This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


John Everett Halvorson,


Filed June 21, 2005


Stoneburner, Judge


Clay County District Court

File No. K3032101


Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Lisa N. Borgen, Clay County Attorney, Heidi M.F. Davies, Assistant County Attorney, 807 North Eleventh Street, Box 280, Moorhead, MN 56561-0280 (for respondent)


Christopher J. Lancaster, Suite 302, 403 Center Avenue, Moorhead, MN 56560 (for appellant)


            Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N



            On appeal from conviction of second-degree DWI, appellant John Everett Halvorson argues that the district court clearly erred by finding that consent was given to police for the entry and search of appellant’s residence that resulted in his arrest.  Because evidence in the record supports the district court’s finding, we affirm.



            The Clay County Sheriff’s Department received a call in the early morning hours reporting that an intoxicated male had driven his car into a ditch and hit a telephone pole.  The caller told dispatch that he had given the driver a ride to a nearby convenience store.  Deputy Ryan Carey went to the convenience store and spoke with the caller and a police officer.  The suspected intoxicated driver had left the store.  Dispatch then informed the deputy that someone had called to report that appellant was involved in the accident and was now at his residence.  The deputy proceeded to appellant’s residence and knocked on the door.  The door was opened by one of appellant’s roommates, Robert Klabunde.

            Deputy Carey and Klabunde have different versions of what occurred next.  According to the deputy, when he arrived at the home he saw someone “duck down” in the front window before Klabunde opened the door.  The deputy said he identified himself, asked if appellant was home, and asked if he could come inside.  Klabunde said, “Yeah, sure, come in.”  The deputy asked Klabunde where appellant was, and Klabunde said he was downstairs.  The deputy asked Klabunde if he would go downstairs and get appellant so the deputy could speak to him.  Klabunde went downstairs and came back upstairs without appellant but said again that appellant was downstairs.  The deputy then asked Klabunde if he could go down and speak with appellant and Klabunde said, “Go right ahead or sure, go ahead, or whatever.”

            Klabunde testified that when he opened the door and saw the deputy he asked the deputy if he could get his glasses and the deputy said, “Yes.”  Klabunde testified that when he came back upstairs with his glasses, the deputy was standing in the entryway, and Klabunde described himself as being “startled and frightened.”  Klabunde testified that he turned on the lights and walked into the kitchen which is next to the entryway.  The deputy followed Klabunde into the kitchen and asked him to identify himself.  Klabunde gave his name.  The deputy asked if he had identification, and Klabunde asked if he could go downstairs again to put on more clothes and to get his driver’s license.  The deputy agreed.  Klabunde went downstairs then returned to the kitchen and gave his driver’s license to the deputy.  The deputy called in Klabunde’s identification information on the radio.  Klabunde testified that at this time he “didn’t know what was going on.  I know I was tired.  It was early in the morning.  I didn’t know what was going on so I said, let’s go outside and talk.” They went outside and Klabunde testified that it was only at that point that the deputy said he was looking for appellant because he was in an accident.  Klabunde said he thought only he and another housemate, Greg Simon, were in the house.  The officer told Klabunde that he had seen two heads in the window of the basement.  Klabunde said he then went back into the house and the deputy followed him to the entryway.  Klabunde said he went into the kitchen and quickly looked into appellant’s room, which was close to the kitchen, and appellant was not there.  The deputy then asked if there were any guns in the house and when Klabunde said he did not think so, the deputy “just walked downstairs and that’s the last I saw of him ‘til [appellant] came up with the [deputy].”  Klabunde testified that the deputy walked “cautiously and shined his flashlight going down the stairwell.”  When asked if he granted the deputy permission at the time he went downstairs, Klabunde said, “No.”  On cross-examination, Klabunde testified that he did not recall the deputy asking permission to go downstairs, and when asked “Is it possible that he did and you don’t remember?” Klabunde responded, “I don’t believe so.”

            Appellant testified that the deputy woke him up by shining a light in his face and asked him if he was John Halvorson, if his car was in the ditch, and if he had been drinking.  Appellant answered “yes” to all three questions.  The deputy told him he had to go upstairs and take a breath test and led him upstairs.  Appellant felt he could not refuse. 

