This opinion will be unpublished and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
Michael Dean Cramer, petitioner,
Commissioner of Public Safety,
Filed January 18, 2005
Stearns County District Court
File No. C2-03-1125
Michael Dean Cramer, 20123 Beaver Lake Road, Kimball, MN 55353 (pro se appellant)
Mike Hatch, Attorney General, Allen Louie, Sheila M. Fitzgerald Steichen, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Halbrooks, Judge.
Pro se appellant Michael Dean Cramer challenges a district court order sustaining the revocation of his driving privileges under the implied-consent law, Minn. Stat. § 169A.50-.53 (2002). Appellant argues that (1) the district court erred in finding that his wife voluntarily consented to the entry of two law-enforcement deputies into his home; (2) the deputies did not have probable cause to arrest him; and (3) his right to consult with an attorney was not vindicated. We affirm.
In the early morning hours of February 14, 2003, an identified caller telephoned 911 to report that a white Jeep Cherokee was driving erratically on Highway 15. The caller was unable to read the vehicle’s license-plate number but informed the dispatcher that the Jeep had turned off the highway onto Beaver Lake Road in Stearns County.
Sheriff Deputy Orvis responded immediately and proceeded down Beaver Lake Road, where he observed that a mailbox and paper-delivery box had been knocked over and were lying on the road. Tire tracks led from the damaged mailbox to a nearby driveway. Another officer, Deputy Rose, also arrived at the scene, and the two officers followed the tracks down the driveway, where they saw a white Jeep Cherokee that matched the caller’s somewhat vague description parked in front of the residence. The vehicle’s engine was still warm, indicating that it had recently been driven. While there was no substantial damage to the Jeep, Rose observed a few small scratches and colored paint marks on it. Rose suspected that this minor damage was caused when the vehicle struck the mailbox.
The deputies proceeded to the home’s front door and knocked loudly. Appellant’s wife answered, and the deputies entered the home while appellant’s wife went upstairs to wake the appellant. The parties dispute whether or not appellant’s wife consented to the deputies’ entry into the residence. Appellant’s wife testified that the officers entered without requesting or receiving verbal permission. But she also admitted that she did not ask the deputies to leave but, instead, went upstairs to wake up her husband. Deputy Orvis testified that he asked for permission to enter the home and that appellant’s wife said, “Yes.” Deputy Rose testified that Orvis asked her, “May we come in?” and that appellant’s wife responded affirmatively, saying, “Sure.”
When appellant voluntarily came downstairs, he showed signs of intoxication. As Deputy Orvis explained in his narrative report, “I could smell a strong odor of alcoholic beverage coming from him. I also observed watery and red eyes.” Appellant denied drinking alcohol that evening and blamed his appearance on the medicine that he takes nightly for pain relief. He was then questioned by the deputies and asked to perform field sobriety tests. In his report, Orvis stated that appellant “had a difficult time following directions during the field test. He was unable to complete the tests properly and failed to follow my directions.” Later, when asked to provide a preliminary breath test, appellant refused and was eventually arrested for driving while impaired in the first degree under Minn. Stat. § 169A.20, subd. 1(1), .24, subd. 2 (2002).
Appellant was transported to the local jail, where Deputy Orvis read him the implied-consent advisory. The events that transpired at the jail are also disputed. Deputy Orvis testified that he explained the implied-consent process to appellant and asked appellant if he wished to speak with an attorney. Appellant responded affirmatively, and Orvis provided him with phone books so that appellant could seek legal advice before submitting to a breath test. Although it was nearly 2:00 in the morning, appellant was able to contact an attorney, who was supposed to call appellant back. In the meantime, appellant “just sat there” for approximately 12 minutes, waiting for a call that never arrived. Orvis asked appellant if he would like to try to reach other attorneys, but appellant declined. Finally, after 12 minutes, appellant made a call to another attorney, and Orvis waited another 5 minutes. At that time, Orvis informed appellant that he would “have to make a decision as to whether he was going to submit to a breath test.” Appellant refused the test, even after being informed that it was a crime to do so. In total, Orvis testified that appellant had approximately 24 minutes to talk with an attorney and was unable to do so.
Appellant testified that Orvis gave him the opportunity to contact an attorney, but that Orvis interrupted him by asking appellant questions about the whereabouts of the citation that Orvis had previously issued him. Appellant continued to try to contact other attorneys and finally reached one who promised to call back, but never did. When forced to make a decision about submitting to the test, appellant refused. Appellant stated that he refused the test because, according to the form and in his own words, “[I] was home for over an hour and [the deputy did not] observe me driving.”
