This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed June 22, 2004
Hennepin County District Court
File No. IC 482157
Anthony J. Kane, Terhaar, Archiblad, Pfefferle & Ghriebel, L.L.P., Butler Square Buildine, Suite 600A, 100 North Sixth Street, Minneapolis, MN 55403 (for appellant)
Mike Hatch, Attorney General, Sheila M. Fitzgerald Steichen, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Schumacher, Judge; and Huspeni, Judge.
Appellant challenges the district court’s decision sustaining the revocation of his driver’s license. He argues that officers illegally entered the curtilage of his home and then did not obtain proper consent before entering his home. Because the sole issue preserved for appeal is consent, and because the district court did not err in determining that consent was given, we affirm.
On February 8, 2003, shortly before 1:30 a.m., a dispatcher for the Minnetonka Police Department received a tip about a drunk driver heading toward Minnetonka. The tip described the vehicle, a gold Buick, and gave the vehicle’s license plate number. The dispatcher relayed this information to Officer Michael Nelson of the Minnetonka Police Department. Upon checking the license plate number, Officer Nelson learned that the vehicle was registered to appellant Kevin Thomas Singpiel and obtained appellant’s address.
Nelson went to appellant’s residence. When he walked up to the garage and looked through a service door window, he saw a gold Buick. Nelson radioed Sergeant Steven Kniss, also of the Minnetonka Police Department, who joined him shortly afterward.
The officers went to the front door of the house. Its windows were lit and loud music was playing inside. Nelson knocked loudly for one or two minutes without a response. Kniss went around the house to its back door, and through a window in that door, observed bottles of vodka and tonic. Kniss contacted Nelson and the two returned to the back door.
When they knocked, appellant opened the door. What followed is disputed. Nelson testified:
Kniss asked if we could talk to [appellant] . . . I don’t know exactly what words were used, but basically it was come on in, I remember him stepping to the side. . . .
. . . .
I don’t recall what words [appellant] said. I could not begin to tell you exactly what words he said . . . but it was very obvious that he was inviting us into the house.
I recall asking [if we could come in], and I don’t know if he said come in or he stood to the side, but I just know that it was . . . a non-issue and it was . . . clear that we were invited inside.
Appellant and his friend, also present at the time of the entry, offer a contrary version of events. According to appellant, Kniss asked if he could see appellant’s vehicle, but appellant replied, “[N]o . . . unless you have a search warrant.” Nelson then said he was going to turn off appellant’s stereo; he entered appellant’s residence and did so. Appellant did not resist Nelson’s entry but denied any invitation, spoken or unspoken. Appellant’s friend testified to the same events, and he also denied any invitation by appellant. Both appellant and his friend admit to drinking that evening, but both claim that their recollection of events was not impaired.
After entering appellant’s residence, the officers established probable cause and arrested appellant for driving while impaired. Appellant refused to comply with implied consent testing, and as a result, his driving privileges were revoked. See Minn. Stat. § 169A.52, subds. 1, 3 (2002).
Appellant subsequently petitioned for judicial review of the revocation of his driving privileges; at the hearing he raised the issues of consent to entry and vindication of the right to counsel, adding that “[e]verything else is waived.” Appellant’s trial memorandum did not challenge either (1) the officers’ basis for initiating the encounter or (2) the legitimacy of the officers’ presence or observations outside his residence. The commissioner’s responsive memorandum and the district court’s order addressed only consent to entry and vindication of the right to counsel.
In its order, the district court recounted the witnesses’ testimony and concluded:
Based upon the totality of the circumstances, including the credibility and capacity to recall exhibited by the witnesses, the permissive nature of [appellant’s] opening the door to allow officers to enter his home, the admitted consumption of alcohol by [appellant] and his guest, the Court concludes the officers lawfully entered [appellant’s] home.
Contending that his arrest and the ensuing revocation resulted from the officers’ illegal entry into his residence, appellant brings this appeal.
If an issue is not litigated before the district court, we ordinarily do not consider it on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The proponent of the issue has an obligation to elicit evidence and brief the issue. Otherwise, the paucity of the record raises a serious bar to appellate review. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).
Here, appellant raises several issues regarding the propriety of the officers’ entry into, and observations made from, the curtilage of his home. None of these issues were briefed or presented before the district court. Therefore, these issues are waived and we decline to consider them.
The only argument appellant properly preserved for appeal is whether he consented to the officers’ entry into his residence; he makes no claim on appeal regarding his right to consult with counsel. The constitutionality of a seizure is reviewed de novo. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). On the district court’s underlying findings of fact, we review for clear error. State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983).
The state and federal constitutions provide “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and they require that “no Warrants shall issue, but upon probable cause.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. To preserve these rights, a warrantless entry into constitutionally protected premises is presumed to be unreasonable and illegal. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001).
Unless the state establishes proof for a valid exception to the warrant requirement, the fruits of a warrantless entry are suppressed. Id. Consent is one such exception. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). Proper consent must be valid and voluntary. Id. The state must show not only that a person with control of the premises gave consent, but also that the consent was obtained freely and was not a product of coercion. Id. The only substantive issue is whether appellant actually consented. Consent is determined by examining the totality of the circumstances. Harris, 490 N.W.2d at 102 (citing State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994)). In the instant case, there is no indication in the record that consent was a product of coercion or duress. See Dezso, 512 N.W.2d at 880 (holding that involuntariness cannot be based solely upon ordinary discomfort in the course of a police encounter).
Consent need not be verbal but may be implied from a person’s actions. Othoudt, 482 N.W.2d at 222. Ordinarily, the issue is whether a person engaged in a welcoming action: gestures or movements that make it clear state actors are free to enter. See, e.g., State v. Ulm, 326 N.W.2d 159, 162 (Minn. 1982) (motion to officer from across porch indicated invitation to enter); Carlin v. Comm’r of Pub. Safety, 413 N.W.2d 249, 250-51 (Minn. App. 1987) (driver’s mother opened door for officer and turned around without interacting with officers). Under some circumstances, a related factor may be whether officers asked permission to enter. See Othoudt, 482 N.W.2d at 223 (no request to enter); State v. Buschkopf, 373 N.W.2d 756, 768 (Minn. 1985) (officers did not expressly request consent and defendant did not affirmatively give it). Consent cannot be inferred solely from a person’s acquiescence to police authority. State v. George, 557 N.W.2d 575, 580 (Minn. 1997).
In reviewing the record before us here, we are aware that the constitutional sanctity of appellant’s residence is implicated. We are also aware of the caution of the Minnesota Supreme Court that it “will not look kindly upon warrantless entries of family residences, justified on the flimsiest and most pretextual of excuses.” Othoudt, 482 N.W.2d at 224. Nonetheless, we owe deference to the district court’s assessment of the credibility of witness testimony. State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).
Here, the district court heard and weighed the credibility of testimony by appellant’s witnesses and by those of the commissioner. The sole inference to be made from the language of the court’s order is that the commissioner’s witnesses were found to be more credible than appellant’s on the question of whether consent was given. We will not reverse a district court’s findings for clear error absent a “firm conviction that a mistake was made.” Kvam, 336 N.W.2d at 529. We see no clear error in the determination of the district court.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI § 10.