Jeremy Ray Johnson 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This opinion will be unpublished and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 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1854
Jeremy Ray Johnson, petitioner,
Appellant,
vs.
Commissioner of Public Safety,
Respondent.
Filed May 11, 2015
Affirmed
Chutich, Judge
Crow Wing County District Court
File No. 18-CV-14-1127
Richard Kenly, Backus, Minnesota (for appellant)
Lori Swanson, Attorney General, Elizabeth Oji, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Chutich, Judge; and
Kirk, Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Jeremy Johnson challenges the revocation of his driver’s license.
Johnson argues that he was under arrest before taking field sobriety tests and that his
consent to the breath test was coerced. Because we conclude that Johnson was not under
arrest until after his field sobriety tests were taken and he voluntarily consented to the
breath test, we affirm.
FACTS
At 1:35 a.m. on March 20, 2014, while on patrol, Officer Ann Hunnicutt received
a dispatch call that a truck had hit a mailbox and was stuck in a ditch. As Officer
Hunnicutt approached the reported location, she saw a truck pulling out of the ditch.
Officer Hunnicutt activated the emergency lights on her unmarked car, stopped, got out,
and yelled “police—you need to stop.” The truck stopped, and Officer Hunnicutt
approached the driver’s door.
After identifying the driver as Johnson, Officer Hunnicutt told him that she had
stopped him because he appeared to be leaving the scene of an accident involving a
damaged mailbox. Officer Hunnicutt detected the odor of alcohol coming from Johnson
and observed that he had slow, slurred speech and bloodshot, watery eyes. When asked
whether he had been drinking, Johnson initially said he had not but later said he had
consumed two beers. Johnson admitted to hitting the mailbox, and damage on Johnson’s
truck corroborated that admission.
Officer Hunnicutt instructed Johnson to perform field sobriety tests, and Johnson
complied. Officer Hunnicutt then asked Johnson to take a preliminary breath test and
Johnson refused, at which point Officer Hunnicutt informed Johnson that she was
arresting him for driving while impaired. Soon after, Johnson decided to comply with the
preliminary breath test, which revealed an alcohol concentration of .158.
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Officer Hunnicutt transported Johnson to the county jail, where she read him the
implied consent advisory. Officer Hunnicutt asked Johnson if he understood, and he said
that he did. Officer Hunnicutt then offered Johnson the opportunity to consult with an
attorney, and he was able to speak with an attorney.
Afterwards, Officer Hunnicutt asked Johnson if he would consent to a breath test.
Johnson asked a question about refusal to take the test. In response, Officer Hunnicutt
reread item number 2 of the advisory, “Refusal to take the test is a crime.” Johnson said
that he understood. When Officer Hunnicutt asked Johnson again if he would consent to
the test, he responded “yes.” Officer Hunnicutt did not obtain a warrant for the test. The
test revealed an alcohol concentration of .20 and the commissioner of public safety
revoked Johnson’s driver’s license.
Johnson petitioned the district court to rescind his license revocation. The district
court concluded that Officer Hunnicutt had reasonable and articulable suspicion to seize
and probable cause to arrest Johnson for driving while impaired. The district court also
concluded that Johnson had voluntarily consented to the breath test. As a result, the
district court sustained the revocation of Johnson’s license. Johnson appealed.
DECISION
I. De Facto Arrest
Johnson first argues that the results of his preliminary breath test and field sobriety
tests should have been excluded because he was de facto under arrest from the time that
Officer Hunnicutt instructed him to step out of his truck. The commissioner argues that
Johnson waived his de facto-arrest argument by not raising it before the district court.
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This court does not address issues on appeal that were not presented to and
considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). An
issue is not waived where the district court had the opportunity to consider the issue. See
Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 522-23 (Minn. 2007)
(distinguishing the argument waived in Thiele, which was “never litigated below,” from
an argument raised on appeal that was a refined version of an argument raised below);
Thayer v. Am. Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (holding that an
issue is not proper for consideration on appeal where the trial court did not have the
opportunity to consider the issue), abrogated on other grounds by Onvoy, Inc. v. SHAL,
LLC, 669 N.W.2d 344 (Minn. 2003).
Here, Johnson did not waive the de facto-arrest issue because his post-hearing
brief discussed the de facto-arrest issue. Although the district court order did not
comment on this issue, the court had the opportunity to consider it because it was on the
record when the district court issued its order.
Even considering Johnson’s de facto-arrest argument, however, it is unconvincing
under the circumstances present here. This court independently reviews the district
court’s conclusion as to whether a person is in custody at a given time. State v. Mellett,
642 N.W.2d 779, 787-88 (Minn. App. 2002), review denied (Minn. July 16, 2002).
Whether a suspect is under arrest requires an objective inquiry into whether a reasonable
person in the suspect’s situation would have understood that he was in custody to the
degree associated with an arrest. Id. at 787. General on-scene questions—including the
questions “have you been drinking?” and “how much?”—do not convert a detention into
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an arrest. State v. Kline, 351 N.W.2d 388, 390 (Minn. App. 1984). Nor is a detention
necessarily converted to an arrest where the officer instructs the suspect to leave his car
and instructs the suspect to take a preliminary breath test and to perform field sobriety
tests. State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986); Mellett, 642 N.W.2d at 788.
