This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,


Lorayn Ann Underwood, a/k/a Lori Ann Underwood,


Filed March 15, 2005


Wright, Judge


Nobles County District Court

File No. K4-03-493



John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Gordon L. Moore, III, Nobles County Attorney, Prairie Justice Center, 1530 Airport Road, Suite 400, P.O. Box 337, Worthington MN  56187-0337 (for respondent)



            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




            Appealing from her conviction of a fifth-degree controlled substance offense, appellant argues that (1) her consent to be searched was not voluntary because the police officer coerced her into signing the consent form; (2) the officer lacked reasonable articulable suspicion to seize appellant; and (3) the officer failed to cease the interrogation when appellant invoked her right to counsel.  We affirm. 



            On the evening of July 13, 2003, at approximately 11:00 p.m., Denise Snyder was cleaning the women’s restroom at the Hy-Vee store in Worthington.  After emptying the feminine hygiene disposal container, Snyder discovered a piece of slightly charred aluminum foil that had fallen beneath the container’s bag.  When Snyder brought the piece of charred aluminum foil to the attention of Cindy Teerink, one of the evening managers, the two compared the charred piece of aluminum foil to the foil used in the deli kitchen.  Because the foil appeared to match, Teerink showed the charred foil to Donald Baumgartner, the other evening manager.  Baumgartner examined the charred piece of aluminum foil and concluded that the residue on the foil was fresh methamphetamine.  Baumgartner and Teerink notified the police.  Shortly thereafter, Officer Mark Dungy arrived at the scene to investigate the suspected controlled substance. 

            Upon his arrival, Officer Dungy examined the piece of foil and noted that it appeared to be a device used for smoking methamphetamine.  Teerink then told Officer Dungy that the foil had tear marks matching the foil from the Hy-Vee kitchen.  Teerink also told Officer Dungy that she, Snyder, and appellant Lorayn Underwood, were the only female employees working that evening and that only the latter two had access to the kitchen area.  Teerink further advised that Underwood made frequent trips to the women’s restroom, always using the stall where the foil was recovered.  Because Snyder found the foil and alerted management, who in turn contacted the police, Officer Dungy decided to focus his investigation on Underwood.   

            Officer Dungy found Underwood cleaning the back steps to the manager’s office.  He asked Underwood if she had used the women’s restroom and if the piece of foil belonged to her.  Underwood admitted that she had been in the women’s restroom but denied that the foil was hers.  In response to Officer Dungy’s questioning, Underwood also denied using methamphetamine.  During the conversation, Officer Dungy observed that Underwood was rubbing her hands together, moving her fingers rapidly, and constantly moving.  Having recently completed specialized training to become a drug recognition expert, Officer Dungy suspected that Underwood’s inability to remain still was a sign of drug use.

            Officer Dungy wanted to record Underwood’s statements.  Because he did not have a working body microphone, Officer Dungy asked Underwood if she would speak to him in the squad car where their conversation could be recorded.  Officer Dungy told Underwood that she was not under arrest, and Underwood agreed to accompany him to the squad car.  Underwood continued to be very jittery.  As Underwood sat in the front seat of the squad car, Officer Dungy asked her if he could take her pulse.  Underwood consented, and Officer Dungy noted that her pulse rate was 128 beats per minute.  Officer Dungy also observed that Underwood had brown discoloration on her teeth and what appeared to be blisters on her tongue.  According to Officer Dungy, the jitteriness, elevated heart rate, discolored teeth, and tongue blisters are indicia of drug use.

            Officer Dungy told Underwood that, based on his experience and training, she was displaying multiple signs of being under the influence of a controlled substance.  In response, Underwood admitted that she had been arrested in Iowa for possession of methamphetamine paraphernalia, but she denied using methamphetamine since.  Officer Dungy then asked Underwood to tell him the location of the rest of the methamphetamine that she had been using in the bathroom.  When Underwood again denied possessing any methamphetamine, Officer Dungy asked Underwood about her source for methamphetamine.  Underwood replied that she was getting the methamphetamine from a man who lived in Terril, Iowa. 

            At this point, Officer Dungy requested assistance.  Officer Youngblom arrived at the scene shortly thereafter with a consent-to-search form.  Officer Dungy explained to Underwood that he would like to search her person, purse, and jacket.  He then asked Underwood to sign the form.  After Officer Dungy advised Underwood that she had a right to refuse the search, Underwood asked about the consequences of refusing to sign the form.  Officer Dungy replied that the next step would be determined if she decided to refuse the search.[1]  Underwood then stated, “I could use a lawyer,” to which Officer Dungy responded that he could not advise her decision.  Underwood subsequently signed the consent form.  A search of her person produced a substance that later tested positive for methamphetamine.              

