This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1766

                          Danika Paige Anastasi, petitioner,
                                    Respondent,

                                         vs.

                           Commissioner of Public Safety,
                                   Appellant.

                             Filed September 15, 2014
                                     Reversed
                                   Larkin, Judge

                            Dakota County District Court
                            File No. 19AV-CV-13-1351


Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., Eagan, Minnesota (for
respondent)

Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for appellant)


      Considered and decided by Cleary, Chief Judge; Larkin, Judge; and Klaphake,

Judge.




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                         UNPUBLISHED OPINION

LARKIN, Judge

         Appellant challenges the district court’s order rescinding the implied-consent

revocation of respondent’s driver’s license. We reverse.

                                         FACTS

         After observing a vehicle cross the fog line on a roadway two times, Minnesota

State Patrol Lieutenant Brian Reu stopped the vehicle and identified the driver as

respondent Danika Paige Anastasi.       Following a brief investigation, Lieutenant Reu

arrested Anastasi for driving under the influence of alcohol. He transported Anastasi to

the Dakota County Jail and read her Minnesota’s implied-consent advisory. Anastasi

indicated that she understood the advisory and declined to contact an attorney.

Lieutenant Reu asked Anastasi if she would take a breath test; she replied, “sure.” The

results of the test indicated that Anastasi’s alcohol concentration was above the legal

limit.

         Based on the results of the breath test, appellant commissioner of public safety

revoked Anastasi’s driver’s license under Minnesota’s implied-consent law. Anastasi

petitioned for judicial review of the license revocation. The district court considered

Anastasi’s arguments that “the United States Supreme Court in Missouri v. McNeely, 

 (2013), rendered Minnesota’s ‘Implied Consent Law’ unconstitutional, the

alcohol concentration test was obtained in violation of her constitutional rights, the test

should be suppressed, and the revocation should be rescinded.”          The district court

ultimately determined that “no unconstitutional condition is imposed by Minnesota’s


                                             2
‘Implied Consent Law’”; Anastasi’s “request to have Minnesota’s ‘Implied Consent Law’

declared unconstitutional [on substantive-due-process grounds] shall be denied”;

Anastasi’s breath test “was not conducted in accordance with the United States and

Minnesota Constitutions”; the commissioner failed “to establish an exigency justifying a

warrantless search”; “the circumstances presented in the record are insufficient in this

case to conclude [that Anastasi] ‘freely and voluntarily’ gave consent to the” breath test;

the warrantless breath test was not justified under the “special needs” doctrine; and the

exclusionary rule applies in this case.

       In sum, the district court concluded that Minnesota’s implied-consent law is “not

unconstitutional,” but that “the search of [Anastasi] was not conducted in accordance

with the United States and Minnesota Constitutions.” The district court therefore ruled

that “[t]he alcohol concentration evidence derived from the unconstitutional search must

therefore be suppressed and the license revocation rescinded.”

       The commissioner appeals.

                                      DECISION

                                            I.

       We begin our analysis with the district court’s determination that Anastasi did not

freely and voluntarily consent to the breath test. The United States and Minnesota

Constitutions prohibit the unreasonable search and seizure of “persons, houses, papers,

and effects.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. The collection of a breath

sample is a search under the Fourth Amendment. Mell v. Comm’r of Pub. Safety, 

 (Minn. App. 2008). Warrantless searches are per se unreasonable,


                                            3
subject to limited exceptions. State v. Othoudt, 

 (Minn. 1992). The

state bears the burden of establishing the existence of an exception to the warrant

requirement. State v. Ture, 

 (Minn. 2001). One such exception is

consent. Schneckloth v. Bustamonte, 

, 

 (1973).

“[T]he ‘clearly erroneous’ standard controls [appellate] review of a district court’s

finding of voluntary consent.” State v. Diede, 

 (Minn. 2011).

       In State v. Brooks, the supreme court reiterated that the “police do not need a

warrant if the subject of the search consents.” 