            The deputy testified that he found appellant in the basement in the dark and by flashlight, noticed that appellant’s eyes were watery and slightly bloodshot.  Appellant admitted being the driver of the car that went into the ditch and said that he had fallen asleep while driving and felt he had too much to drink to be driving but he had not had anything to drink since he got home.  The deputy had appellant get dressed, administered the PBT, which appellant failed, and the deputy arrested him.  In his report, the deputy noted that appellant was cooperative.

            Appellant was charged with two counts of second-degree driving while impaired.  The district court denied appellant’s motions to suppress evidence finding that the deputy had consent to enter the house and did not exceed the scope of the consent.  The case was then submitted for trial to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  Appellant was found guilty of both counts and sentenced.  This appeal followed.




            The court’s finding that the deputy had consent to enter the house to arrest appellant is a mixed question of law and fact, requiring an appellate court to apply the controlling legal standard to historical facts as determined by the district court.  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).  The factual findings are reviewed under the clearly erroneous standard, but the legal determination is reviewed de novo.  Id. at 3 n. 1.

            Under the Fourth Amendment to the U.S. Constitution and Article I of the Minnesota Constitution, citizens are protected from warrantless searches and seizures in their homes.  State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992).  “To justify a warrantless entry and search of a person’s home to a make a felony arrest the state must show either consent or probable cause and exigent circumstances.”  Id. at 222 (citing Payton v. New York, 445 U.S. 573, 576, 590, 100 S. Ct. 1371, 1374-75, 1382 (1980)).  

Appellant first argues that the standard for probable cause and exigent circumstances is more stringent when the arrest is for a misdemeanor-level offense, and because there was no hot pursuit of appellant in this case, there was no justification for a warrantless entry.  The district court found consent, but briefly addressed the state’s argument that exigent circumstances justified the entry.  The district court correctly distinguished this case from cases justifying a warrantless entry into a DWI suspect’s home and concluded that the facts of this case “[do] not unambiguously support a finding that obtaining a chemical sample from [appellant] constituted an exigent circumstance justifying the warrantless search and seizure.”  We agree that no exigent circumstances justified the deputy’s entry into appellant’s home, and we therefore decline to address appellant’s argument regarding the standard for finding exigent circumstances in misdemeanor cases.

The parties agree that Klabunde, as a resident with common authority over the house appellant lived in, had authority to consent to the deputy’s entry into the house.  See, e.g., Carlin v. Comm’r of Pub. Safety, 413 N.W.2d 249, 251 (Minn. App. 1987) (noting that there was no dispute between parties that person who lived in defendant’s home had authority to consent to entry of law-enforcement officer).  Appellant asserts that no consent was given, and, if given, it was not given freely.  “[T]he burden is on the government to show that the consent was freely given.”  Id. at 251 (quotation omitted).  Consent to a search may be implied by the circumstances.  Othoudt, 482 N.W.2d at 222“Mere acquiescence on a claim of police authority or submission in the face of a show of force is, of course, not enough.”  State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985).

The district court made specific findings that both the deputy and Klabunde were credible witnesses, that Klabunde consented to the deputy’s entry into the residence “either expressly or by implication” and that the deputy’s search fell within the limits of the consent given.  Despite the finding that both the deputy and Klabunde were credible, the district court’s order demonstrates that it implicitly found the deputy to be more credible than Klabunde because the district court found that the deputy had Klabunde’s express consent to enter the house and go to the basement to speak to appellant.  The district court analyzed “implied” consent as an alternative, stating that “even if” it accepted Klabunde’s version of events, the deputy’s entry into and search of appellant’s residence were constitutionally permissible.  This court defers to the credibility determinations of the fact-finder.  State v. Kramer, 668 N.W.2d 32, 38 (Minn. App. 2003), review denied (Minn. Nov. 18, 2003).  Because the evidence in the record supports the district court’s finding that Klabunde explicitly consented to the deputy’s entry and actions inside the house, the district court’s finding is not clearly erroneous, and we do not reach the district court’s alternative analysis of “implied” consent.