STATE OF MINNESOTA

IN COURT OF APPEALS

A05-756

Kevin Daniel Johnson, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed January 31, 2006

Affirmed

Stoneburner, Judge

Otter Tail County District Court

File No. C7041271

Reid W. Brandborg, 315 South Mill Street, Fergus Falls, MN 56537 (for appellant)

Mike Hatch, Attorney General, Kyle R. Gustafson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Huspeni, Judge.*

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

STONEBURNER, Judge

On appeal from an order sustaining the revocation of his driving privileges under the implied-consent law, appellant contends that the district court clearly erred in finding that a teen-aged child consented to an officer’s entry into appellant’s home. Because the court’s finding is not clearly erroneous, we affirm.

FACTS

Based on a telephoned tip, Sergeant Brian Fox, of the Otter Tail County Sheriff’s Department, was dispatched to investigate a suspected DWI. The address associated with the suspect’s vehicle was the residence of appellant Kevin Daniel Johnson. Sergeant Fox knocked on the front door of this home shortly after midnight and a teen-aged female answered the door. The exchange between Fox and the child was recorded by Fox’s in-squad video and audio recording system.

Fox, who was in uniform, identified himself as with the sheriff’s department and asked the child if her father was at home. She said that he was and answered affirmatively when Fox asked if he might speak with him. Fox testified that the child, “at that time opened the door further and stepped aside . . . .” Fox explained that initially the child had only opened the door about a “[f]oot and a half, two feet maybe at the most,” but that she opened the door as wide as it would open as she stepped away to retrieve appellant. Fox testified that he interpreted the child’s action “as an offer for me to step inside and wait by the door,” which he did.

When appellant arrived, Fox explained why he was there. Appellant admitted he had not consumed any alcohol since he arrived home and agreed to perform an eye-gaze nystagmus test. Appellant then agreed to step outside to perform additional sobriety tests. Appellant’s performance on the tests led to his arrest for DWI and revocation of his driving privileges. Appellant petitioned for district-court review of the revocation, contending that Fox did not have consent to enter the home and that evidence of his intoxication should be suppressed.[1]

On the record, the district court found that “[the child] opened the door wider, and the officer understood that as a welcome to step in.” The district court also found that “when [appellant] appeared he made absolutely . . . no objection, proceeded to talk to the officer, respond to questions . . . . And there’s simply no point anywhere in the testimony, in the exhibits, that indicate that this was not what was intended by [the child] or [appellant].” The district court also noted that the officer’s response was “entirely intelligent . . . in mosquito country. You don’t stand, hold doors open when somebody goes ‘Yeah’ . . . . [I]f somebody doesn’t want you in, they’ve got ways of showing it, either verbally or otherwise . . . .”

The district court declined to grant appellant’s request for permission to move for reconsideration and this appeal followed.

D E C I S I O N

A district court’s findings of fact are reviewed for clear error. State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994). A finding is not clearly erroneous if the record contains evidence that reasonably supports the finding. Id. We give deference to a district court’s factual findings based on its credibility assessments, because the findings may be attributable to reliance on “living testimony which elude[s] print.” Baumgartner v. United States, 322 U.S. 665, 670, 64 S. Ct. 1240, 1243 (1944); see also In re Welfare of Haaland, 346 N.W.2d 190, 192-93 (Minn. App. 1984) (stating that district court findings based on observation of witness demeanor “possess a certain integrity not contained in the written record alone”).

The United States and Minnesota Constitutions both prohibit “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. To protect the right to be free of such searches, a warrantless entry or search of constitutionally protected premises is presumed to be unreasonable and illegal. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001). Any evidence acquired by an officer as a result of an illegal entry must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415-16 (1963); Mapp v. Ohio, 367 U.S. 643, 656, 81 S. Ct. 1684, 1692 (1961).

Consent is a valid exception to the warrant requirement. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992). A person need not give verbal consent; it may be granted by nonverbal actions. Id. The state has the burden of proving voluntary consent. Id. Whether a person voluntarily consented to an entry is a question of fact reviewed for clear error. See Overline v. Comm’r of Pub. Safety, 406 N.W.2d 23, 28 (Minn. App. 1987) (stating that district court’s finding of consent was not “clearly erroneous”). Whether consent was voluntary is a question of fact determined by examining the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 224-27, 93 S. Ct. 2041, 2046-48 (1973). Examination of the totality of the circumstances requires evaluating “the nature of the encounter, the kind of person [the consenter] is, and what was said and how it was said.” State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994).

