This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Joshua Edward Carlson,




Filed August 19, 2003

Forsberg, Judge


Pine County District Court

File No. K401162


Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


John K. Carlson, Pine County Attorney, 315 Main Street South, Suite 8, Pine City, MN  55063 (for respondent)


John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N


After being convicted of second-degree murder, appellant argues that the district court erred when it (1) found a search lawful and declined to suppress the evidence, (2) ruled that he had not invoked his right to counsel, and (3) ruled that he made a knowing, voluntary, intelligent waiver of his Miranda rights.  Because the district court did not err, we affirm.


            Appellant Joshua Edward Carlson lived in a downstairs bedroom of his father, Richard Carlson’s home.  Kathy Brandt, a friend of Richard Carlson’s, lived in a trailer on the property.  When Richard Carlson gave Brandt a key to his house, he told her, “mi casa es su casa” (my house is your house). 

            Richard Carlson spoke with Brandt daily and she spent time at the house doing their laundry.  Brandt last spoke with Richard Carlson on January 28, 2001.  Having not heard from him for a few days, Brandt became concerned and placed repeated calls to him, but received no response.  Brandt noticed that appellant was driving his father’s truck, which was something he had never done before.  She asked appellant at least twice if he had heard from his father.  In denying he had seen his father, appellant appeared nervous, acted suspicious, and made no eye contact with Brandt.

            On February 12, 2001, Brandt went to the residence.  She noticed the laundry room door was locked.  As she was attempting to unlock the door, she heard a noise and went to investigate.  Brandt saw appellant and asked him why the laundry room door was locked.  He told her he was making drugs in the room, but Brandt did not believe him. 

            On that same day, Richard Carlson’s daughter and son-in-law called Sergeant Dwain Wilson of the Pine County Sheriff’s Department, to express their concern because they had not seen or heard from Carlson in several weeks.  Brandt also informed Wilson of her recent observations.

            Brandt let Wilson into the house when he arrived to check on Richard Carlson’s welfare.  Wilson tried to open the laundry room door, but it was locked.  With Brandt’s knowledge and no objection, Wilson used a screwdriver to open the door.  Once inside the laundry room, Wilson found Richard Carlson’s body. 

            On February 13, 2001, Investigator Matt Ludwig interviewed appellant at the Burnett County Detention Center.  During the interview, appellant said he had been awake the last five or six days taking methamphetamine.  Ludwig testified that he had experience observing people who are under the influence of drugs and people who are severely sleep deprived.  Ludwig testified that during the interview appellant did not behave as if he were sleep deprived nor did he act as if he were under the influence of drugs, thus preventing him from understanding his Miranda rights.  In addition, Ludwig testified that he believed appellant gave appropriate answers to interview questions, which indicated to him that appellant was not high or sleep deprived at the time.

            The district court denied appellant’s motions to suppress evidence found at the home and obtained during the interview, finding that the search of the house was legal and that appellant had not invoked his right to counsel during the interview.  Appellant was found guilty of second-degree murder based on stipulated facts.  This appeal follows.


            1.         Search


When this court reviews the legality of a search, it will not reverse the district court’s findings unless they are clearly erroneous or contrary to the law.


State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003) (quotation and citation omitted).  The United States and Minnesota Constitutions both protect against unreasonable searches and seizures by state authorities.  U.S. Const. Amend. IV; Minn. Const. art I, § 10.  “Warrantless searches are presumptively unreasonable unless one of a few specifically established and well-delineated exceptions applies.”  Licari, 659 N.W.2d at 250 (citation and quotation omitted).  “The state bears the burden of establishing the applicability of an exception.”  Id. 

            Appellant argues that the state did not carry its burden of establishing the applicability of an exception to allow a warrantless search because a valid consent exception does not apply when Wilson knew that neither he nor Brandt had appellant’s permission to enter the laundry room.  Appellant also argues that the exigent circumstances exception does not apply because the facts of this case are insufficient to establish exigent circumstances.

            A third party who has common authority over the premises may give valid consent for police to enter a building.  State v. Hummel, 483 N.W.2d 68, 73 (Minn. 1992).  Common authority rests “on mutual use of the property by a person generally having joint access or control for most purposes * * * .”  State v. Thomas, 598 N.W.2d 389, 392 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).  A “finding of mutual use is the essential ingredient of effective consent.”  Licari, 659 N.W.2d at 251 (citation and quotation omitted). 

