This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-173

State of Minnesota,

Respondent,

vs.

Daryl Robert May,

Appellant.

Filed December 24, 1996

Affirmed

Willis, Judge

Isanti County District Court

File No. K694556

Hubert H. Humphrey, III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue S.W., Cambridge, MN 55008 (for Respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Parker, Presiding Judge, Willis, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Daryl Robert May challenges his convictions of second-degree assault, reckless use of a dangerous weapon, and disorderly conduct, arguing that evidence found in his home should have been suppressed because his consent to the search was not voluntary. We affirm.

FACTS

On June 20, 1994, Charles Phillip and Gary Harron went to May's home, where Daniel Kenney was also present. The men were talking and drinking alcohol when May and Phillip began to argue about money Phillip owed to May. Phillip and Harron then left May's house and went to Phillip's house.

May and Kenney took two shotguns from May's house and proceeded to Phillip's house. When they arrived, May approached Phillip with a shotgun in his hand. May pointed his gun at Phillip three times, and all three times Phillip pushed the gun away. The third time Phillip pushed the gun away, May shot it over Phillip's head. Shortly thereafter, May and Kenney left Phillip's home.

Minutes after May and Kenney returned to May's home, several police officers arrived. May ignored the initial efforts of the police to talk to him, but eventually went outside. Once outside, May was directed to stand near one of the police vehicles and was frisked. The police asked May if they could enter his home and look for guns. May told his daughter to take the police inside and show them where the guns were. The police confiscated approximately 12 weapons.

May was charged with second-degree assault, reckless use of a dangerous weapon, disorderly conduct, and criminal damage to property. A contested omnibus hearing was held to determine whether evidence obtained pursuant to the questioning and the search on the night of the incident should be suppressed at trial. The court found that May voluntarily and intelligently gave consent to the search of his home and the seizure of the weapons and denied May's motion to suppress the guns. After a jury trial, May was found guilty of second-degree assault, reckless use of a dangerous weapon, and disorderly conduct.

D E C I S I O N

The Fourth Amendment to the United States Constitution requires police officers to obtain a warrant before entering a residence. U.S. Const. amend. IV; Payton v. New York, 445 U.S. 573, 576, 100 S. Ct. 1371, 1374-75 (1980). It is, however, constitutionally permissible for the police to conduct a search without a warrant if the search is pursuant to voluntarily given consent. State v. Lotton, 527 N.W.2d 840, 843 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). The determination of whether consent was voluntary is a question of fact and is based on the totality of the circumstances. State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994). Voluntary consent is an "'essentially free and unconstrained choice'" that is given without police coercion. Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 2047 (1973) (citation omitted). The standard of review for a determination of whether consent was voluntary is "whether the trial court 'clearly erred.'" State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990), cert. denied, 498 U.S. 1049 (1991).

May argues that the trial court erred in finding that his consent was voluntary because: (1) he was taken into custody upon exiting his home, (2) his home was surrounded by police officers, some with their weapons drawn, (3) he had been drinking alcohol, (4) he was not told he had the right to refuse the request to search, (5) he merely acquiesced in the search, (6) he did not have significant prior experience with the police, and (7) he had only a ninth-grade education.

The fact that May was in custody is not sufficient to demonstrate that his consent was involuntary. United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828 (1976). May argues that the fact that he was in custody combined with the fact that there were a number of officers present, some with guns drawn, made it impossible for him to consent freely to the search. It appears that while some officers may have had their weapons drawn when May exited his home, none did when May consented to the search. In Alayon, the Minnesota Supreme Court concluded a consent to a search was voluntary where the trial court found that police had put away their guns before consent was given. 459 N.W.2d at 330. Further, the Eighth Circuit has found a consent to be voluntary despite the presence of officers with drawn weapons. United States v. Smith, 973 F.2d 1374, 1376 (8th Cir. 1992) (concluding a consent was voluntary even though officers had guns drawn, where officers used no physical force or threats and left when requested).

May argues that the fact that he had been drinking must be considered in determining whether his consent was voluntary, citing United States v. Johnson, 563 F.2d 936 (8th Cir. 1977), cert. denied, 434 U.S. 1021 (1978). That court concluded that the defendant's intoxication was not extreme enough to prevent his consent from being the product of rational intellect and free will. Id. at 939. Although the record here shows May had been drinking, it does not indicate he was impaired to the extent that he could not give a valid consent.

It appears that May was not told he had the right to refuse the request to search his home. While knowledge of the right to refuse a request for consent to a search is a factor to consider in examining the totality of the circumstances of consent, it is not a requirement for a valid consent. Dezso, 512 N.W.2d at 881.

May argues he merely acquiesced in, rather than consented to, the search because he did not actively participate in the search, but instead directed his daughter to show the police the location of the guns. Mere acquiescence to a claim of police authority or submission in the face of a show of force is not valid consent. State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985). May did not need to participate directly in the search in order to consent, however, and his instruction to his daughter was more in the nature of explicit consent than mere acquiescence to the search. See id. (concluding that where party had cooperated with police earlier in investigation, acts of opening door and stepping aside were more than mere acquiescence and constituted valid consent to enter).

In determining whether a consent was voluntary, a court may consider level of intelligence, Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047, and experience with law enforcement. See Howard, 373 N.W.2d at 599. There is no evidence in the record, however, that May's ninth-grade education or his lack of experience with law enforcement officials prevented him from understanding the situation or from consenting voluntarily.

There is nothing in the record that shows the police made threats or misrepresented their purpose in obtaining consent to search May's home. May was not coerced into allowing the search; in fact, it appears he readily consented to it. Further, May was leaning on one of the squad cars and smoking a cigarette when he gave consent, which, as the trial court noted, "does not demonstrate an individual who feels intimidated and coerced into giving information."

It was not error for the trial court to conclude May voluntarily consented to the search.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.