This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Keith Thomas Hippler,


Filed January 26, 1999


Peterson, Judge

Dakota County District Court

File No. K495435

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for appellant)

John G. Westrick, Westrick & McDowall-Nix, PLLP, 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101; and

Robert D. Miller, Robert D. Miller & Associates, 119 North Fourth Street, Minneapolis, MN 55401 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Harten, Judge.



This appeal is from a pretrial order granting respondent Keith Thomas Hippler's motion to suppress statements he made to a police detective. Appellant State of Minnesota argues that the district court clearly erred in suppressing Hippler's statement to the police detective because the statement was voluntary. We affirm.


J.E., a minor child, told her mother that respondent Keith Thomas Hippler had touched her in the crotch area through her clothes. J.E.'s mother reported Hippler's alleged sexual misconduct to the Eagan Police Department, which began an investigation. Sergeant Linda Myhre went to Hippler's residence and took a tape-recorded statement, during which Hippler denied the allegations of sexual misconduct.

Hippler later admitted the inappropriate touching to J.E.'s mother. J.E.'s mother told Hippler that she would not press charges against him if he sought counseling and apologized to her family. J.E.'s mother also asked Hippler to give a statement to police so that she would have some recourse if he did not seek counseling.

Subsequently, Myhre contacted Hippler and asked him to come to the police station to give a statement. Hippler voluntarily went to the station and gave a statement in which he admitted to touching J.E. sexually on two separate occasions. Before making his statement, Hippler had the following exchange with Myhre:

Myhre: Uh, Keith, just so that you know, whatever we talk about with regards to this case is not going to be charged. Do you understand that? It's not going to be charged criminally?

Hippler: Yes.

Myhre: The only way that we would send this down to the County Attorney's office is if you did not do what you and [J.E.'s mother] agreed, and that is counseling.

Hippler: Yes.

Myhre: Okay.

Hippler: Yes, I understand.

Hippler started counseling, but quit after attending only a few sessions. Hippler resumed counseling for a few more sessions after learning that charges were being brought against him, then quit altogether.

After pleading guilty to second-degree criminal sexual conduct, Hippler moved to withdraw his guilty plea when corrections officials recommended that his sentence be executed because he failed to complete the recommended sex offender treatment program. The postconviction court denied Hippler's motion to withdraw his guilty plea, but on appeal, this court reversed and remanded. Following a contested omnibus hearing, the district court granted Hippler's motion to suppress the statements he made to Myhre at the police station.


In a pretrial appeal, this court will reverse a district court's determination only if the state demonstrates clearly and unequivocally that (1) the trial court erred in its judgment, and (2) the error will have a critical impact on the outcome of the trial. State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).

To demonstrate critical impact, it is not necessary that the state show that the exclusion of the evidence completely destroys its case, but rather that it significantly reduces the likelihood of a successful prosecution. Id. at 550-51. The state argues, and Hippler concedes, that the "critical impact" portion of the test has been met because suppression of Hippler's confession would significantly reduce the likelihood of convicting Hippler where J.E. was nine years old when the alleged offense occurred six years earlier. See State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990) (suppression of confession in child sex abuse case normally will significantly reduce likelihood of successful prosecution); State v. Anderson, 396 N.W.2d 564, 564-65 (Minn. 1986) (suppression of confession in sexual assault prosecution would have critical impact on case).

In a pretrial suppression hearing where the defendant seeks suppression of a confession, the state has the burden of proving by a preponderance of the evidence that the confession was voluntarily given. State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995). Statements are subject to suppression as violative of due process if the statements were coerced or involuntary. State v. Spaeth, 552 N.W.2d 187, 194 (Minn. 1996). An appellate court is not bound by the district court's determination on whether the confession was voluntary. Thaggard, 527 N.W.2d at 807.

Rather, its duty is "to independently determine, on the basis of all factual findings that are not clearly erroneous, whether or not the confession was voluntary."

Id. (quoting Anderson, 396 N.W.2d at 565).

To determine whether a confession was voluntary, a court must examine the totality of the circumstances. State v. Jungbauer, 348 N.W.2d 344, 346 (Minn. 1984). Factors to consider when making this determination include (1) the age, maturity, intelligence, education, and experience of the defendant; (2) the ability of the defendant to comprehend; (3) the lack of or adequacy of warnings; (4) the length and legality of the detention; (5) the nature of the interrogation; (6) whether the defendant was deprived of any physical needs; and (7) whether the defendant was denied access to friends. Id.

Although the supreme court has expressed disapproval of the use of promises to elicit a confession, "`courts do not mechanically hold confessions involuntary just because a promise has been involved.'" State v. Slowinski, 450 N.W.2d 107, 112 (Minn. 1990) (quoting State v. Anderson, 298 N.W.2d 63, 65 (Minn. 1980)). Rather, the use of promises is simply part of the totality-of-the-circumstances inquiry. Thaggard, 527 N.W.2d at 811; Slowinski, 450 N.W.2d at 112. However, in considering whether a promise made by police rendered a confession involuntary, it is critical that the promise not be the sort of promise that might tempt an innocent person to confess. See Thaggard, 527 N.W.2d at 812 (key fact in determining that confession was voluntary was absence of any indication that defendant was led to believe that he would not be prosecuted if he confessed).

The record demonstrates that Hippler was an adult who had no apparent intellectual or physical defects and who was not under arrest when he gave his statement. The record also indicates that Hippler voluntarily went to the police station, gave a brief statement without being detained, and was free to leave after making the statement. Although these facts suggest that Hippler's statement was voluntary, they are overwhelmed by the critical fact that Myhre promised Hippler that whatever he talked about, he would not be charged criminally if he attended counseling. Because a promise not to charge is the type of promise that could cause an innocent person to confess, we conclude that the state has not demonstrated clearly and unequivocally that the district court erred in concluding that Hippler's statement was not voluntarily given.