            Here, Brandt had common authority over the premises to give valid consent because she was told by Richard Carlson, “mi casa es su casa”; Carlson gave Brandt a key; Brandt regularly visited the house even when Carlson was gone; Brandt regularly used the laundry room herself; Brandt cleaned the house and did Carlson’s laundry; and Brandt spent time inside the house to feed the dogs and wolves.  Brandt had been given rights to not only enter the house, but also to use it.  See Licari, 659 N.W.2d at 250-52 (identifying mutual use as critical factor in determining whether third party has authority to consent to search).  Richard Carlson clearly gave Brandt common authority not only over the house, but also over the laundry room, as evidenced by the fact that she laundered both his clothes and hers regularly.  Thus, Brandt had authority to consent to access and entry of the laundry room. 

            Because the record supports the district court’s conclusions that Brandt had common authority, that Brandt consented to the search, and thus that the search was lawful, we conclude that the district court did not err by allowing into evidence the fruits from that search.  Because Brandt lawfully consented to Wilson entering the laundry room, it is not necessary to reach whether the exigent circumstances exception applies. 

            2.         Right to Counsel


            This court defers “to a district court’s factual determination of whether a defendant invokes the right to counsel during an interrogation unless that determination is clearly erroneous.”  State v. Bradford, 618 N.W.2d 782, 796 (Minn. 2000) (citation omitted). 

            A defendant has a right to have counsel present during a custodial interrogation.  State v. Ray, 659 N.W.2d 736, 741 (Minn. 2003).  Custodial interrogation initiated by police after an accused has invoked his right to counsel violates an accused’s fifth amendment right, and any statement or confession ensuing as the result of that interrogation may not be introduced in evidence at the trial of the accused.  State v. Robinson, 427 N.W.2d 217, 222 (Minn. 1988). 

When a suspect indicates by an equivocal or ambiguous statement, which is subject to a construction that the accused is requesting counsel, all further questioning must stop except that narrow questions designed to “clarify” the accused’s true desires respecting counsel may continue.


  Id. at 223.

            Appellant argues that the district court erred in concluding he had never invoked his right to an attorney.  The interrogation was conducted as follows:

Ludwig:          You have the right to talk to a lawyer and have a lawyer present now or at anytime during questioning.  Do you understand that?


Appellant:       Yes


Ludwig:          If you cannot afford a lawyer, one will be appointed for you without cost.  Do you understand that?


Appellant:       Yea, but ah, where would the lawyer come from?  Would it be Burnett or Pine?


Ludwig:          I don’t know, that’s up to you.


Appellant:       Well, doesn’t the court appoint me one?


Ludwig:          Oh, that’ll come..yeah that’ll happen later.  Or you know, I don’t know…


Appellant:       I don’t have a lawyer.


Ludwig:          Well, do you want…I mean you have the right to a lawyer here with you right now is what I’m saying.


Appellant:       Alright.


Ludwig:          Okay, you understand that?  Okay, I don’t wanna…I want to make sure we’re clear on that.  You’re nodding your head yes.


Appellant:       Yeah.


Ludwig:          Okay.  Umm, having these rights in mind, will you just answer my questions now?  I’ve been visiting with [Brandt], your neighbor.  I’ll tell ya.  Okay and I have a pretty long history of what’s been going on since around [January 28, 2001].  And I just kind of would like to hear your side of it so you know, do you want to tell me your side of the story now?  We’ve been in the house.


Appellant:       I suppose.


            Whether appellant’s response is ambiguous or not is a question of fact.  “On review, we will uphold a district court’s factual determination of whether a defendant invoked the right to counsel unless it was clearly erroneous.”  State v. Risk, 598 N.W.2d 642, 647 (Minn. 1999).  Here, the district court, as fact finder, had the benefit of the audio recording, which may clarify, based on inflection or tone of voice, appellant’s meaning when he stated “alright.”

            The district court found that during the first interview appellant “never even ambiguously invoked his right to counsel.”  Appellant was told that he had a right to an attorney and indicated he understood that right.  Appellant’s inquiry regarding where the lawyer would come from is not a clear and unequivocal request for counsel, but “simply a question about where an attorney might come from.”  The question was “a logical [one,] given that the interview was conducted in Burnett County and the crime occurred in Pine County.”  When Ludwig attempted to clarify appellant’s question, he repeated that appellant had a right to an attorney and again asked if appellant understood that right.  Appellant responded by saying “yeah.”  When Ludwig asked appellant, “having these rights in mind * * * just answer [his] questions,” appellant proceeded to do so.

            The court went on to find that even though Ludwig’s comment, “Oh, that’ll come…yeah that’ll happen later,” in response to appellant’s question as to whether the court appoints him an attorney was in error, Ludwig also “rightfully clarified to [appellant] ‘you have a right to a lawyer here with you right now.’”

            Because this court defers to a district court’s factual determination of whether a defendant invoked his right to counsel during an interrogation, and the district court’s determination that appellant did not invoke his right to counsel is not clearly erroneous, we affirm on this issue. 