            Underwood was charged with fifth-degree controlled substance crime, a violation of Minn. Stat. § 152.025, subd. 2(1) (2002).  Underwood moved to suppress the evidence obtained as a result of the search of her person on the basis that her consent to the search had been coerced.  The district court denied Underwood’s motion to suppress, and Underwood waived her right to a jury trial and agreed to submit the case for a bench trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found Underwood guilty of the charged offense.  This appeal followed.



            Consent to a search must be “voluntarily given, without coercion or submission to an assertion of authority.”  State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).  The voluntariness of consent is a question of fact, which is reviewed for clear error.  See State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990).

            When determining whether the consent was voluntary, we consider “‘whether a reasonable person would have felt free to decline the officer[’s] requests or otherwise terminate the encounter.’”  Dezso, 512 N.W.2d at 880 (quoting Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 2387 (1991)).  In doing so, we examine the totality of the circumstances, “including the nature of the encounter, the kind of person the defendant is, and what was said and how it was said.”  Id.  The state bears the burden of showing by a preponderance of the evidence that consent was voluntarily obtained.  See State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999).

            Underwood argues that her consent was the product of coercion by Officer Dungy.  In support of her argument, Underwood points to the “inherently” coercive nature of the situation.[2]  When she was asked to sign the consent form, she was sitting in a squad car with two uniformed officers at the scene.  According to Underwood, when she inquired about the consequences of declining to sign the form, the officer stated that if she refused to sign the form, “We will have to do it the hard way and we will have to take you in.”  Underwood further contends that her consent was coerced and therefore invalid because the officer ignored her request for counsel. [3] 

            Our review of the record establishes that the officer’s conduct was not coercive. When Officer Dungy asked Underwood to sign the consent form, he explained to her that she could refuse to consent.  In addition, the form itself advised Underwood in bold letters that she had the right to decline to sign the form, and that if consent were provided, it could be withdrawn at any time.  Underwood was 41 years old at the time, and there is no evidence that she had any problem reading or understanding the consent form.  She was seated in the front seat of the squad car, having been informed that she was not under arrest.  That Underwood did not sign the consent form immediately upon request and deliberated about whether to sign the consent form also demonstrate that she was not coerced by the officer.  Moreover, although Underwood’s testimony regarding what Officer Dungy told her about the consequences of her refusal differs from that of Officer Dungy, the district court specifically found Officer Dungy’s testimony to be credible.  See State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985) (stating that appellate courts defer to fact-finder’s determination of credibility and weight of testimony). 

            Based on the totality of the circumstances, we conclude that a reasonable person would have felt free to decline the officer’s request to sign the form.  Accordingly, Underwood’s consent was valid.

            Underwood also contends that (1) the district court erred by declining to suppress the methamphetamine on the basis that the officer did not have reasonable articulable suspicion to detain and question Underwood about the foil discovered in the women’s restroom; and (2) the officer should have ceased the interrogation because she invoked her right to counsel.  But these issues were not raised before the district court and would require further development of the record for appellate review.  Generally, an appellate court will not consider arguments that are made for the first time on appeal.  State v. Grunig, 660 N.W.2d 134, 136 (Minn. 2003).  Because these issues were not raised before or decided by the district court, we decline to address them.


[1] Underwood testified that Officer Dungy told her that if she refused to sign the form, “We will have to do it the hard way and we will have to take you in.”  But the district court did not find this aspect of Underwood’s testimony credible.

[2] Underwood also cites Dezso in support of her contention that she was coerced into signing the consent form.  But this case is readily distinguishable from Dezso because here, unlike the officer in Dezso, Officer Dungy advised Underwood that she had the right to refuse the search.  See Dezso, 512 N.W.2d at 881.

[3] We note that Underwood’s right to counsel was not violated.  The Sixth Amendment right to counsel attaches once the prosecution is formally commenced, usually by the filing of the complaint on the return of an indictment.  United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 2297 (1984).  When Officer Dungy requested Underwood’s consent to search, the complaint had not been filed.  Thus, Underwood’s Sixth Amendment right to counsel had not yet attached.  The Fifth Amendment right to counsel attaches only when a suspect invokes the right during a custodial interrogation.  State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990).  Because the officer’s questioning does not amount to a custodial interrogation, Underwood’s Fifth Amendment right to counsel also was not violated.  Furthermore, whether Underwood’s request for a lawyer was clear and unambiguous would be material only if Underwood’s Fifth and Sixth Amendment rights to counsel had attached.  But that issue was not addressed by the district court, and we need not reach it here.