After considering testimony from both deputies, appellant, appellant’s wife, and appellant’s son, the district court sustained the revocation of appellant’s driving privileges. The district court concluded that (1) the warrantless entry into appellant’s home was consensual and voluntary; (2) the deputies had probable cause to arrest appellant; and (3) appellant’s right to consult with an attorney was vindicated. This appeal follows.
The district court’s findings of fact are entitled to the same deference as a jury verdict and will be upheld if the court’s findings are reasonably based on evidence adduced. State v. Thurmer, 348 N.W.2d 776, 778 (Minn. App. 1984). Because the district court has the opportunity to judge the credibility of witnesses, we will not set aside findings of fact unless they are clearly erroneous. Thorud v. Comm’r of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984); see also Minn. R. Civ. P. 52.01. As the supreme court has explained, great deference is accorded “a [district] court’s findings of fact because it has the advantage of hearing the testimony, assessing relative credibility of witnesses, and acquiring a thorough understanding of the circumstances unique to the matter before it.” Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996). “Conclusions of law will be overturned only upon a determination that the [district] court has erroneously construed and applied the law to the facts of the case.” Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).
Appellant first argues that his wife did not consent to the deputies’ warrantless entry into their home. A warrantless entry is constitutional if it is made with the voluntary consent of a person in control of the premises. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973); State v. Lotton, 527 N.W.2d 840, 843 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). This court subjects voluntary-consent claims to “careful appellate review.” State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (quoting State v. George, 557 N.W.2d 575, 580 (Minn. 1997)). The question of whether consent is voluntary is a question of fact based on all relevant circumstances and the district court’s determination will only be reversed if it is clearly erroneous. Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2047-48; State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985). The state has the burden of proving, by a preponderance of the evidence, that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1792 (1968); State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999).
Appellant contends that his wife acquiesced to the situation in light of the overwhelming presence of the deputies at their front door. He argues that the deputies’ loud knock and physical presence, coupled with his wife’s timid demeanor, mitigate against a finding that lawful consent to enter the premises was given.
Whether consent is voluntary is a factual question and is based on the totality of the circumstances. George, 557 N.W.2d at 579. Consent is voluntary if it is “the product of an essentially free and unconstrained choice by its maker,” rather than the product of duress or coercion, express or implied. Schneckloth, 412 U.S. at 225, 93 S. Ct. at 2047. Consent is involuntary, on the other hand, if it results from circumstances that overbear the consenting party’s will and impair his or her capacity for self-determination. Id. at 225-26, 93 S. Ct. at 2047.
Consent need not be oral but may be implied from a person’s actions. State v. Othoudt,482 N.W.2d 218, 222 (Minn. 1992). Ordinarily, the issue is whether a person engaged in a welcoming action—gestures or movements making it clear that state actors are free to enter. See, e.g., Carlin v. Comm’r of Pub. Safety, 413 N.W.2d 249, 250-51 (Minn. App. 1987) (finding consent where driver’s mother opened door for officer and turned around without interacting with officer). Under some circumstances, a related factor may be whether the deputies 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. George, 557 N.W.2d at 580.
The district court concluded that, based on the totality of the circumstances, appellant’s wife freely and voluntarily consented to the deputies’ entry into the home. The court noted that the deputies had explained their presence and that appellant’s wife
was very cooperative and stood with the door wide open. It was a cold February night and Deputy Orvis asked to step inside the residence. [Appellant’s wife] consented. She reinforced this verbal consent with her nonverbal actions. She left the door ajar and proceeded to climb the stairs while Deputy Orvis waited in the foyer and Deputy Rose returned outside to examine the vehicle. [Appellant’s wife] testified that she knew the officers stepped into the residence but did not ask or tell them to leave.
Applying United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990), the district court examined factors such as age, education, and intelligence; prior contact with the criminal-justice system; and possible impairment by alcohol or drugs and concluded that appellant’s wife was not coerced or unduly pressured and that she had voluntarily consented. While the testimony from the deputies and appellant’s wife conflicts, the district court resolved the inconsistencies in favor of the deputies. On this record, we conclude that the district court’s determination that the deputies had consent to enter appellant’s home was not clearly erroneous.
Appellant next argues that the deputies did not have probable cause to arrest him for driving while under the influence of alcohol. To arrest an individual for driving under the influence of alcohol, a deputy must have probable cause to believe that the person was driving, operating, or in physical control of a motor vehicle, and that the person was impaired by alcohol. Minn. Stat. § 169A.20, subd. 1 (2002). “Probable cause exists where all the facts and circumstances would warrant a cautious person to believe that the suspect was driving or operating a vehicle while under the influence.” Johnson v. Comm’r of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985). A reviewing court must examine the totality of the circumstances when determining whether probable cause existed. Eggersgluss v. Comm’r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986). Probable cause is assessed from “the point of view of the officer, giving deference to the officer’s experience and judgment.” Delong v. Comm’r of Pub. Safety, 386 N.W.2d 296, 298 (Minn. App. 1986), review denied (Minn. June 13, 1986).
