This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Samuel Theodore Tollefson,



Filed August 22, 2000

Affirmed in part, reversed in part and remanded

Toussaint, Chief Judge


Crow Wing County District Court

File No. K1-99-974


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


John J. Sausen, Assistant Crow Wing County Attorney, County Services Building, 322 Laurel Street, Brainerd, MN 56401 (for appellant)


John M. Stuart, Minnesota State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414; and


Patricia Alander Aanes, Erickson & Pearson Law Office, 319 South Sixth Street, P.O. Box 525, Brainerd, MN 56401 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

The state appeals from a pretrial order suppressing statements made by respondent Samuel Theodore Tollefson and dismissing several criminal counts for lack of probable cause.  Because we find no clear and unequivocal error in the district court’s suppression of the statements, we affirm in part.  We reverse in part and remand the dismissal of the criminal counts because we conclude there is sufficient circumstantial evidence that furnishes probable cause, upon which the state could proceed.    



Suppression of the Statements

When the state appeals from a pretrial order in a criminal matter, a reviewing court may reverse only if the state shows clearly and unequivocally both that the order will have a critical impact on the state’s ability to prosecute the defendant successfully and that the order constituted error.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citation omitted).  There is no dispute that the critical impact requirement is met here; the issue is, therefore, whether the district court clearly and unequivocally erred in suppressing Tollefson’s statements.

Once a defendant has clearly and unambiguously invoked his Miranda rights, police interrogation must cease.  State v. Jones, 566 N.W.2d 317, 323 (Minn. 1997) (citations omitted).  However, a defendant waives his Miranda rights if he “initiates further communication, exchanges, or conversations with the police.”  State v. Parker, 585 N.W.2d 398, 405 (Minn. 1998)  (citations omitted).

Tollefson was arrested after several buildings in Brainerd, Minnesota, were vandalized.  At the police station, he was given a Miranda warning.  When he clearly and unequivocally invoked his Miranda rights, the questioning ceased.  The officer testified that Tollefson reopened the dialogue, asking, “What am I being arrested for?” The officer responded, “Burglary and the damage to property.” Tollefson asked, “For the gas station and Dairy Queen?”  The officer responded, “Yes, and many other things.”  Tollefson did not challenge the substance of this exchange and the district court did not suppress it. 

Following this exchange, Tollefson was interrogated and allegedly gave inculpatory statements.  When an accused makes post-Miranda inculpatory statements, the state bears the burden of proving that the accused knowingly, intelligently, and voluntarily waived his right against self-incrimination.  State v. Merrill, 274 N.W.2d 99, 106 (Minn. 1978) (citing Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1628 (1966)). 

Although audio recording equipment was available, none of Tollefson’s statements were recorded because the equipment was not functioning.  Additionally, the officer testified that he could not recall the conversation exactly. 

[A]ll custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.  If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial.


State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).  The purpose of this exclusionary rule is to avoid factual disputes underlying an accused’s claims that the police violated his constitutional rights.  Id. at 591-92.     The district court properly suppressed these statements because the state did not meet its burden of showing that Tollefson knowingly, intelligently, and voluntarily waived his right against self-incrimination.  See also State v. Munson, 594 N.W.2d 128, 143 (Minn. 1999) (suppressing a defendant’s statements because “the adverse consequences of a factually deficient record must fall on the state.”).

Following the interrogation, Tollefson was put into a cell and he fell asleep.  Approximately one hour later, the officer woke him and began questioning him again.  This time, the officer properly tape-recorded Tollefson’s statements.  However, the officer neither gave Tollefson another Miranda warning nor asked if he had changed his mind about invoking his right to remain silent.  Tollefson never explicitly waived his Miranda rights.

An appellate court must make an independent determination based on the totality of the circumstances as to whether a defendant’s statement was voluntary.  State v. Miller, 573 N.W.2d 661, 673 (Minn. 1998).  Here, Tollefson appeared intoxicated; he was asleep and behaved truculently when he was awakened.  Under the totality of the circumstances, Tollefson did not voluntarily waive his right to remain silent.  Therefore, the district court did not clearly and unequivocally err in suppressing Tollefson’s statements.


 Circumstantial Evidence

            After the district court suppressed Tollefson’s statements, it found that the remaining evidence “would not preclude the granting of a motion for a directed verdict of acquittal” on several of the criminal charges.  We disagree.  This evidence includes: (1) footprints at one of the vandalized buildings; (2) a witness who stated that he saw a male, approximately 20, wearing a white tee-shirt, yelling and screaming and making a scene near one of the vandalized buildings; and (3) a 911 call reporting a drunk individual who was swearing loudly and who had just broken a window near one of the vandalized buildings.  When Tollefson was arrested, he was walking down a street barefoot, shirtless, and bleeding.  He said to the officer,

It’s about time you guys caught me, it took you long enough.  * * * This will get my dad’s attention.  My dad will start paying attention to me now.


The arresting officer testified that Tollefson was swearing and smelled of alcohol.  Moreover, Tollefson’s questions, “What am I being arrested for? * * * For the gas station and Dairy Queen?” were not suppressed.  Therefore, we conclude that the state has sufficient circumstantial evidence upon which it can proceed.     

Affirmed in part, reversed in part and remanded.