 (Minn. 2013), cert.

denied, 

 (2014). The supreme court described the consent exception to

the warrant requirement as follows:

                     For a search to fall under the consent exception, the
              State must show by a preponderance of the evidence that the
              defendant freely and voluntarily consented. Whether consent
              is voluntary is determined by examining the totality of the
              circumstances. Consent to search may be implied by action,
              rather than words. And consent can be voluntary even if the
              circumstances of the encounter are uncomfortable for the
              person being questioned. An individual does not consent,
              however, simply by acquiescing to a claim of lawful
              authority.
                     ....
                     . . . This analysis requires that we consider the totality
              of the circumstances, including the nature of the encounter,
              the kind of person the defendant is, and what was said and
              how it was said.

Id. at 568-69 (quotations and citations omitted).

       The supreme court explained that “the nature of the encounter includes how the

police came to suspect [the defendant] was driving under the influence, their request that

he take the chemical tests, which included whether they read him the implied consent


                                             4
advisory, and whether he had the right to consult with an attorney.” Id. at 569. The

supreme court concluded that Brooks voluntarily consented to three searches because he

did not dispute that the police had probable cause to believe that he had been driving

under the influence; he did not “contend that police did not follow the proper procedures

established under the implied consent law”; the police read “the implied consent advisory

before asking him whether he would take all three tests, which makes clear that drivers

have a choice of whether to submit to testing”; the “police gave Brooks access to

telephones to contact his attorney and he spoke to a lawyer”; and “[a]fter consulting with

his attorney, Brooks agreed to take the tests in all three instances.” Id. at 569-70. The

supreme court further noted that, although Brooks was in custody, he “was neither

confronted with repeated police questioning nor was he asked to consent after having

spent days in custody.” Id. at 571.

       The commissioner relies on Brooks and argues that “the totality of the

circumstances demonstrate that [Anastasi’s] agreement to submit to chemical testing was

freely and voluntarily given.” In finding otherwise, the district court reasoned that when

the officer requested consent, Anastasi had already been placed under arrest, transported

in a squad car to a secure location, and informed that if she refused to consent, she would

be charged with a crime. The district court also reasoned that Anastasi’s decision making

was impaired by alcohol and that, although she was offered an opportunity to confer with

an attorney, she did not communicate with an attorney or obtain legal advice regarding

whether to consent.




                                            5
       The district court’s analysis is thorough and supported with citations to caselaw.

However, the district court did not have the benefit of the Minnesota Supreme Court’s

decision in Brooks when it made its decision. And under Brooks, the totality of the

circumstances does not suggest that Anastasi was coerced into providing a breath sample.

       As in Brooks, Anastasi does not dispute that Lieutenant Reu had probable cause to

believe that she had been driving under the influence or that he followed proper

procedures under the implied-consent law. Lieutenant Reu read Anastasi Minnesota’s

implied-consent advisory. Anastasi indicated that she understood it, and she had the

opportunity to contact an attorney. The fact that Anastasi did not contact an attorney is

not dispositive. See id. at 569 (stating that the totality of the circumstances includes

whether the defendant “had the right to consult with an attorney”). Lastly, when Anastasi

agreed to take a breath test, she had not been confronted with repeated police questioning

or held in custody for an unreasonable period of time.

       Anastasi argues that “[w]hile the supreme court in Brooks concluded that there are

extreme circumstances under which a veteran drunk driver would not be intimidated by

the threats inherent in the implied consent process, it by no means suggested that reading

the advisory alone could not overbear the free will of a person arrested for the very first

time.” She asserts that the “evidence shows that [her] submission to the test was far more

likely the result of the trooper’s threat of criminal prosecution” because she was

compliant, had never been arrested before, was impaired by alcohol, was in custody, and

was informed that test refusal is a crime.




