This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Mark James Cain,


Filed March 14, 2006


Stoneburner, Judge


Washington County District Court

File No. K7053576


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


Doug Johnson, Washington County Attorney, Robert Molstad, Assistant County Attorney, 14949 62nd Street North, Box 6, Stillwater, MN 55082-0006 (for appellant)


Andrew S. Birrell, Birrell & Newmark, Ltd., Suite 2270, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




            The state appeals a pretrial order suppressing a gun and two statements as fruits of an illegal search and seizure that occurred after respondent confronted young people who were setting off fireworks on or near his property.  Because respondent voluntarily led the police to the gun, was not in custody when he made the first statement, and voluntarily made the second statement after a Miranda warning, we reverse.



David Kirchoffner reported to sheriff’s deputies that while he was setting off fireworks with friends earlier that evening, a man walked out of the woods, grabbed him, and held a gun to his head.  Kirchoffner said that the unidentified man told him, “You’ve got a loaded gun in your face.”  Kirchoffner and a witness described the gun and said it had a flashlight and laser attached.  They also described the assailant.

The two deputies who interviewed Kirchoffner, Ackerknecht, and Webb then went to respondent Mark Cain’s home, knowing that someone at respondent’s address had, that same evening, called to complain about juveniles drinking on his property and because Kirchoffner’s license plate matched the plate number given by the caller as belonging to the alleged trespassers.  Deputy Ackerknecht testified that they went to respondent’s home with the dual purpose of investigating his complaint and discussing the assault that Kirchoffner had reported. 

Respondent invited the deputies into his residence.  The deputies did not inform him that his conversation with them was being recorded.  The deputies verified that respondent had called them, and, when respondent offered to show them where the trespassers had been, the deputies told him that they should “get your side of the story first.”  The deputies did not inform respondent that they were also there to investigate a reported assault.

Respondent described confronting individuals who were setting off fireworks near his home.  He said one young man held a large firework in a threatening manner and that this youth had initiated a physical confrontation by pushing respondent.  Respondent told the deputies that he had his flashlight during this confrontation.  The flashlight was lying on a kitchen table.  Respondent described how the flashlight could be mounted to a .45 pistol. 

At this point, respondent said, “Excuse me I’m going to get some water.”  Respondent walked toward his kitchen faucet but then started to go upstairs.  The district court found that respondent was “stopped by the deputies,” quoting Ackerknecht’s testimony that “[respondent] started in the kitchen, turned the faucet on, shut the water off, began walking up the staircase to the upper level of the house.  I stopped him there.”  The deputy then asked where the gun was located.  Respondent said it was in his bedroom closet and described the gun for the deputies.  The deputies asked if they could look at the gun, and respondent replied that his wife was sleeping in the room where the gun was located but that he would be “happy” to bring it to the deputies.  A deputy told respondent that they would prefer if he not handle the gun himself.  Respondent then led the deputies to the bedroom where his wife was sleeping, walked to a closet, and pointed to a gun in the closet.

The deputies checked the gun for ammunition and seized it.  The deputies then informed respondent that a young man had reported being assaulted with a similar handgun that night.  Respondent then acknowledged that during the confrontation he held the flashlight “like this” and told the young man that he had a gun.  The deputies arrested respondent.

The next morning, respondent gave a recorded statement to a different deputy.  Respondent was read a Miranda warning at the beginning of the interview and immediately agreed to talk to the deputy.  Respondent described the events and acknowledged that he had the gun during the confrontation.  Respondent stated that he only took the gun because he needed the attached flashlight to walk through the woods. Respondent stated that he held the flashlight up and that Kirchoffner would have seen the gun.  Respondent could not recall stating to Kirchoffner that the gun was loaded but indicated that he wanted Kirchoffner to think that the gun was loaded.

            The district court granted respondent’s motion to suppress the gun and all of respondent’s statements made in his home after the point at which respondent was stopped from going upstairs, on the ground that respondent was seized and in custody at that point.  The court found that part of the taped statement (after respondent was “seized and in custody”) as well as the gun itself, were inadmissible because “any further interrogation of [respondent] and seizure of evidence was subject to the requirements of the Fourth and Fifth Amendments of the U.S. Constitution and Article I, Sections 7 & 10, of the Minnesota Constitution.”   Additionally, the court suppressed respondent’s statement made the day after his arrest, concluding it was “derivative of [respondent’s] illegal seizure and is the tainted fruit of the poisonous tree.”  This appeal followed.



