
Here, the circumstances surrounding Anderson’s arrest and chemical testing are
substantially similar to those that the Brooks court held satisfactorily demonstrated
voluntary consent. Anderson does not challenge that Sergeant Meagher had probable
cause to arrest Anderson for DWI. Sergeant Meagher read Anderson the implied-consent
advisory, and Anderson told Sergeant Meagher that he understood the advisory and that
he did not wish to speak to an attorney. There is nothing in the record to suggest that law
enforcement subjected Anderson to repeated questioning or prolonged custody.
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Anderson attempts to distinguish Brooks from his case because Anderson did not
speak to an attorney before consenting. In Brooks, although the defendant did consult
with an attorney before submitting to the chemical test, this fact is not dispositive when
reviewing the voluntariness of the consent. Brooks stated only that the driver should
have the ability to consult with an attorney. Id. at 572 (explaining that “the ability to
consult with counsel about an issue supports the conclusion that a defendant made a
voluntary decision”). Here, Sergeant Meagher gave Anderson the opportunity to consult
with an attorney, but Anderson declined to do so. Because the circumstances establish
that Anderson freely and voluntarily consented to the breath test, the district court did not
err in declining to suppress the breath-test results.
Anderson also argues that Brooks is simply wrong. We are obligated to follow
Minnesota Supreme Court precedent. State v. Peter, 825 N.W.2d 126, 129 (Minn. App.
2012), review denied (Feb. 27, 2013). Moreover, the United States Supreme Court
recently denied the petition for writ of certiorari in Brooks. 134 S. Ct. 1799 (2014).
Thus, Anderson’s assertion that subsequent review of Brooks will provide relief under the
facts of this case is meritless.
Finally, Anderson argues that Brooks does not dispose of his First Amendment
constitutional claim because requiring an individual to say “yes” or “no” to an implied-
consent advisory is a form of compelled protected speech and compelling this speech
violates his First Amendment rights under both the United States and Minnesota
Constitutions. We presume that a statute is constitutional. State v. Behl, 564 N.W.2d
560, 566 (Minn. 1997). The “power to declare a statute unconstitutional should be
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exercised with extreme caution and only when absolutely necessary.” Id. A party
challenging the constitutionality of a statute bears a “very heavy burden” on appeal and
must demonstrate that the statute is unconstitutional beyond a reasonable doubt. State v.
Johnson, 813 N.W.2d 1, 11 (Minn. 2012). We review de novo a district court’s ruling on
the constitutionality of a statute. Id. at 4.
A review of the record reveals that Anderson did not raise his First Amendment
argument in any of his previous filings or motions to the district court. We decline to
consider a constitutional challenge when it is not raised before and acted upon by the
district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (“This court
generally will not decide issues which were not raised before the district court, including
constitutional questions of criminal procedure.”). Even if we were to address the merits
of this argument, Anderson’s reliance on two inapposite United States and Minnesota
Supreme Court cases does not satisfy the heavy burden of demonstrating that the implied-
consent statutes are unconstitutional.
Affirmed.
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