This opinion will be unpublished and may
not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-99-1079

Jason Anthony Christiansen, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed January 18, 2000
Affirmed
Lansing, Judge
Dissenting, Halbrooks, Judge

Freeborn County District Court
File No. C6981296

Samuel A. McCloud, Kelly Vince Grifitts, Carson J. Heefner, Suite 1000 Circle K, Shakopee, MN 55379 (for appellant)

Mike Hatch, Attorney General, Jeffrey S. Bilcik, Joel Watne, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

Jason Christiansen appeals from a district court order sustaining the revocation of his driving privileges under the implied consent law. Christiansen claims the district court erred in finding that his father voluntarily consented to the entry of two law enforcement agents into his house. Because the district courtís finding of voluntary consent is not clearly erroneous, we affirm.

FACTS

Sheriffís Deputies Todd Earl and John Bowe arrested Jason Christiansen at his fatherís house in October 1998 for driving under the influence of alcohol. At approximately 10:15 p.m. on the night of the arrest, Earl and Bowe responded to a hit-and-run accident report. After obtaining a detailed description of the driver and the vehicle from the victim, they learned that another deputy had located a pickup truck matching the description the victim had given them. Earl and Bowe proceeded to the farm where the pickup had been located and saw it in the driveway. The vehicleís engine was still warm. Earl and Bowe therefore approached the house and knocked on the door.

Christiansenís father answered the door and told Earl and Bowe that his son owned the pickup truck and was inside the house sleeping. Earl asked Christiansenís father to get his son so they could talk to him. Christiansenís father agreed and went in the house. When he returned, he told Earl and Bowe that he could not awaken his son. Earl asked him to try again. Christiansenís father went back in the house, but he returned 20 seconds later claiming he had been unsuccessful.

Earl then asked Christiansenís father twice if he and Bowe could come in. When he declined, Earl told him that they "could go about this a different way such as a warrant or some other means." Christiansenís father then agreed to let one officer in. But because Christiansenís father had only recently completed serving a prison sentence for shooting a police officer, Earl explained to him that, for safety reasons, two officers needed to go in. Christiansenís father then opened the door and said they could both come in. He was cooperative and did not appear angry. Earl described him as "real decent."

When Earl and Bowe entered the house, they found Jason Christiansen sleeping on the couch. Christiansen, who was visibly intoxicated, denied any involvement with the hit-and-run accident but admitted he had been drinking and driving. On the basis of this admission, Earl and Bowe arrested Christiansen for driving under the influence of alcohol. The Commissioner of Public Safety subsequently revoked his driving privileges. On review, the district court sustained the revocation, concluding that Christiansenís father had voluntarily consented to the deputiesí entry into his house. This appeal followed.

D E C I S I O N

We subject voluntary consent claims to "careful appellate review." State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (quoting State v. George, 557 N.W.2d 575, 580 (Minn. 1997)). Whether consent was voluntary is a factual question. George, 557 N.W.2d at 578. We will not overturn a district courtís finding that consent was voluntary unless it appears unequivocally that it was clearly erroneous. State v. Ayalon, 459 N.W.2d 325, 330 (Minn. 1990). A finding of voluntary consent is clearly erroneous if, after reviewing the evidence, the court is left with the definite and firm conviction that a mistake has been made. United States v. James, 40 F.3d 850, 874 (1994). When findings are based on credibility determinations, the reviewing court must give due regard to the opportunity of the fact-finder to judge the credibility and demeanor of the witnesses. Id. The clearly-erroneous standard does not entitle the reviewing court to reverse a finding simply because it would have decided the case differently. United States v. Lattimore, 87 F.3d 647, 651 (4th Cir. 1996) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511-12 (1985)).

A warrantless entry is constitutional if it is made with the voluntary consent of a person in control of the premises. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973); State v. Lotton, 527 N.W.2d 840, 843 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). Consent is voluntary if it is "the product of an essentially free and unconstrained choice by its maker," rather than the product of duress or coercion, express or implied. Bustamonte, 412 U.S. at 225, 93 S. Ct. at 2047. Consent is involuntary, on the other hand, if it results from circumstances that overbear the consenting partyís will and impair his or her capacity for self-determination. Id. at 233, 93 S. Ct. at 2051.

The state has the burden of proving, by a preponderance of the evidence, that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792 (1968); State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999). The state cannot discharge its burden merely by showing acquiescence to a claim of lawful authority or submission in the face of a show of force. Bumper, 391 U.S. at 548-50, 88 S. Ct. at 1792 (consent given pursuant to law enforcement officersí claim of authority to search a home under a warrant held not to be voluntary); State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985). Instead, it must show that "consent [was] received, not extracted." State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).

