This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Philip Dean Nereson,



Filed April 30, 2002


Shumaker, Judge


Dakota County District Court

File No. K7011167


Mike Hatch, Attorney General, Suite 1100, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)


Peter C. Mayrand, P.O. Box 120884, St. Paul, MN 55112; and


John M. Stuart, State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for respondent).


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N




            The state appeals from a pretrial order suppressing marijuana found in respondent’s apartment.  The state argues that the district court clearly erred in ruling that respondent did not impliedly consent to the warrantless entry.  Because the facts support the ruling, we affirm.


            On the morning of April 8, 2001, two police officers went to investigate a complaint of an odor of marijuana generally coming from a stairwell area in the apartment building where respondent lived.  In the stairwell area were pipes that went down through the floor and through a storage closet in respondent’s apartment.

            After the officers located respondent’s apartment, one of the officers knocked on the outer screen door and respondent opened the interior door.  Respondent was dressed only in boxer shorts and had been sleeping.  The officers informed him that they were there to investigate a complaint of “an odor of a strange smell possibly coming from his apartment.”  The officers did not use force, or threats of force, or command respondent to open the door.  Respondent conceded that the officers’ manner was polite and quiet.

One of the officers testified that when respondent opened the outer door the officer placed his hand on the door, and respondent stepped back from the doorway area.  Both officers then entered the apartment without objection from respondent.  Respondent, on the other hand, testified that he never opened the outer door for the officers.  At some point after the officers entered his apartment, respondent went into his bedroom to get dressed.   Respondent never asked the officers to leave.

            After one officer informed respondent that the smell might be coming from a stairwell area, respondent led both officers to a storage closet door.  Respondent opened the door and turned on the closet light.  When the officer leaned his head closer to the closet, he smelled unburnt marijuana.  The officer moved a box by its handle to determine if the smell could be coming through a floor grate in the closet.  But as he moved the box, the top opened and the officer could see a baggie of marijuana inside.  Respondent refused to comply with the officer’s subsequent request to search the closet.  Thereupon, the officer told respondent that he had already found the box of marijuana. 

The officers arrested respondent for felony possession of marijuana.  The district court suppressed the marijuana found in respondent’s apartment and all statements respondent made to the police, concluding that respondent had not voluntarily consented to the search.  The state appealed the pretrial suppression order.


            On a state’s appeal of a pretrial suppression order, the state must prove both that the suppression of evidence will have a critical impact on the state’s ability to prosecute the case and that the suppression order was in error.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998). 

As a threshold issue, the reviewing court must first determine whether the suppressed evidence significantly decreases the state’s chances of successfully prosecuting the case.  Id.  In this case, the state will not have a case against respondent for a controlled substance crime and possession of drug paraphernalia without the evidence of the marijuana.  Thus, the evidence has a critical impact on the state’s ability to prosecute.

When an appellate court reviews a district court's order on a motion to suppress evidence and the facts are not disputed, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  If the evidence is in dispute, the district court makes findings of fact, which we review under the clearly erroneous standard.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  This court will not disturb a district court’s findings of fact unless the findings are without substantial evidentiary support or were induced by an erroneous view of law.  Reserve Mining Co. v. State, 310 N.W.2d 487, 490 (Minn. 1981).

The state argues that the district court failed to make specific findings or a credibility determination and simply recited conflicting testimony.  We disagree.

A district court must affirmatively state its findings and not simply recite a party’s testimony.  See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (prefacing statements with phrases such as “petitioner claims” and “respondent asserts” are not true findings).  However, such recitation may be helpful in understanding the district court’s consideration in making its findings.  Id.

Here, the district court’s findings reflect the conflict in the testimony between the police officers and respondent as to who opened the outer screen door.  In finding number 10, the court prefaces its statements with phrases such as “defendant testified” and “defendant stated.”  By doing so, the district court did not make a specific finding, but merely recited respondent’s testimony.  As to the findings regarding the police officers’ testimony, however, the court uses affirmative statements showing its acceptance of the officers’ version of events.  The court thus made a credibility determination and its findings and conclusions indicate that the court believed the officers’ testimony that respondent opened the outer screen door to his apartment.  Our review of the record indicates that the findings are supported by the transcript testimony and are not, therefore, clearly erroneous.