                                             6
       But in Brooks, the supreme court rejected the argument that consent is per se

involuntary because of the attendant threat of a criminal charge for test refusal. See id. at

570 (“[A] driver’s decision to agree to take a test is not coerced simply because

Minnesota has attached the penalty of making it a crime to refuse the test.”). Moreover,

the supreme court held that Brooks’s consent was voluntary even though he was impaired

by alcohol, under arrest, and in custody. Id. at 565-66, 572. Although the circumstances

here are distinguishable from those in Brooks in that this appears to have been Anastasi’s

first arrest for driving while impaired and she was compliant with law enforcement, those

distinctions do not suggest that her will was overborne. See id. at 571 (“[N]othing in the

record suggests that Brooks ‘was coerced in the sense that his will had been overborne

and his capacity for self-determination critically impaired.’”).

       Anastasi also argues that the Brooks holding “is directly contrary to binding

United States Supreme Court precedent” and notes that “Brooks has filed a petition for a

writ of certiorari in the United States Supreme Court, asking the Court to correct the

Brooks decision.” But the United States Supreme Court did not grant the writ. Brooks v.

Minn., 

 (2014). And although there may be inconsistencies between

Brooks and prior caselaw regarding consent, this court is nonetheless bound to apply and

follow Brooks because we must follow Minnesota Supreme Court precedent. State v.

M.L.A., 

 (Minn. App. 2010), review denied (Minn. Sept. 21, 2010).

       Under Brooks, Anastasi’s consent was freely and voluntarily given. Because she

agreed to provide a sample of her breath for chemical analysis, a warrant was not

required, and the collection of the sample did not violate the United States or Minnesota


                                              7
Constitutions.   The district court therefore erred by rescinding the implied-consent

revocation of Anastasi’s driver’s license and reversal is appropriate.        Because the

warrantless collection was permissible under the consent exception as applied by the

Minnesota Supreme Court in Brooks, we do not address the commissioner’s alternative

arguments for reversal.

                                            II.

       Anastasi contends that the revocation of her license “had to be rescinded because

the criminal test refusal statute is unconstitutional and therefore the implied consent

advisory read to [her] violated her constitutional right to due process of law and the

doctrine of unconstitutional conditions.”         The commissioner contends that those

arguments are not properly raised in this appeal. We agree.

       “After an appeal has been filed, respondent may obtain review of a judgment or

order entered in the same underlying action that may adversely affect respondent by

filing a notice of related appeal.” Minn. R. Civ. App. P. 106. “To challenge a district

court ruling, a respondent has to file a notice of review, ‘[e]ven if the judgment below is

ultimately in its favor.’”1 State v. Botsford, 

 (Minn. App. 2001)

(quoting City of Ramsey v. Holmberg, 

 (Minn. App. 1996), review

denied (Minn. Aug. 6, 1996)), review denied (Minn. Sept. 11, 2001). “‘If a party fails to

file a notice of review . . . , the issue is not preserved for appeal and a reviewing court


1
  By order dated October 16, 2009, the supreme court amended the rules of civil appellate
procedure, effective January 1, 2010, to replace the “notice of review” with a “notice of
related appeal.” The 2009 comments to that rule state, in part, that “[t]he new procedure
is not intended to change the scope of appellate review.”

                                            8
cannot address it.’” 

 (quoting Holmberg, 

); see also State v. Bren,

 (Minn. App. 2005) (declining to address an issue raised by

respondent on appeal because respondent did not file a notice of review), review denied

(Minn. Dec. 13, 2005).

       In ruling on Anastasi’s petition for judicial review, the district court considered

and rejected her arguments that “the ‘Implied Consent Law’ set forth in Minnesota

Statute[s] §§ 169A.50-.63 creates an ‘unconstitutional condition’” and that “the ‘Implied

Consent Advisory’ violated [her] due process rights under both the United States and

Minnesota Constitutions.” Because Anastasi seeks review of the district court’s adverse

ruling on constitutional arguments that she made in district court and she did not file a

notice of related appeal, the issues are not preserved for appeal, and we do not address

their merits.

       Reversed.




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