This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Robert Krizak,
Filed June 11, 2002
Anoka County District Court
File No. K6011633
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Patrick J. Sweeney, Michael J. Budka, Sweeney, Borer & Sweeney, 386 North Wabasha Street, Suite 1200, St. Paul, MN 55102 (for appellant)
Thomas R. Hughes, Hughes and Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
The state challenges a pretrial order suppressing evidence of respondent’s intoxication, arguing that the district court erred by determining that the arresting officer exceeded the scope of consent by entering and searching the bedroom in which he discovered respondent. Because the district court did not err, we affirm.
A police officer arrived at respondent Michael Krizak’s house to investigate a report that he was involved in an automobile accident. Monica Krizak, respondent’s wife, invited the officer to step inside the house. The officer asked Krizak whether respondent was home; she replied that she did not know and went to check a bedroom. After returning to the entryway, Krizak told the officer that respondent was in the bedroom. The officer said that he needed to talk with him and, without further discussion with Krizak, walked through the house and into the bedroom, where he found respondent. Krizak did not give the officer express permission to enter or to search the bedroom and did not object as he left the entryway and did so.
After failing field-sobriety and alcohol-concentration tests, respondent was charged with driving while impaired and with leaving the scene of an accident. He moved to suppress all evidence obtained from the officer’s warrantless search of the bedroom, arguing that Krizak did not consent to the search. The district court granted the motion, concluding that the officer exceeded the scope of Krizak’s consent by entering and searching the bedroom. The state appeals.
D E C I S I O N
This court will reverse a pretrial order suppressing evidence only if the state demonstrates clearly and unequivocally that (1) the order will have a critical impact on the state’s ability to prosecute the defendant successfully and (2) the order constituted error. State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998). The parties do not dispute that the critical-impact requirement is satisfied here. The issue, then, is whether the district court erred in suppressing the evidence.
Under the United States and Minnesota constitutions, police officers may not conduct unreasonable searches of houses. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Generally, searches conducted without a warrant are per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967). But a warrant is not required when valid and voluntary consent to search is given. State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992). Valid consent may be given by a third party who possesses common authority over the premises. State v. Thompson, 578 N.W.2d 734, 740 (Minn. 1998). Whether consent was voluntary is a question of fact to be determined from the totality of the circumstances. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). This court will not reverse the district court’s determination of consent unless it is clearly erroneous. State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990).
The state argues that Krizak placed no limits on the officer’s entry of the home and, therefore, the search of the bedroom was within the scope of her consent. But there is support in the record for the district court’s finding that Krizak consented only to the officer’s threshold entry of the house and did not, through her invitation, give consent for the officer to proceed further into the house and conduct a search for respondent. At the suppression hearing, Krizak testified that the officer was outside the home when he asked whether the Krizaks owned a 1989 Ford Ranger pickup truck, the type of vehicle involved in the accident that the officer was investigating. Krizak said that they did and asked the officer to step inside “because the dogs were barking and it was very cold outside.” A reasonable person would not have understood Krizak’s invitation as giving consent for the officer to proceed through the house and conduct a search for respondent. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04 (1991) (describing objective standard for measuring scope of consent as what reasonable person would have understood from exchange between officer and consenter); see also Thompson, 578 N.W.2d at 740.
The state also argues that once the officer was inside the house Krizak extended the scope of her initial consent by telling the officer that respondent was in the bedroom and by not objecting when the officer left the entryway and went to the bedroom. Consent may be implied from a person’s words, gestures, and conduct. State v. Powell, 357 N.W.2d 146, 149 (Minn. App. 1984), review denied (Minn. Jan. 15, 1985). But merely indicating where a person is located in a house does not give a police officer consent to enter. See Othoudt, 482 N.W.2d at 221-22. And “[f]ailure to object is not the same as consent.” Dezso, 512 N.W.2d at 880 (citation omitted). The focus remains on the totality of the circumstances. See id.
Here, the officer asked Krizak whether respondent was home. She said that she did not know, went to check, and returned to the officer to tell him that respondent was in the bedroom. The officer then stated that he needed to talk with respondent and proceeded immediately to the bedroom. The officer did not ask Krizak’s permission to enter the bedroom; he simply walked away from the entryway. Under the totality of the circumstances, we conclude that the district court did not err by finding that the officer exceeded the scope of Krizak’s consent by entering and searching the bedroom.
Respondent moves to strike a portion of the state’s brief on the ground that its appendix contains a document that is not part of the record on appeal. The record on appeal includes papers filed in the district court. Minn. R. Crim. P. 28.02, subd. 8. The document was filed in the district court, and we therefore deny the motion to strike.
Affirmed; motion denied.