The audio recording of the interaction between Officer Hunnicutt and Johnson
shows that Officer Hunnicutt did not use any special show of force that would make a
reasonable person think Johnson was under arrest. Officer Hunnicutt spoke to Johnson in
an authoritative but reasonable tone and asked him general questions about whether he
had been drinking and where he was going. Officer Hunnicutt provided extensive
instructions for the field sobriety tests she asked Johnson to perform and addressed
Johnson as “sir.” She did not handcuff Johnson or inform him that he was under arrest
until after he refused to take the preliminary breath test. Given these facts, Johnson was
not under arrest before Officer Hunnicutt informed him that he was under arrest.
Accordingly, the district court properly admitted the results of the field sobriety tests and
preliminary breath test.
II. Exception to Warrant Requirement
Johnson also argues that the results of his chemical breath test are inadmissible
because they were the product of an unconstitutional search. The United States and
Minnesota Constitutions guarantee the right to be secure against unreasonable searches
and seizures. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. The taking of a breath
test is a search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct.
1402, 1413 (1989). A search is generally unreasonable unless conducted under a warrant
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issued upon probable cause. Id. at 619, 109 S. Ct. at 1414. Several exceptions apply to
the warrant requirement, but Johnson asserts that the state did not establish that any
exception applies here.
A. Consent Exception
One exception to the warrant requirement is consent to the search. State v. Diede,
795 N.W.2d 836, 846 (Minn. 2011) (citing Schneckloth v. Bustamonte, 412 U.S. 218,
219, 93 S. Ct. 2041, 2043-44 (1973)). For consent to be valid, the state must prove by a
preponderance of the evidence that the defendant freely and voluntarily consented. State
v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied, 134 S. Ct. 1799 (2014).
Voluntary consent is that given “without coercion or submission to an assertion of
authority” so that a reasonable person would feel free to decline law enforcement’s
requests or otherwise terminate the encounter. State v. Dezso, 512 N.W.2d 877, 880
(Minn. 1994); see also Schneckloth, 412 U.S. at 225-26, 93 S. Ct. at 2047 (stating that
consent is involuntary if the suspect’s “will has been overborne and his capacity for self-
determination critically impaired”). “Whether consent was voluntary is determined by
examining 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.” Diede, 795
N.W.2d at 846 (quotations omitted).
The district court found that Johnson’s consent to a breath test was voluntary.
This court reviews the district court’s finding of voluntariness under the clearly erroneous
standard. Id. Clear error occurs when “we are left with the definite and firm conviction
that a mistake occurred.” Id. at 846-47.
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Johnson’s first argument challenging the voluntariness of his consent is that the
implied consent advisory is necessarily coercive because it includes the warning that test
refusal is a crime in Minnesota. This argument is without merit. Under State v. Brooks, a
driver’s consent to a chemical test may be voluntary even if the driver is informed that
refusal to submit to testing is a crime because the implied-consent advisory states clearly
that a person has a choice whether to submit to testing. 838 N.W.2d at 570-71.
Johnson’s second argument is that the totality-of-the-circumstances test does not
support the conclusion that Johnson’s consent was voluntarily given. Johnson does not
raise any specific error that the court made in applying the totality-of-the-circumstances
test. Johnson merely asserts that Officer Hunnicutt’s tone of voice and demeanor toward
him created a coercive environment.
The district court’s order thoroughly discussed each prong of the totality-of-the-
circumstances test, comparing the facts of Johnson’s case to the facts that the Brooks
court used to support a finding of voluntary consent. In reaching the conclusion that
Johnson voluntarily consented to the test, the district court emphasized that (1) Johnson
had an opportunity to speak with an attorney; (2) Officer Hunnicutt correctly read
Johnson the implied-consent advisory; and (3) Officer Hunnicutt’s actions and demeanor
toward Johnson were appropriate. Our review of the record, including listening to the
audio recording of the initial encounter between Johnson and Officer Hunnicutt, does not
lead us to conclude that the district court erred by finding that Johnson voluntarily
consented to the breath test.
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B. Search-Incident-to-Arrest Exception
Another exception to the warrant requirement is for searches incident to a lawful
arrest. In State v. Bernard, the supreme court recently held that “a warrantless breath test
does not violate the Fourth Amendment because it falls under the search-incident-to-a-
valid-arrest exception.” 859 N.W.2d 762, 767 (Minn. 2015). Here, as in Bernard, the
officer had probable cause to arrest Johnson for driving while impaired. Under Bernard,
the search-incident-to-arrest exception also justified giving Johnson a breath test without
first securing a warrant.
Affirmed.
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