In determining whether consent was received, the court must consider the totality of the circumstances. Bustamonte, 412 U.S. at 227, 93 S. Ct. at 2048; Dezso, 512 N.W.2d at 880. The totality of the circumstances includes the characteristics of the person giving consent and the environment in which consent was given. Harris, 590 N.W.2d at 102; Dezso, 512 N.W.2d at 880. Courts must consider the age, education, and intelligence of the person consenting; his or her familiarity with the criminal justice system; and whether he or she was under the influence of drugs or alcohol when consenting. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990). But because courts must apply an objective test, Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 2801 (1990), courts must also consider whether law-enforcement officials detained or arrested the person consenting; whether they used threats, intimidation, punishment, promises, or misrepresentations to obtain consent; whether they obtained consent in a public or a secluded place; and whether the person consenting objected or stood by silently. Chaidez, 906 F.2d at 381.

Considering the totality of the circumstances against an objective standard, we cannot say the district court clearly erred in finding that Christiansenís father voluntarily consented to the deputiesí entry. The record contains no evidence that Christiansenís father lacked the maturity, education, or intelligence necessary to give effective consent. Nor does it reflect that he was under the influence of drugs or alcohol, or that he was inexperienced. On the contrary, the record shows that he was experienced with the criminal justice system as a result of a previous felony conviction. His understanding of the criminal justice system weighs against his argument that his consent was not voluntary. See Smallwood, 594 N.W.2d at 155 n.7 ("a defendantís understanding of the criminal justice system weighs against his argument that his consent was not voluntary").

Most important, the record contains no objective evidence of coercion, duress, deception, promises, threats, or other undue influence that critically impaired Christiansenís fatherís judgment. See United States v. Crowder, 62 F.3d 782, 787 (6th Cir. 1995) (a defendant must show "[not only] a subjective belief of coercion, but also some objectively improper action on the part of the police"); Smallwood, 594 N.W.2d at 155 (holding consent voluntary despite defendantís intoxication when record contained no evidence that police acted in threatening way or dealt with defendant in any way other than professionally). The deputies did not display weapons, touch Christiansenís father, or otherwise show force. Their investigatory conduct did not demonstrate a coercive intent or result either. Cf. Deszo, 512 N.W.2d at 880-81 (trooperís questioning of defendant while leaning over him inside a squad car held to be coercive). In addition, even though the exchange took place at night, the surroundings were not coercive in other respects. Christiansenís father was in familiar territory and was not detained or arrested. At all times, he was objectively free to go in the house and close the door. Cf. id. (defendant questioned following a traffic stop, on the highway, at night, after being placed inside a squad car).

Earlís statement that he could go about things "by way of a search warrant" was not necessarily coercive. A baseless threat to obtain a warrant, made for the sole purpose of obtaining submission, may render a personís subsequent consent involuntary. 3 Warren R. La Fave, Search and Seizure ß 8.2(c), at 653 (3rd ed. 1996). But a threat to obtain a warrant supported by probable cause does not necessarily vitiate an otherwise voluntary consent. United States v. Larson, 978 F.2d 1021, 1024 (8th Cir. 1992); State v. Hanley, 363 N.W.2d 735, 739 (Minn. 1985) (statement that a warrant would or could be obtained not coercive). Instead, it is only one factor to be considered when examining the totality of the circumstances. United States v. Severe, 29 F.3d 444, 446 (8th Cir. 1994).

Earlís statement that he could obtain a warrant was supported by probable cause because the pickup truck in the Christiansensí driveway matched the description the victim had given him and the engine was still warm when Earl arrived at the farm. The statement merely informed Christiansenís father of what the deputies had a legal right to do and made him aware of his precise legal situation. See United States v. Faruolo, 506 F.2d 490, 495 (2d Cir. 1974) (when grounds for the issuance of a search warrant exist, "the well founded advice of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion"). The record contains no indication that Earlís reference to a warrant compromised Christiansenís fatherís right to say no.

The same is true of Earlís statement that he could proceed by "some other means." In determining whether consent was voluntary, the court must apply an objective test and decide whether the stateís conduct could reasonably have appeared to the consenting person to be coercive. See Rodriguez, 497 U.S. at 188, 110 S. Ct. at 2801 ("determinations of consent to enter must Ďbe judged against an objective standardí") (citation omitted); Deszo, 512 N.W.2d at 880 (the issue is "Ďwhether a reasonable person would have felt free to decline the officer[ís] requests [for consent] or otherwise terminate the encounterí") (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387 (1991)) (emphasis added). Although Earl did not explain what he meant by "some other means," a reasonable person would likely have understood the statement, in context, to refer to other lawful means similar to obtaining a warrant. Earlís statement would not have overborne the will of an objectively reasonable person, and nothing in the record suggests that it overbore Christensenís fatherís will. In fact, the record suggests the opposite. Although Christiansenís father consented following Earlís statement, he initially limited his consent to only one officer. His ability to limit his consent is significant because it shows that his capacity for self-determination was not impaired. On the contrary, Christiansenís father considered his options calmly and carefully and elected to allow the officers to come in.

