A06-260

State of Minnesota,

Respondent,

vs.

Kari Ann Nelson,

Appellant.

Filed March 13, 2007

Affirmed

Willis, Judge

Meeker County District Court

File No. 47-CR-05-211

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

Stephanie L. Beckman, Meeker County Attorney, 325 North Sibley Avenue, Litchfield, MN 55355-2155 (for respondent)

Robert D. Schaps, 236 North Sibley Avenue, Litchfield, MN 55355 (for appellant)

Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Dietzen, Judge.

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

WILLIS, Judge

Appellant challenges her conviction of second-degree driving while impaired, arguing that the district court erred by determining that the arresting state trooper had consent to enter the bedroom in which appellant was sleeping and that appellant’s statement that she had driven her vehicle earlier that night was voluntary. We affirm.

FACTS

On August 9, 2005, at approximately 2:45 a.m., a motorist reported to police that a white Pontiac Grand Am had crossed over the center line of highway 24 in Meeker County, nearly hitting the motorist head-on before driving into and then out of a ditch. The motorist reported the Grand Am’s license-plate number and that the motorist had followed the vehicle to a residence in Watkins. Trooper Jeffrey Schroepfer was dispatched to investigate. While he was driving to the residence, dispatch told Trooper Schroepfer that the Grand Am was registered to appellant Kari Ann Nelson and that although appellant had a valid driver’s license, “any use . . . of alcohol or drugs invalidates [appellant’s] license.”

When he arrived at appellant’s residence, Trooper Schroepfer saw a Grand Am parked in the driveway. The vehicle had damage to its left front panel consistent with striking “a sign or something similar.” Appellant’s husband, Dave Nelson, who was standing outside when the trooper arrived, claimed that he had been driving the vehicle and had driven into the ditch because he had fallen asleep. When asked, Nelson was unable to tell the trooper where on the highway the incident occurred.

Trooper Schroepfer requested Nelson’s license, and Nelson went to the passenger side of the Grand Am. Trooper Schroepfer testified that when Nelson opened the door, the trooper could see a purse inside the vehicle. Trooper Schroepfer also testified that it had appeared that the driver’s seat was too far forward for a driver of Nelson’s size. Trooper Schroepfer asked Nelson to get into the vehicle; and when Nelson did so, Trooper Schroepfer observed that Nelson was “way too close to the steering wheel to be driving.” Trooper Schroepfer testified that, based on his observations, he suspected that appellant was the driver at the time of the incident.

When Trooper Schroepfer asked Nelson where appellant was, Nelson stated that because of marital difficulties, appellant had her own apartment in Dassel, and she was there. Trooper Schroepfer testified that Nelson then invited him to enter the house to “go look” for appellant. The trooper testified that after Nelson’s invitation to enter the house, he “talked to [Nelson] a little more” and then asked if he could enter the house. Nelson gave the trooper permission to enter and led the way into the house.

Trooper Schroepfer entered the house through a door that opened into the kitchen, and he saw that the door to an adjacent bedroom was partially open. The trooper testified that he could see the feet of someone lying on a bed inside the bedroom. When the trooper asked whether the person was appellant, Nelson confirmed that it was.

Trooper Schroepfer entered the bedroom to talk with appellant. As he approached appellant, he noticed a strong odor of alcohol from appellant and saw that a young child was on the bed with appellant. Appellant initially denied having driven. Trooper Schroepfer told appellant that he suspected that she had been drinking and driving, and that she could be arrested for driving while impaired; the trooper also told appellant that he suspected that her husband had been “covering for her” and that her husband could be arrested for obstructing the investigation. If both adults were arrested, the trooper told appellant, the child would be removed by social services. Appellant then admitted to driving the vehicle. Trooper Schroepfer administered a field sobriety test and a preliminary breath test, and determined that appellant’s alcohol concentration was .194.

Appellant was charged with driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1), (5) (2004). Appellant moved to dismiss the complaint, arguing that (1) Trooper Schroepfer exceeded the scope of Nelson’s consent to enter the house when the trooper went into the bedroom, and (2) appellant’s admission that she had driven her vehicle earlier that night was involuntary. A hearing was held at which Trooper Schroepfer, Nelson, and appellant testified. Following the hearing, the district court denied appellant’s motion. Applying the plain-view doctrine, the district court ruled that the trooper had a lawful right to enter the bedroom and arrest appellant because he (1) could see appellant in the bedroom, (2) had “reason to believe” that appellant had “committed a crime based on the complainant’s report,” and (3) had a right to enter the bedroom because it was an “open,” not a “protected,” area. The district court also determined that, considering the totality of the circumstances, appellant’s statement was voluntary because the encounter was brief, the trooper was not “deceptive or threatening,” and the trooper merely informed appellant that continued deception was futile and that appellant “could be arrested, her husband could be arrested, and their daughter could be placed with social services should both adults be arrested.”

After the district court denied appellant’s motion, appellant and the state agreed to a trial on stipulated facts, and the district court convicted appellant of second-degree driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(1). The district court sentenced appellant to 365 days in jail but stayed the sentence pending this appeal.