The court then concluded as a matter of law that, based on the totality of the circumstances, the state had not shown that respondent voluntarily consented to the police entry into his apartment.  Although the reviewing court defers to district court findings of fact, this court must independently apply the law to those facts.  State v. Eggersgluess, 483 N.W.2d 94, 96 (Minn. App. 1992).  The legality of an arrest and any suppression of evidence, whether based on facts not in dispute or on facts as found, are legal conclusions, which we review as questions of law.  City of St. Louis Park v. Berg, 433 N.W.2d 87, 89 (Minn. 1988).

The state agrees that the focus of this case is the interpretation of respondent’s conduct as either showing his implicit consent to the officers’ entry or as indicating merely his acquiescence to a show of the officers’ authority.  The district court interpreted the conduct as demonstrating the latter.  The state contends this interpretation was erroneous.

Normally, police may not search a person’s home without a warrant unless the police can show that they entered the home either with consent or with probable cause and exigent circumstances.  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).  “A consent is valid if it is given voluntarily and without coercion.”  Pullen v. Comm’r of Pub. Safety, 412 N.W.2d 780, 782 (Minn. App. 1987) (citing United States v. Briley, 726 F.2d 1301, 1304 (8th Cir. 1984)).    Whether consent is voluntary is a fact question to be determined from the totality of all the circumstances.  Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059 (1973).  The totality of the circumstances includes “the nature of the encounter, the kind of person [respondent] is, and what was said and how it was said.”  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1984). 

The state has the burden of showing that respondent freely consented.  Othoudt, 482 N.W.2d at 222.  The state contends that respondent’s actions revealed his implicit consent for the officers’ entry into his apartment.  The state argues that when respondent opened the outer screen door and stepped back, he was inviting the officers inside, albeit nonverbally.  And, once the officers were inside, respondent did not ask them to leave, but instead led them to the storage closet door and opened it.  Consent may be implied by a person’s actions in light of all relevant circumstances.  Id.  But failure to verbally object is not the same as consent.  Dezso, 512 N.W.2d at 880. 

In this case, respondent answered his apartment door in his boxer shorts during midmorning after being awakened by the police officer’s knocking.  Respondent had not summoned the officers to his apartment, nor is there evidence that respondent had any prior contact with these officers.  See State v. Buschkopf, 373 N.W.2d 756, 768 (Minn. 1985) (noting that, in Minnesota caselaw, consent may be inferred if a defendant participates in summoning, cooperates with investigation, and exhibits some affirmative act or intent that the police conduct the search); see also State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (finding consent to enter when respondent opened inner door and stepped back when viewed in light of respondent’s prior contacts with the police and continuing voluntary cooperation).

It is not disputed that the officers’ demeanor was pleasant and that there was no overt threat of force or coercion.  See Dezso, 512 N.W.2d at 880 (stating that due process is violated if the encounter becomes coercive and the right to refuse a search is compromised by a show of official authority).  But, mere acquiescence in the face of police authority does not establish voluntary consent.  State v. Lembke, 509 N.W.2d 182, 184 (Minn. App. 1993). 

It is also not disputed that the officers failed to inform respondent that they were searching for marijuana and stated only that they were investigating a “suspicious odor.”  One officer even stated at some time during the encounter that the odor might be coming from “rotting food.”  If police officers misrepresent their purpose to obtain consent to search, any consent can be invalidated.  State v. Schweich, 414 N.W.2d 227, 230 (Minn. App. 1987) (invalidating consent where police intended scope of search to include drugs but misled respondent into believing search was necessary only to locate weapons). 

Considering the totality of the circumstances, including that respondent answered the door in his boxer shorts after waking up, there were no prior contacts with these officers, and the officers misled respondent to believe that they were investigating a complaint of a strange odor but did not specify marijuana, we hold that the district court did not clearly err in concluding that respondent did not consent to the officers’ entry but merely acquiesced to police authority.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.