Danika Paige Anastasi v. Commissioner of Public Safety

This opinion will be unpublished and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
A13-1766
Danika Paige Anastasi, petitioner,
Respondent,
vs.
Commissioner of Public Safety,
Appellant.
Filed September 15, 2014
Reversed
Larkin, Judge
Dakota County District Court
File No. 19AV-CV-13-1351
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 Cleary, Chief Judge; Larkin, Judge; and Klaphake,
Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges the district court’s order rescinding the implied-consent
revocation of respondent’s driver’s license. We reverse.
FACTS
After observing a vehicle cross the fog line on a roadway two times, Minnesota
State Patrol Lieutenant Brian Reu stopped the vehicle and identified the driver as
respondent Danika Paige Anastasi. Following a brief investigation, Lieutenant Reu
arrested Anastasi for driving under the influence of alcohol. He transported Anastasi to
the Dakota County Jail and read her Minnesota’s implied-consent advisory. Anastasi
indicated that she understood the advisory and declined to contact an attorney.
Lieutenant Reu asked Anastasi if she would take a breath test; she replied, “sure.” The
results of the test indicated that Anastasi’s alcohol concentration was above the legal
limit.
Based on the results of the breath test, appellant commissioner of public safety
revoked Anastasi’s driver’s license under Minnesota’s implied-consent law. Anastasi
petitioned for judicial review of the license revocation. The district court considered
Anastasi’s arguments that “the United States Supreme Court in Missouri v. McNeely, 133
S. Ct. 1552 (2013), rendered Minnesota’s ‘Implied Consent Law’ unconstitutional, the
alcohol concentration test was obtained in violation of her constitutional rights, the test
should be suppressed, and the revocation should be rescinded.” The district court
ultimately determined that “no unconstitutional condition is imposed by Minnesota’s
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‘Implied Consent Law’”; Anastasi’s “request to have Minnesota’s ‘Implied Consent Law’
declared unconstitutional [on substantive-due-process grounds] shall be denied”;
Anastasi’s breath test “was not conducted in accordance with the United States and
Minnesota Constitutions”; the commissioner failed “to establish an exigency justifying a
warrantless search”; “the circumstances presented in the record are insufficient in this
case to conclude [that Anastasi] ‘freely and voluntarily’ gave consent to the” breath test;
the warrantless breath test was not justified under the “special needs” doctrine; and the
exclusionary rule applies in this case.
In sum, the district court concluded that Minnesota’s implied-consent law is “not
unconstitutional,” but that “the search of [Anastasi] was not conducted in accordance
with the United States and Minnesota Constitutions.” The district court therefore ruled
that “[t]he alcohol concentration evidence derived from the unconstitutional search must
therefore be suppressed and the license revocation rescinded.”
The commissioner appeals.
DECISION
I.
We begin our analysis with the district court’s determination that Anastasi did not
freely and voluntarily consent to the breath test. 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. The collection of a breath
sample is a search under the Fourth Amendment. Mell v. Comm’r of Pub. Safety, 757
N.W.2d 702, 709 (Minn. App. 2008). Warrantless searches are per se unreasonable,
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subject to limited exceptions. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). The
state bears the burden of establishing the existence of an exception to the warrant
requirement. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001). One such exception is
consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973).
“[T]he ‘clearly erroneous’ standard controls [appellate] review of a district court’s
finding of voluntary consent.” State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011).
In State v. Brooks, the supreme court reiterated that the “police do not need a
warrant if the subject of the search consents.” 838 N.W.2d 563, 568 (Minn. 2013), cert.
denied, 134 S. Ct. 1799 (2014). The supreme court described the consent exception to
the warrant requirement as follows:
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. Whether consent
is voluntary is determined by examining the totality of the
circumstances. Consent to search may be implied by action,
rather than words. And consent can be voluntary even if the
circumstances of the encounter are uncomfortable for the
person being questioned. An individual does not consent,
however, simply by acquiescing to a claim of lawful
authority.
....
. . . This analysis requires that we 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 568-69 (quotations and citations omitted).
The supreme court explained that “the nature of the encounter includes how the
police came to suspect [the defendant] was driving under the influence, their request that
he take the chemical tests, which included whether they read him the implied consent
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advisory, and whether he had the right to consult with an attorney.” Id. at 569. The
supreme court concluded that Brooks voluntarily consented to three searches because he
did not dispute that the police had probable cause to believe that he had been driving
under the influence; he did not “contend that police did not follow the proper procedures
established under the implied consent law”; the police read “the implied consent advisory
before asking him whether he would take all three tests, which makes clear that drivers
have a choice of whether to submit to testing”; the “police gave Brooks access to
telephones to contact his attorney and he spoke to a lawyer”; and “[a]fter consulting with
his attorney, Brooks agreed to take the tests in all three instances.” Id. at 569-70. The
supreme court further noted that, although Brooks was in custody, he “was neither
confronted with repeated police questioning nor was he asked to consent after having
spent days in custody.” Id. at 571.
The commissioner relies on Brooks and argues that “the totality of the
circumstances demonstrate that [Anastasi’s] agreement to submit to chemical testing was
freely and voluntarily given.” In finding otherwise, the district court reasoned that when
the officer requested consent, Anastasi had already been placed under arrest, transported
in a squad car to a secure location, and informed that if she refused to consent, she would
be charged with a crime. The district court also reasoned that Anastasi’s decision making
was impaired by alcohol and that, although she was offered an opportunity to confer with
an attorney, she did not communicate with an attorney or obtain legal advice regarding
whether to consent.