            3.         Knowing, Voluntary, Intelligent Waiver of Miranda

            In proving that a valid Miranda waiver took place, a “heavy burden” rests on the state to demonstrate that the accused knowingly, intelligently, and voluntarily waived his right to counsel.  State v. Linder, 268 N.W.2d 734, 735 (Minn. 1978)  “On appeal, this court will accept the [district] court’s findings of fact surrounding the giving of the statement unless those findings are clearly erroneous.”  State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995).  But this court will

make an independent determination, on the basis of the facts as found, of whether the state has shown by a fair preponderance of the evidence that the suspect’s waiver was knowing, intelligent, and voluntary.


State v. Hannon, 636 N.W.2d 796, 806 (Minn. 2001).  If a suspect is fully advised

of his Miranda rights, and [he] indicates that he understands his rights and nevertheless gives an incriminating statement, the state is deemed to have met its burden of proving that the accused knowingly and intelligently waived his rights.


Williams, 535 N.W.2d at 286. 

            Appellant argues that the waiver of his Miranda rights was not knowing, intelligent, and voluntary because the Miranda warnings were inadequate.  Appellant argues that Ludwig failed to inform him that he had a right to a court-appointed attorney present during the interrogation and only made reference to the availability of an attorney in the future.  Appellant also argues that the district court erred when it failed to evaluate his low intelligence, education, and ability to comprehend, and found the influence of chemicals was not significant enough to render his waiver valid.

[A] criminal defendant is not adequately informed of the right to the presence of appointed counsel prior to and during interrogation if the reference to the right to appointed counsel [is] linked with some future point in time after the police interrogation.


State v. McBroom, 394 N.W.2d 806, 812 (Minn. App. 1986).    Here, however, Ludwig’s statement that a lawyer would be available later was clarified when Ludwig also informed appellant he was entitled to an attorney “right now.”

An intoxicated suspect can knowingly and intelligently waive his Miranda rights.  State v. Smith, 374 N.W.2d 520, 524 (Minn. App. 1985), review denied (Minn. Nov. 26, 1985).  Where there is evidence indicating that a waiver is not knowing, voluntary, or intelligent, a court must consider the totality of the circumstances looking to factors such as age, maturity, intelligence, education, experience, ability to comprehend, lack of or adequacy of warnings, length and legality of detention, nature of interrogation, physical deprivations, and limits on access to counsel and friends.  State v. Camacho, 561 N.W.2d 160, 168 (Minn. 1997).

The district court found that appellant’s waiver was knowing and intelligent because Ludwig testified that appellant did not appear to be under the influence of drugs nor deprived of sleep, that he comprehended the questions, answered and asked questions appropriately, and that appellant “did not exhibit the behavior of someone who could not understand the Miranda rights.”  The district court also found that no evidence was presented indicating that appellant suffered from any mental disability that would impair his capacity to validly waive his rights.

            The record shows that appellant was 23 years old at the time of his statement.  Evidence was introduced of appellant’s learning disabilities as a young child, but those disabilities had dissipated and he did not require special assistance after school-age years.  In addition, Ludwig and another officer testified that neither had seen signs that appellant suffered from a mental disability that impaired his ability to understand his rights.  On three different occasions, appellant was read his rights and each time he indicated that he understood those rights.  Finally, appellant had previous experience with the law as a juvenile and, at that time, Ludwig was the officer who interviewed him.

            Appellant also argues that his waiver was not voluntary because Ludwig did not simply ask him if he wanted to waive his rights, but also stated that police had “been in the house.”  Appellant relies on Hannon to support his argument that he was induced to tell his story because of Ludwig’s statements and thus his waiver was not voluntary. 

            But Hannon is distinguishable from this case.  In Hannon, the supreme court held that the defendant was improperly induced to waive his right to counsel, and thus his waiver was not valid, because the officers told the defendant that (1) they knew he had committed the murder so the defendant may as well tell his side of the story, (2) he needed to talk to the police to make sure that his side of the story would be known, and (3) if he talked with an attorney, his side of the story would never be known.  Hannon, 636 N.W.2d at 805-07.  

            Here, unlike in Hannon, police did not suggest invoking his right to an attorney would disadvantage appellant.  Ludwig merely told appellant that he would like to hear his side of the story, and asked if he wanted to tell it at that time, knowing that Ludwig had been in the house.  This is not the kind of statement made in the Hannon interrogation to induce a waiver.  Appellant was advised of his Mirandarights, indicated he understood those rights, and proceeded to make an incriminating statement without being subjected to improper inducement.  Because the district court’s findings are not clearly erroneous, we hold that appellant knowingly, voluntarily, and intelligently waived his Miranda rights.



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