State of Minnesota v. Bradley Christopher Roehl

SThis opinion will be unpublished and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
A13-1790
State of Minnesota,
Respondent,
vs.
Bradley Christopher Roehl,
Appellant.
Filed August 4, 2014
Affirmed
Reyes, Judge
Hennepin County District Court
File No. 27CR1135419
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Steven M. Tallen, Minneapolis, Minnesota (for respondent)
Peter J. Timmons, Minneapolis, Minnesota (for appellant)
Considered and decided by Cleary, Presiding Chief Judge; Reyes, Judge; and
Stoneburner, Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
REYES, Judge
On appeal from his DWI conviction, appellant argues that the district court erred
by failing to suppress the results of a breath test on the basis that the evidence was
obtained illegally as the product of a warrantless search. We affirm.
FACTS
On November 12, 2011, police stopped appellant Bradley Christopher Roehl on
suspicion of driving while impaired. After failing field sobriety and preliminary breath
tests, Roehl was arrested.
At the police station, the arresting officer read Roehl the implied-consent advisory
for a breath test, as required by Minn. Stat. § 169A.51, subd. 2 (2010). The advisory
informed Roehl, among other things, that refusal to take a test is a crime and that, before
making a decision about testing, he had the right to consult with an attorney. Id. Roehl
stated that he understood the advisory and wished to speak to an attorney. Roehl
contacted his mother and father via telephone and spoke to them before then informing
the officer that he was not going to consult an attorney and would take the test. Roehl’s
breath test yielded an alcohol concentration of .21, which exceeded the legal limit of .08.
The state charged Roehl, in relevant part, with driving while impaired, a gross
misdemeanor under Minn. Stat. § 169A.20, subd. 1(5) (2010). Roehl moved to suppress
the results of the breath test, arguing that the breath test was obtained as the product of an
unconstitutional search and that his consent was improperly coerced. The district court
denied Roehl’s motion and, after a trial on stipulated facts, found him guilty. Roehl
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appealed his conviction, but the appeal was stayed pending the supreme court’s decision
in State v. Brooks, 838 N.W.2d 563 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).
Thereafter, the stay of appeal was dissolved, and the appeal was reinstated.
DECISION
“When reviewing pretrial orders on motions to suppress evidence, we may
independently review the facts and determine, as a matter of law, whether the district
court erred in suppressing–or not suppressing–the evidence.” State v. Harris, 590
N.W.2d 90, 98 (Minn. 1999). We review the district court’s findings of fact under a
clearly erroneous standard, but legal determinations are reviewed de novo. State v.
Bourke, 718 N.W.2d 922, 927 (Minn. 2006).
The United States and Minnesota Constitutions prohibit the unreasonable search
and seizure of “persons, houses, papers, and effects.” U.S. Const. amend. IV; Minn.
Const. art. I, § 10. Taking a sample of a person’s breath constitutes a search under the
Fourth Amendment and requires a warrant. State v. Netland, 762 N.W.2d 202, 212
(Minn. 2009), abrogated in part by Missouri v. McNeely, 133 S. Ct. 1552 (2013), as
recognized in Brooks, 838 N.W.2d at 567. Warrantless searches are per se unreasonable,
subject to limited exceptions. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). One
such exception is consent. Brooks, 838 N.W.2d at 568. “The state bears the burden of
establishing an exception to the warrant requirement.” State v. Ture, 632 N.W.2d 621,
627 (Minn. 2001).
Roehl argues that the warrantless breath test constituted an unreasonable search
and that the district court “incorrectly determined that the requirement of a search warrant
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applied to nothing other than warrantless blood testing.” Roehl also contends that the
district court erred in finding that Roehl’s consent to take the breath test was not
improperly coerced. These arguments are without merit.
The district court did not have the benefit of the Brooks decision when it ruled that
“McNeely is limited to cases involving warrantless nonconsensual blood draws for the
purposes of [alcohol-concentration] testing.” But “we will not reverse a correct decision
simply because it is based on incorrect reasons.” Katz v. Katz, 408 N.W.2d 835, 839
(Minn. 1987). In Brooks, the supreme court applied the holding in McNeely when it
stated that “exigency created by the dissipation of alcohol in the body” alone is not
enough to justify a warrantless search under Minnesota’s implied-consent law. 838
N.W.2d at 567. But it noted that a warrant is not necessary for police officers to test
someone’s breath, blood, or urine if the person voluntarily consents to the search. Id. at
568. Consent must be given “freely and voluntarily” based on the preponderance of the
evidence. Id.
The Brooks court further explained that, to determine whether someone has
voluntarily consented to a search in the implied-consent context, we must consider 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.” Id. at 569 (quoting State v.
Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (quotation marks omitted)). Importantly, “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. When a police
officer reads a person the implied-consent advisory, the officer makes it clear that the
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person has “a choice of whether to submit to testing.” Id. at 572. “While an individual
does not necessarily need to know he or she has a right to refuse a search for consent to
be voluntary, the fact that someone submits to the search after being told that he or she
can say no to the search supports a finding of voluntariness.” Id.Here, the record shows that Roehl voluntarily consented to the breath test. After
Roehl was arrested for driving while impaired and taken to the police station, an officer
read him the implied-consent advisory. There is no evidence in the record that the officer
deviated from the procedures established under the implied-consent law, and the district
court found that the officer followed the implied-consent procedure, including providing
Roehl the opportunity to speak to an attorney. Roehl nonetheless contends that he
cooperated because he was advised by “an armed, uniformed police officer” that failure
to consent was a crime. But Roehl’s consent was not coerced simply because he was
advised that refusal is a crime. Id. at 570. Consent may be voluntary even if given under
uncomfortable circumstances or if giving or withholding consent forces the defendant to
make a difficult choice. Id. And a defendant may consent while in custody, particularly
if his consent does not follow repeated questioning by police or several days in custody.
Id. at 571.
Roehl’s suggestion that his cooperation could have originated from his belief that
he had no other options is not supported by the record. Roehl stated that he understood
the advisory and that he wanted to consult an attorney. But after speaking with his
parents via telephone, Roehl declined the opportunity to speak with counsel, telling the
officer that he was not going to speak with an attorney and would take the breath test.
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The totality of the circumstances shows, as a matter of law, that Roehl voluntarily
consented to the breath test. Accordingly, the district court did not err by denying
Roehl’s suppression motion.
Affirmed.
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