In an appeal from a district court’s order suppressing evidence when the facts are not in dispute, we may independently review the facts and determine as a matter of law whether the district court erred in suppressing the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

I.          Critical impact

At the state’s request, an appellate court will reverse a pretrial order of the district court if “the state demonstrates clearly and unequivocally that the trial 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 (Minn. 1977).  Critical impact exists “not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.”  State v. Kim¸ 398 N.W.2d 544, 551 (Minn. 1987).  The state need not demonstrate that suppression has rendered the remaining evidence insufficient as a matter of law or so weak that prosecution is impossible. 550-51.

The state asserts that, because possession of a dangerous weapon is an essential element of second-degree assault, the charged offense, suppression of respondent’s statements, and the gun will have a critical impact.  Respondent contends that the critical-impact test is not met because the state can prove possession of a gun by presenting other available evidence, such as testimony from the witness and victim.  Respondent argues that respondent’s statements and the gun are “merely cumulative . . . not critical” evidence. 

To properly analyze critical impact, we examine all other admissible evidence available to the state to determine the effect of the absence of the suppressed evidence.  State v. Zanter, 535 N.W.2d 624, 630-31 (Minn. 1995).  And we

examine the inherent qualities of the suppressed evidence itself, its relevance and probative force, its chronological proximity to the alleged crime, its effect in filling gaps in the evidence viewed as a whole, its quality as a perspective of events different than those otherwise available, its clarity and amount of detail and its origin.  Suppressed evidence particularly unique in nature and quality is more likely to meet the critical impact test.


In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999) (citation omitted).

“[A] conviction can rest on the uncorroborated testimony of a single credible witness.”  State v. Hill, 285 Minn. 518, 518, 172 N.W.2d 406, 407 (1969).  In this case, the state has two witnesses who will testify that they observed respondent holding a gun and who can described the gun in detail.  The state can also introduce the flashlight, respondent’s acknowledgement that he had the flashlight during the confrontation, and his statement that the flashlight could be attached to a gun.  That evidence tends to corroborate the witnesses’ claims that appellant had a gun with a flashlight attached to it.  We conclude that it would not be impossible for the state to obtain a conviction of the charged offense even if respondent’s statements and the gun are suppressed.  But just because a conviction is possible does not mean that suppression does not have a critical impact on the state’s case. 

This court has held that suppression of corroborating evidence that “may assist the jury in determining credibility” created a critical impact on the state’s case in a case in which the only other evidence of a crime was the victim’s testimony.  State v. Hanson, 355N.W.2d 328, 329 (Minn. App. 1984) (involving suppression of sexually explicit materials found in defendant’s possession when child-victim of sexual assault had stated that defendant possessed such materials at the time of assault).  In the context of child-sexual-abuse cases, the supreme court has also indicated that suppression of a defendant’s confession will significantly reduce the likelihood of a successful prosecution.  State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990).  Here, the gun and respondent’s statements confessing to having the gun and threatening Kirchoffner with the gun would prevent respondent from discrediting the witnesses, significantly changing the strength of the state’s case such that we conclude that the evidence has a critical impact.

II.        Suppression of Evidence


1.                  Seizure of the gun


The state first asserts that the court erred in ordering suppression of the handgun, arguing that respondent consented to show the police where the gun was located.  The district court did not make any findings expressly related to consent.  The court relied on its legal conclusion that respondent was in custody at the time he was asked about the gun and the lack of a search warrant to conclude that the gun had to be suppressed. 

Under the Fourth Amendment to the U.S. Constitution and article I, section 10 of the Minnesota Constitution, searches conducted without a warrant are per se unreasonable unless justified by an exception to that requirement.  State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992).  Consent is one of the exceptions to the warrant requirement.  Id. The state bears the burden of proving that consent was freely and voluntarily given.  Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 2045 (1973).  The question of whether “consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” 227, 93 S. Ct. at 2047-48.  “[Because] the issue of consent is usually a factual one, a district court’s finding [regarding voluntariness] must be accepted on appeal unless the finding clearly erroneous.”  United States v. Allison, 619 F.2d 1254, 1262 (8th Cir. 1980).