In a case involving nonverbal consent, the issue is typically whether the person engaged in actions, gestures, or movements demonstrating that police were free to enter. See, e.g., State v. Ulm, 326 N.W.2d 159, 162 (Minn. 1982) (upholding finding of consent based on a gesture that denoted an invitation); State v. Vang, 636 N.W.2d 329, 333 (Minn. App. 2001) (finding consent based on nonverbal gesture). State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (upholding finding of consent because, considering the totality of the circumstances, “[the] act of opening the inner door completely and then stepping back as if to make room for the officers to enter can only be interpreted as constituting limited consent to enter”).

A number of courts in other jurisdictions have also inferred nonverbal consent to enter based on the occupant’s act of stepping aside while opening the door wider. See United States v. Sanchez, 635 F.2d 47, 55 (2d Cir. 1980) (upholding finding of consent when police knocked on the door, occupant asked, “Who is it?”; police identified themselves and then a 13-year-old boy opened the door wide and stood back); State v. Blair, 638 S.W.2d 739, 748 (Mo. 1982) (stating substantial evidence existed to permit finding of consent when woman opened door in response to officer’s knock, and, when asked if defendant was there, opened the door wider and stepped back), cert denied, 459 U.S. 1188 (1983).

Appellant first argues that the court “committed clear error by finding that the screen door was opened for Sgt. Fox.” But we find no support in the record for the assertion that the court found the child opened an outer (screen) door. The district court’s finding regarding the child opening “the door” wider is necessarily a reference to the only testimony presented on the subject of opening doors, which was Fox’s testimony that the girl opened the inner door wider as she stepped away. The district court’s findings did not specifically reference a screen door.

Appellant next asserts that the court clearly erred because its oral findings indicate the court’s belief that, after the initial exchange between Fox and the child, Fox’s “path into [the] home was not impeded by any closed doors.” Appellant suggests this court should find that Fox “let himself into [the] home uninvited” because the videotape, he asserts, demonstrates the sound of the screen door opening as the girl moved to retrieve appellant.

In United States v. Turbyfill, 525 F.2d 57 (8th Cir. 1975), a person with authority over the premises opened the inner door. Id. at 58-59. Police officers identified themselves. Id. at 58. The person then “opened the inside door a few feet and stepped back” while the officers “opened the unlocked screen door and entered the house.” Id. The district court held that this sequence of actions was an implied invitation to the officers to enter. Id. On appeal, the Eighth Circuit stated that “[t]here was no error in the determination of the district court that the action of . . . opening . . . the door and stepping back constituted an implied invitation to enter.” Id.at 59.

Similarly, in this case, the district court’s finding of consent is not clearly erroneous. It is supported by Fox’s testimony that the child opened the door wider and stepped away and that he interpreted the child’s actions as an invitation to enter. Neither the officer’s testimony nor the videotape definitively establish to what extent, if any, the screen door was opened during Fox’s discussion with the child, or who initially opened the screen door. The videotape appears to show that the officer fully opened the screen door after the child agreed to get appellant. But this evidence is not fatal to the district court’s finding that the child’s actions constituted an invitation to enter under the totality of the circumstances.

Appellant next contends that the district court’s reliance on the child’s and appellant’s failure to object to Fox’s entry shows clear error, citing Othoudt,482 N.W.2d at 222, for the proposition that “[c]onsent to enter is not found simply by lack of objection to the entry.” Appellant is correct that a lack of objection to an officer’s entry, standing alone, cannot demonstrate voluntary consent to the entry. See, e.g., Pullen v. Comm’r of Pub. Safety, 412 N.W.2d 780, 781-82 (Minn. App. 1987) (reversing finding of consented-to entry when facts showed officer knocked on door, opened door and stepped in, and defendant did not object). But we have previously evaluated an occupant’s failure to object to police entry in connection with the totality-of-the-circumstances test. See, e.g., Carlin v. Comm’r of Pub. Safety, 413 N.W.2d 249, 251 (Minn. App. 1987) (upholding finding of consent based on, among other factors, the fact that “no one ever told the officer she could not enter the home, or asked her to leave.”); Overline¸ 406 N.W.2d at 28 (upholding finding of consent and noting that “no limitations were placed on the officer nor any objection made to his further entry into the home”). In this case, the district court did not clearly err in concluding that the lack of objection to the entry supports the finding that entry was by consent.

Affirmed.

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

[1] The parties did not raise the issue of whether evidence of appellant’s intoxication was only obtained because of the officer’s entry into appellant’s home.