D E C I S I O N

Appellant argues first that the district court erred by determining that the search and seizure of appellant was lawful because Trooper Schroepfer had Nelson’s consent to go into the bedroom. When reviewing the denial of a pre-trial suppression order, this court independently reviews the record and determines, as a matter of law, whether the district court erred by not suppressing the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). But we will defer to the district court’s factual findings unless those findings are clearly erroneous. State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

A warrantless search and seizure is presumptively unreasonable—and hence violates the Fourth Amendment—subject to a few well-defined exceptions. State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985). Consent of the occupant of a house to conduct a search is a well-defined exception. Id. Appellant concedes that Trooper Schroepfer had consent to enter her house but argues that he exceeded the scope of that consent when he went into the bedroom.

Although the district court analyzed this issue under the plain-view doctrine, we conclude that the proper analysis is a determination of whether Nelson’s consent to Trooper Schroepfer extended to the bedroom in which the trooper found appellant. The scope of consent is judged objectively, and its extent is determined by what a reasonable officer would have understood the scope of that consent to be. Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04 (1991). Although consent may be implied by conduct, failure to object or a mere acquiescence to a claim of official authority is not the same as consent. See State v. Powell, 357 N.W.2d 146, 149 (Minn. App. 1984) (discussing implied consent), review denied (Minn. Jan. 15, 1985); see also State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (discussing failure to object); State v. Howard, 373 N.W.2d 596, 599 (Minn. 1985) (discussing mere acquiescence). If the trooper had consent to enter the bedroom, he was permitted to make a warrantless arrest of appellant. See State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992); see also Minn. Stat. § 169A.40, subd. 1 (2004) (providing that police may arrest a person for driving while impaired with or without a warrant regardless of whether the crime was committed in the officer’s presence).

Under these facts, we conclude that a reasonable officer would have understood that the scope of Nelson’s consent included the open bedroom. The district court found that the trooper asked whether appellant was home and whether he could go into the house, and that Nelson allowed the trooper to enter the house. The record does not show that Nelson limited his consent to entry into the kitchen, and he did not object to the trooper’s search, even after the trooper asked him whether the person lying on the bed was appellant. See Powell, 357 N.W.2d at 149 (upholding search of family room when mother gave permission to come in and speak with defendant but also noting that mother did not object to officer’s entry of family room and did not limit consent). Further, Nelson’s consent to enter the house followed extensive questioning of Nelson by the trooper regarding appellant’s whereabouts, and a reasonable officer would have understood that consent given after such questioning was not limited to standing in the kitchen. On these facts, we conclude that a reasonable officer would have understood that the consent given extended to the open bedroom.

Appellant next argues that her admission that she had driven her vehicle earlier that night was the result of “the threats of Trooper Schroepfer” and “was involuntary.” Upon review of a pre-trial ruling admitting a confession, this court makes an independent determination of whether the confession was voluntary, but we defer to the factual findings of the district court and will overturn those factual findings only if they are clearly erroneous. State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995).

A confession is admissible only if it was freely and voluntarily made. Culombe v. Connecticut, 367 U.S. 568, 599, 81 S. Ct. 1860, 1877 (1961); State v. Wilson, 535 N.W.2d 597, 603 (Minn. 1995). To determine whether a confession was voluntary, courts evaluate the confession in light of the totality of the circumstances to determine whether the police overcame the defendant’s will. State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). Courts are to consider all relevant factors, including the defendant’s age, maturity, intelligence, education, experience, and ability to comprehend; the adequacy of any warnings; the length and legality of any detention; and any deprivation of physical needs or access to friends. Thaggard, 527 N.W.2d at 808.

Appellant argues that her confession was involuntary because Trooper Schroepfer denied her access to counsel and to her husband, failed to inform her of her Miranda rights, and threatened to take her daughter away. As an initial matter, the record does not show that appellant requested counsel or asked to see her husband. Further, the district court found that appellant was not in custody when she admitted to driving and, thus, a Miranda warning was not necessary; appellant does not challenge that finding on appeal.

Appellant relies on the Supreme Court’s decision in Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917 (1963), and the Ninth Circuit’s decision in United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), to argue that Trooper Schroepfer coerced appellant’s confession by telling her that her daughter would be placed with social services if both appellant and her husband were arrested. In Lynumn, the defendant, who was a suspected drug distributor, was told that she could receive ten years’ imprisonment, that her children would be given to strangers, and that she should cooperate with the police if she wished to see her children again. 372 U.S. at 531, 83 S. Ct. at 919. In Tingle, in an effort to obtain the defendant’s confession, the defendant was threatened with a sentence of 25 years or more and was told that she might not see her child if she went to prison. 658 F.2d at 1334.

Although Trooper Schroepfer’s statement regarding the placement of appellant’s daughter was inappropriate, we conclude that it does not rise to the level of coercion evident in Lynumn and Tingle. Trooper Schroepfer did not tell appellant that she should cooperate if she wanted to see her daughter again or threaten her with a lengthy prison term.

The district court found that appellant “is an adult woman with a mature ability to comprehend her circumstances.” The district court further found that the encounter between appellant and Trooper Schroepfer was brief and that appellant was not “deprived of physical needs or meaningfully denied access to friends.” Under these facts, we agree with the district court that Trooper Schroepfer’s statement was not so coercive that it overcame appellant’s will.

Appellant argues finally that any statements she made after her arrest and while at the county jail are “fruit of the poisonous tree” and consequently are inadmissible, because she was arrested without probable cause. Because we have determined that the trooper had a lawful right to enter the bedroom and that appellant’s confession is admissible, we conclude that Trooper Schroepfer had probable cause to arrest appellant.

Affirmed.