In this case, the district court implicitly found that there was no voluntary consent to the search because respondent was in custody when he led the deputies to the gun and had not been informed that the deputies considered him a suspect in a crime.  Based on the record, we conclude that this implicit finding is clearly erroneous.

An officer’s failure to tell a defendant that he is suspected of a crime does not invalidate the defendant’s consent to a search.  United States v. Turpin, 707 F.2d 332, 335 (8th Cir. 1983) (upholding finding of voluntary consent to search despite officer’s affirmative misrepresentation to defendant that he was not a suspect in homicide under investigation and that he was not “in trouble”).  Moreover, the fact that a suspect is in custody when he consents to a search is not “enough in itself to demonstrate a coerced     . . . consent to search.”  United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828 (1976); see also Harris, 590 N.W.2d at 104 (stating that “[c]onsent is not involuntary merely because the person giving the consent has been seized”). 

In this case, the deputies politely asked an extremely cooperative respondent if they could see the gun.  Absent any evidence of coercion, the district court’s finding that respondent was in custody when he was stopped from going upstairs does not make his consent to show the deputies the gun involuntary.  Harris,590 N.W.2d at 104.  The deputies in this case did not affirmatively misrepresent their purpose in seeking the gun.  Although the deputies did not immediately inform respondent of the assault complaint, almost immediately after entering the home, they told respondent that they were there to get his “side of the story,” indicating that the other side of the story had been or would be investigated. 

In State v. Shellito, the district court held that because consent to a search was given after Shellito was unlawfully detained, the evidence found after the unlawful detention had to be suppressed under the “fruits-of-the-poisonous-tree” doctrine.  594 N.W.2d 182, 186 (Minn. App. 1999).  We noted that the district court had failed to recognize that consent could still be a valid basis for the search despite the illegality of the custody if the consent was nonetheless “manifestly voluntary.”  Id.  We stated that consent is generally a “credibility issue” to be determined by the district court and, because the court had never directly addressed the state’s argument regarding consent, a remand was necessary for findings on whether the consent was voluntary. 187.

In this case, we need not remand because the record contains both an audiotape of the entire encounter that led to discovery of the gun and the deputy’s omnibus testimony.  On this record, it is clear that the deputies did not coerce respondent into showing them the gun.  Respondent’s consent was manifestly voluntary on the audiotape.  Therefore, we conclude that the district court erred when it suppressed the gun.

2.         Statement made in the home


The state argues that the district court erred in ruling that respondent was “seized and in custody” in his home when he admitted that he threatened  Kirchoffner with a gun at the confrontation.  The state contends that respondent was not in custody when he made this statement, therefore no Miranda warning was necessary to prevent suppression of the statement.  

When an individual is in custody, a Miranda warning must be given before commencement of any interrogation.  Miranda v. Arizona¸384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); State v. Rosse, 478 N.W.2d 482, 484 (Minn. 1991).  “[W]ithout proper safeguards the process of in-custody interrogation . . . contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.”  Miranda, 384 467, 86 S. Ct. at 1624.  “[W]hether a defendant was ‘in custody’ at the time of interrogation is a mixed question of law and fact . . . .”  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).

This court makes an independent determination about whether [a defendant] was in custody. . . . [W]e review the district court’s findings for clear error.  We grant considerable but not unlimited deference to a trial court’s fact-specific resolution of such an issue when the proper legal standard is applied.


State v. Staats, 658 N.W.2d 207, 211 (Minn. 2003) (citations and quotation omitted).  But “[w]here an interrogation is videotaped, [and] ‘there is no real dispute . . . concerning the facts’ . . . we will independently review whether a suspect or witness was in custody at the time of the interrogation.”  State v. Edwards, 589 N.W.2d 807, 811-12 (Minn. App. 1999) (quoting Wiernasz, 584 N.W.2d at 4), review denied (Minn. May 18, 1999).

[T]he test for determining the need for a Miranda warning is not whether the interrogation has coercive aspects to it or whether the investigation has focused on the person being questioned, but whether the person being questioned is in custody or is deprived of his freedom of action in any significant way.


State v. Palm, 299 N.W.2d 740, 741 (Minn. 1980) (emphasis added).  To determine whether a defendant was in custody we ask whether

a reasonable person in the suspect’s situation [would] have understood that he was in custody[.]  If a suspect has not yet been arrested, a district court must examine all of the surrounding circumstances and evaluate whether a reasonable person in the suspect’s position would have believed he was in custody to the degree associated with arrest.