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The district court’s analysis is thorough and supported with citations to caselaw.
However, the district court did not have the benefit of the Minnesota Supreme Court’s
decision in Brooks when it made its decision. And under Brooks, the totality of the
circumstances does not suggest that Anastasi was coerced into providing a breath sample.
As in Brooks, Anastasi does not dispute that Lieutenant Reu had probable cause to
believe that she had been driving under the influence or that he followed proper
procedures under the implied-consent law. Lieutenant Reu read Anastasi Minnesota’s
implied-consent advisory. Anastasi indicated that she understood it, and she had the
opportunity to contact an attorney. The fact that Anastasi did not contact an attorney is
not dispositive. See id. at 569 (stating that the totality of the circumstances includes
whether the defendant “had the right to consult with an attorney”). Lastly, when Anastasi
agreed to take a breath test, she had not been confronted with repeated police questioning
or held in custody for an unreasonable period of time.
Anastasi argues that “[w]hile the supreme court in Brooks concluded that there are
extreme circumstances under which a veteran drunk driver would not be intimidated by
the threats inherent in the implied consent process, it by no means suggested that reading
the advisory alone could not overbear the free will of a person arrested for the very first
time.” She asserts that the “evidence shows that [her] submission to the test was far more
likely the result of the trooper’s threat of criminal prosecution” because she was
compliant, had never been arrested before, was impaired by alcohol, was in custody, and
was informed that test refusal is a crime.
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But in Brooks, the supreme court rejected the argument that consent is per se
involuntary because of the attendant threat of a criminal charge for test refusal. See id. at
570 (“[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.”). Moreover,
the supreme court held that Brooks’s consent was voluntary even though he was impaired
by alcohol, under arrest, and in custody. Id. at 565-66, 572. Although the circumstances
here are distinguishable from those in Brooks in that this appears to have been Anastasi’s
first arrest for driving while impaired and she was compliant with law enforcement, those
distinctions do not suggest that her will was overborne. See id. at 571 (“[N]othing in the
record suggests that Brooks ‘was coerced in the sense that his will had been overborne
and his capacity for self-determination critically impaired.’”).
Anastasi also argues that the Brooks holding “is directly contrary to binding
United States Supreme Court precedent” and notes that “Brooks has filed a petition for a
writ of certiorari in the United States Supreme Court, asking the Court to correct the
Brooks decision.” But the United States Supreme Court did not grant the writ. Brooks v.
Minn., 134 S. Ct. 1799 (2014). And although there may be inconsistencies between
Brooks and prior caselaw regarding consent, this court is nonetheless bound to apply and
follow Brooks because we must follow Minnesota Supreme Court precedent. State v.
M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010), review denied (Minn. Sept. 21, 2010).
Under Brooks, Anastasi’s consent was freely and voluntarily given. Because she
agreed to provide a sample of her breath for chemical analysis, a warrant was not
required, and the collection of the sample did not violate the United States or Minnesota
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Constitutions. The district court therefore erred by rescinding the implied-consent
revocation of Anastasi’s driver’s license and reversal is appropriate. Because the
warrantless collection was permissible under the consent exception as applied by the
Minnesota Supreme Court in Brooks, we do not address the commissioner’s alternative
arguments for reversal.
II.
Anastasi contends that the revocation of her license “had to be rescinded because
the criminal test refusal statute is unconstitutional and therefore the implied consent
advisory read to [her] violated her constitutional right to due process of law and the
doctrine of unconstitutional conditions.” The commissioner contends that those
arguments are not properly raised in this appeal. We agree.
“After an appeal has been filed, respondent may obtain review of a judgment or
order entered in the same underlying action that may adversely affect respondent by
filing a notice of related appeal.” Minn. R. Civ. App. P. 106. “To challenge a district
court ruling, a respondent has to file a notice of review, ‘[e]ven if the judgment below is
ultimately in its favor.’”1 State v. Botsford, 630 N.W.2d 11, 18 (Minn. App. 2001)
(quoting City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn. App. 1996), review
denied (Minn. Aug. 6, 1996)), review denied (Minn. Sept. 11, 2001). “‘If a party fails to
file a notice of review . . . , the issue is not preserved for appeal and a reviewing court
1
By order dated October 16, 2009, the supreme court amended the rules of civil appellate
procedure, effective January 1, 2010, to replace the “notice of review” with a “notice of
related appeal.” The 2009 comments to that rule state, in part, that “[t]he new procedure
is not intended to change the scope of appellate review.”
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cannot address it.’” Id. (quoting Holmberg, 548 N.W.2d at 305); see also State v. Bren,
704 N.W.2d 170, 176-77 (Minn. App. 2005) (declining to address an issue raised by
respondent on appeal because respondent did not file a notice of review), review denied
(Minn. Dec. 13, 2005).
In ruling on Anastasi’s petition for judicial review, the district court considered
and rejected her arguments that “the ‘Implied Consent Law’ set forth in Minnesota
Statute[s] §§ 169A.50-.63 creates an ‘unconstitutional condition’” and that “the ‘Implied
Consent Advisory’ violated [her] due process rights under both the United States and
Minnesota Constitutions.” Because Anastasi seeks review of the district court’s adverse
ruling on constitutional arguments that she made in district court and she did not file a
notice of related appeal, the issues are not preserved for appeal, and we do not address
their merits.
Reversed.
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