Appellant argues that the deputies did not have probable cause to arrest him, based on a number of reasons. He claims that there was not a sufficient temporal connection between his alleged state of intoxication and operation of a motor vehicle. To support this argument, appellant points to the testimony of his family members, who stated that he was already at home when the 911 call was received. Appellant also highlights the vague description of the “white Jeep Cherokee” from the 911 tape and maintains that the dispatcher could have elicited more identifying information from the caller who reported the erratic driving. Appellant claims that the deputies “embellished” their testimony by adding details about the vehicle itself that were not disclosed by the 911 caller. Finally, appellant attempts to explain that his groggy appearance that night had more to do with the effects of his pain medication than the alleged alcohol consumption.
A. Signs of Intoxication
There is no bright-line test for determining whether a person is intoxicated. The usual symptoms of intoxication can support a finding of probable cause to arrest. See, e.g., Costillo v. Comm’r of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987) (bloodshot eyes, strong odor of alcohol, and slurred speech contributed to a determination of probable cause that driver was under the influence of alcohol). Although many symptoms may indicate intoxication either independently or in combination with others, each case need not involve every possible symptom. Martin v. Comm’r of Pub. Safety, 353 N.W.2d 202, 204 (Minn. App. 1984). “In fact, an officer need only have one objective indication of intoxication to constitute reasonable and probable grounds to believe a person is under the influence.” Id.
Here, the district court found that appellant exhibited enough indicia of intoxication to establish probable cause that he was in fact intoxicated. The court explained:
Deputy Orvis noted that [appellant] smelled of alcohol; had bloodshot, watery eyes; slurred speech and was unsteady. When asked whether he had anything to drink, [appellant] told Deputy Orvis that he had a couple of beers after arriving home. [Appellant’s] physical condition indicated that he had consumed more than a couple of beers at home . . . . [Appellant] failed both [field sobriety] tests.
The court also noted that, even if appellant’s medication so seriously affected his appearance, no evidence was presented that appellant or his family informed the deputies of this possibility. Based on the testimony presented, and giving due deference to the district court, we determine that it did not err in finding that appellant was intoxicated on the evening in question.
B. Temporal Connection
In order to establish probable cause, there must also be a sufficient temporal connection between the driver’s intoxication and his operation of the motor vehicle. Dietrich v. Comm’r of Pub. Safety, 363 N.W.2d 801, 803 (Minn. App. 1985). A deputy need not personally “observe the defendant in the act of driving or operating the vehicle to request a test to determine the alcoholic content of his blood.” State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 880-81 (1972). But a time frame must be established between the drinking and driving either by direct or circumstantial evidence. Eggersgluss, 393 N.W.2d at 185.
Here, the district found that Deputy Orvis had “enough circumstantial evidence to make the necessary temporal connection between [appellant’s] intoxication and his driving or operating [of] the motor vehicle.” Orvis observed a mailbox lying in the middle of Beaver Lake Road. From there, tire tracks led down a nearby driveway where a white Jeep Cherokee, matching the 911 caller’s description, was parked. The hood was still warm, and the vehicle had a few scratches and smudges of green paint, potentially coming from the green mailbox. Appellant’s wife told the deputies that her husband had recently driven the Jeep. Finally, after coming downstairs, appellant showed clear signs of intoxication. Based on all these findings, the district court concluded that, “[t]he circumstantial evidence creates the necessary timeline and temporal connection between [appellant’s] intoxication and his driving the motor vehicle.” While acknowledging that appellant’s wife and son each testified that appellant had arrived home an hour before the time of the 911 call, the court found the circumstantial evidence in this case to be “more than compelling.”
From our close examination of the record and being cognizant of the conflicting testimony presented by the deputies and appellant and his family, the district court did not err in concluding (1) that appellant was intoxicated and (2) that the overwhelming circumstantial evidence in this case established the necessary temporal connection between appellant’s intoxication and his operation of the motor vehicle. In examining the totality of the circumstances, a contrary conclusion would ignore extremely strong evidence. We therefore conclude that the district court did not err in finding that the deputies had probable cause to arrest appellant for driving while under the influence of alcohol.