State v. Miller, 573 N.W.2d 661, 670 (Minn. 1998) (citations omitted). 

Custodial interrogation can exist even though the questioning occurs in the suspect’s home.  Orozco v. Texas, 394 U.S. 324, 325-26, 89 S. Ct. 1095, 1096-97 (1969); Wiernasz, 584 N.W.2d at 3.  The supreme court has noted that the following factors

may combine to indicate custody:  police interviewing the suspect at the police station;  the officer telling the individual that he or she is the prime suspect;  officers restraining the suspect’s freedom;  the suspect making a significantly incriminating statement;  the presence of multiple officers (six); and a gun pointing at the suspect. 


Staats, 658 N.W.2d at 211.  And


one or more of the following circumstances may indicate a suspect is not in custody:  questioning taking place in the suspect’s home;  police expressly informing the suspect that he or she is not under arrest;  the suspect leaving the police station at the close of the interview without hindrance;  the brevity of questioning (fifteen minutes);  the suspect’s freedom to leave at any time;  a nonthreatening environment;  and the suspect’s ability to make phone calls.


Id. at 212.

The supreme court held that Staats was not in custody because he was not told he was under arrest, the questioning took place in his home, and the recording of the interrogation did not reveal any intimidation or show of force by the police.  Id.

In this case, the district court’s conclusion that respondent was in custody was based principally on the court’s finding that a deputy stopped respondent from going up the stairs and, in part, on the court’s finding that the deputies had identified respondent as a suspect and were in his home to investigate the assault complaint. 

The record establishes that the deputy stopped respondent from going upstairs by saying, “Oh, hey Mark” and indicating that the deputies only had a few more questions for him.  As noted above, the record demonstrates that the deputies did not employ any coercive techniques, such as a show of force, to restrict respondent’s movement.  Respondent told the deputies that he would prefer they not go into the bedroom where his wife was sleeping, but expressed understanding when a deputy said respondent should not handle the gun.  Respondent then voluntarily led the deputies to the gun.  The record as a whole does not reveal circumstances in which respondent could objectively and reasonably have believed he was in custody. 

Additionally, we have repeatedly noted that the fact that interrogators consider the defendant to be a suspect does not create a custodial atmosphere.  E.g.  State v. Norberg,423 N.W.2d 733, 736 (Minn. App. 1988); State v. Martinson,422 N.W.2d 282, 287 (Minn. App. 1988).  Nor does the fact “that an officer consciously seeks to elicit incriminating statements . . . automatically entitle the defendant to a Miranda warning.”  State v. Voigt, 486 N.W.2d 793, 795 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).  Under the totality of circumstances, we conclude that respondent was not in custody when he told the deputies that he had threatened Kirchoffner with a gun.  Accordingly, the lack of a Miranda warning does not require suppression of this statement.

3.         Suppression of statement given after Miranda warning

The district court also suppressed respondent’s in-custody statement, stating:  “The statement made by [respondent] the following morning . . . is derivative of [respondent’s] illegal seizure and is the ‘tainted fruit of the poisonous tree.’”  As the state notes, it is not entirely clear what the district court meant by “illegal seizure.”  The only argument respondent made for suppression of his second statement was that his prior statement was in violation of Miranda.  Because we have concluded that respondent was not entitled to a Miranda warning at the time of the first statement, there is no basis for suppression of respondent’s custodial statement, which was freely given after a Miranda warning.

Furthermore, the supreme court has held that an inculpatory statement, given after a Miranda warning, need not be suppressed simply because an earlier voluntary statement was obtained in violation of Miranda.

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. . . . [T]here is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary.  The relevant inquiry is whether, in fact, the second statement was also voluntarily made. . . . [T]he finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.


State v. Champion, 533 N.W.2d 40, 44 (Minn. 1995)(quoting Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293 (1985)).  In 2004, the Minnesota Supreme Court revisited this issue and held that “we will continue to follow the Elstad rule in comparable circumstances.”  State v. Bailey, 677 N.W.2d 380, 389 (Minn. 2004).  The record in this case clearly demonstrates that both of respondent’s statements were voluntary, and there is no basis to suppress either statement.