This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed December 20, 2005
Washington County District Court
File No. K0-05-1717
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Wright, Judge.
motion of the prosecuting attorney, an appellate court will reverse a pretrial
order if “the state demonstrates clearly and unequivocally that the [district]
court has erred in its judgment and that, unless reversed, the error will have
a critical impact on the outcome of the trial.”
State v. Webber, 262 N.W.2d
157, 159 (
suspect in custody makes an “unambiguous and unequivocal invocation of the
right to remain silent,” questioning must cease. State
v. Day, 619 N.W.2d 745, 749 (
Here, respondent told the interrogating officer that he was advised by an attorney not to say anything; when the officer asked if that was his choice, he said, “I, all I, I’m just going with what I’m told, so I would love to talk to you some more but I, I’m thinking that he was advising me.” The officer then said, “Okay, so you’re opting not to say anything more?” to which respondent replied, “I, yes.” This is an unambiguous assertion of respondent’s right to remain silent. The investigator’s continuing attempts to encourage respondent to talk violated his right to remain silent.
argues that respondent reinitiated contact when he agreed to talk “off the
record.” A suspect who has invoked the
right to remain silent can waive this right by reinitiating contact with the
Respondent unequivocally invoked his right to remain silent by indicating that an attorney told him to answer no further questions. The investigator skillfully prodded respondent into continuing to talk by agreeing that respondent had the right to remain silent, but suggesting that he was “just trying to find out what happened.” Respondent stated that he would like to explain, but he wanted to go “off the record,” apparently assuming that an off-the-record conversation would not be used in any way. Although the investigator switched off the audiotape at respondent’s request, the videotape continued to play, unbeknownst to respondent. By so doing, the investigator failed to scrupulously honor respondent’s invocation of his right to remain silent.
Given the totality of the circumstances here, we cannot conclude that respondent made a knowing, intelligent, and voluntary waiver of his right to remain silent as instructed by his attorney when he agreed to speak “off the record.” Because the state has failed to sustain its burden of proof, the district court’s order suppressing the statements is not erroneous.
 The state conceded at oral arguments that respondent was in custody.