Undoubtedly, because he had been recently released from jail and was on probation, Christiansenís father may have been uncomfortable with the exchange with the deputies.[1] Under Minnesota law, however, involuntariness "is not to be inferred simply because the circumstances of the encounter are uncomfortable for the person being questioned." Dezso, 512 N.W.2d at 880. It is possible that Christiansenís father may also have consented on the erroneous belief that his refusal to consent would violate his probation. Any self-conceived misimpressions Christiansenís father may have had about the possible consequences of his refusal to consent, however, do not render his consent involuntary. Crowder, 62 F.3d at 787 n.3 (defendantís impression that officers would arrest his girlfriend if he did not consent did not render his consent involuntary). Similarly, the possibility that Christiansenís father acted out of self-interest and elected to consent to spare himself potential trouble is insufficient to invalidate his consent. See United States v. Mendenhall, 446 U.S. 544, 559, 100 S. Ct. 1870, 1880 (1980) (consent voluntary despite possibility defendant may have acted in her self-interest by voluntarily cooperating with officers in hope of receiving more lenient treatment). The question "is not whether [the person consenting] acted in her ultimate self-interest, but whether she acted voluntarily." Id.

Jason Christiansen argues that Dezso supports his claim that his fatherís consent was involuntary. Dezso is distinguishable, however. Dezso involved a traffic stop, on a highway, at night. The state trooper placed the defendant in the front seat of his squad car and engaged in a series of requests for consent to search his wallet while leaning over toward the defendant. The defendant, unaware of his right to refuse consent, eventually consented, but his answers seemed "not so much to indicate willingness to allow the search[,] as an effort, under intimidating circumstances, to fend off a search with equivocal responses." Dezso, 512 N.W.2d at 881.

In contrast to the facts in Dezso, Christiansenís father was at home during the exchange with Earl and Bowe. The record contains no evidence that deputies Earl and Bowe attempted to intimidate him physically or that their actions resulted in intimidation. Most important, his answers were not equivocal. First he refused to let the deputies in. Then, upon learning that Earl was prepared to seek a warrant, he opened the door and said, "Come on in."

Thus, the record does not establish unequivocally that the district courtís finding of voluntary consent is clearly erroneous. In light of the totality of the circumstances, particularly the absence of objectively improper conduct by the state, Christiansenís fatherís previous experience with the law, and Earlís testimony that he appeared calm and was cooperative, we cannot say that the district court clearly erred in finding that Christiansenís father voluntarily consented to the entry of the two police officers.

Affirmed.

 

HALBROOKS, Judge (dissenting)

I respectfully dissent. Based on the totality of the circumstances, I disagree with the majority that the state met its burden of proving that appellantís fatherís consent was voluntary. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (whether consent is voluntary is based on totality of the circumstances); State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992) (burden is on state to show that consent was given freely).

The trial court found that appellantís father refused the deputiesí request to enter his home the first two times they asked for permission. Appellantís father only consented when the deputies persisted and said that they "could go about this a different way such as a warrant or some other means." Although we need to encourage the police to act efficiently when investigating potential criminal wrongdoing, an individualís right to be free from undesired intrusions into that individualís private residence must still be protected.

To be voluntary, "[c]onsent must be received, not extracted." Dezso, 512 N.W.2d at 880. I believe that the deputiesí persistence, despite appellantís fatherís explicit denials of permission to enter his home, coupled with their remark that they would obtain entry by "some other means" if necessary, was coercive.

The "consent" obtained by the police in this case was even less voluntary than the "consent" obtained by the police in Dezso. In Dezso, the court noted that to determine whether consent was voluntary "the nature of the encounter, the kind of person the [one giving consent] is, and what was said and how it was said" were among the factors to be considered. Id. Applying these factors to this case causes me to conclude that the "consent" in this case was not given voluntarily.

Most significantly, the encounter in this case occurred at appellantís fatherís residence. Individuals have a very high legitimate expectation of privacy in their homes. See State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998) (noting that "a warrantless entry to make an arrest or engage in a search raises issues of the occupantís expectation of privacy and the sanctity the law accords oneís home"). "The constitutional right to be free from unjustified, official invasions of oneís home is basic, and this court will not tolerate its violation." Othoudt, 482 N.W.2d at 224. Second, appellantís father was known by the deputies to be on parole and recently released from prison. As such, he was undoubtedly more susceptible to their persistence in order to avoid the possibility of being accused of violating his parole. Finally, the two deputies refused to accept appellantís fatherís two denials of permission to enter his home. Rather, they persisted in their attempts to obtain his "consent" to enter and indicated that if he continued to refuse that they would get a warrant or enter by "some other means."

This would be a different case if the encounter had occurred in another setting. But the Fourth Amendment offers broad protections in cases involving private residences. Id. at 222. The police were most likely correct when they indicated to appellantís father that they could obtain a warrant to enter his home. They appear to have had probable cause on which a warrant could issue. Appellantís fatherís initial refusal to grant them permission to enter his house should have prompted them to obtain one.

The totality of the circumstances in this case does not support the conclusion that appellantís fatherís consent was given voluntarily. His multiple refusals, coupled with the persistence of the officers and their statement that they would obtain entry with a warrant or by "some other means," made the encounter coercive. I would, therefore, reverse the district courtís order revoking appellantís driving privileges.

 

[1] Because Christiansen's father did not testify at the hearing, arguments based on his state of mind are speculative.