Finally, appellant argues that his right to counsel was not vindicated. An individual has a limited right, upon request, to obtain legal advice before deciding whether to submit to a chemical test, provided that the consultation does not unreasonably delay administration of the test. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). The determination of whether a deputy vindicated a driver’s right to counsel is a mixed question of law and fact. Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Once the facts are established, we make a legal determination as to whether the defendant “was accorded a reasonable opportunity to consult with counsel based on the given facts.” Id.
Appellant contends that the district court erred in determining that his right to legal counsel was vindicated. Appellant claims that he was not given a reasonable amount of time to contact an attorney when asked to take an Intoxilyzer test. Appellant maintains that Deputy Orvis interrupted him while he was attempting to contact an attorney and that the implied-consent advisory form that the deputy filled out reflects that appellant was not given 24 minutes to contact an attorney, in direct conflict with Orvis’s testimony. Because of this conflict, appellant argues that the district court’s finding that the deputy was credible is clearly erroneous.
A. Credibility Determination
The district court highlighted the timing inconsistency between the implied-consent advisory form (listing two separate time periods from 1:42 until 1:46 a.m. and 1:58 until 2:06 a.m.) and Orvis’s testimony (explaining that appellant had the entire 24 minutes, from 1:42 until 2:06 a.m., to contact an attorney), but ultimately found Orvis’s explanation of the discrepancy to be credible. Because the district court had the opportunity to judge Deputy Orvis’s credibility, its findings of fact will not be set aside unless clearly erroneous. See Thorud, 349 N.W.2d at 344. Great deference is accorded to “a [district] court’s findings of fact because it has the advantage of hearing the testimony, assessing relative credibility of witnesses and acquiring a thorough understanding of the circumstances unique to the matter before it.” Hasnudeen, 552 N.W.2d at 557. Because the district court’s credibility determination was not clearly erroneous, we decline to set it aside.
B. Vindication of the Right to Counsel
With the facts resolved in favor of Deputy Orvis’s testimony, we next determine whether the defendant “was accorded a reasonable opportunity to consult with counsel based on the given facts.” Kuhn, 488 N.W.2d at 840. As a general rule, the right to counsel “is vindicated if the driver is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 809 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999). But “[i]f counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.” Friedman, 473 N.W.2d at 835.
Drivers are required to make a good-faith and sincere effort to contact an attorney. Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). If it is established that a sincere, good-faith effort to contact counsel was made, then the court determines whether the driver was given a reasonable amount of time to consult with an attorney. See Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992); see also Kuhn, 488 N.W.2d at 842 (explaining that no single factor governs in determining reasonability). “In the final analysis, it is from the totality of the facts that one judges whether a driver had the opportunity to exercise the constitutional right to consult with an attorney.” Parsons, 488 N.W.2d at 502.
Examining the circumstances at the jail, the district court concluded that appellant’s limited right to counsel was vindicated, explaining:
The totality of the circumstances indicates that [appellant] had a reasonable amount of time to contact an attorney. Although it was late, [appellant] did speak with an attorney who never called him back. [Appellant] was waiting for the return call and chose to stop attempting to contact other attorneys. Deputy Orvis gave the attorney approximately 15 minutes in which to call [appellant] back and then required [appellant] to make a decision regarding testing.
The court also found that appellant made a reasonable and good-faith effort to contact an attorney, “[c]onsidering the late hour and the obvious difficulty in reaching an attorney at 1:40 a.m.”
As we have previously noted, “[a] driver cannot be permitted to wait indefinitely for a call that may never come, and an officer must be allowed to reasonably determine that the driver has had enough time.” Palme v. Comm’r of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). Here, the deputy waited 15 minutes for the attorney to recontact appellant; it was reasonable to determine that appellant’s right to counsel had been vindicated after 24 minutes, particularly when appellant himself chose to stop calling. See Kuhn, 488 N.W.2d at 841-42 (surveying cases and concluding that right to counsel was vindicated in those cases where driver “either chose to stop calling or did in fact consult with an attorney”). We conclude that appellant was given a reasonable amount of time to consult with an attorney and that his right to counsel was vindicated.
 Appellant also argues for the first time on appeal that the deputies did not have reasonable, articulable suspicion to approach and enter his home. But this court will generally not consider matters not argued and considered by the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Moreover, reasonable, articulable suspicion is not required for deputies to approach a residence. See State v. Alayon, 459 N.W.2d 325, 328 (Minn. 1990) (noting that an officer need not have a warrant or probable cause to walk up to a suspect’s house and knock on the door).
 On cross-examination, Deputy Orvis testified, “Due to my inexperience, I put [1:46 a.m.] as the stop time as his first phone call. The phone at no time after that was taken away from him or the phone books. He could have made as many phone calls as—to an attorney as he wanted to.”