This opinion will be unpublished and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
                                    A14-0646

                           Michael Eugene Kraus, petitioner,
                                     Respondent,

                                           vs.

                             Commissioner of Public Safety,
                                      Appellant

                                Filed November 3, 2014
                                       Reversed
                                     Worke, Judge
                            Dissenting, Cleary, Chief Judge

                              Dakota County District Court
                              File No. 19AV-CV-13-1932

David Risk, Halberg Criminal Defense, Bloomington, Minnesota (for respondent)

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

      Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and

Reyes, Judge.

                        UNPUBLISHED OPINION

WORKE, Judge

      The commissioner of public safety challenges the district court’s order rescinding

the revocation of respondent’s driver’s license. Because the totality of the circumstances

demonstrates that respondent consented to the chemical test, we reverse.
                                            FACTS

      On June 22, 2013, at approximately 1:02 a.m., Officer Adam Stier stopped

respondent Michael Eugene Kraus’s vehicle for a traffic or equipment violation. Kraus

exhibited indicia of impairment prompting Officer Stier to conduct a driving-while-

intoxicated (DWI) investigation.

      Officer Stier arrested Kraus for DWI and transported him to the police department.

The officer twice read the Minnesota Implied Consent Advisory to Kraus.             Kraus

indicated that he understood the advisory and wished to consult with an attorney. After

consulting with an attorney, Kraus told the officer that he was ready to proceed with the

process.

      Officer Stier asked Kraus if he would take a breath test. Kraus replied: “I guess I

will take your test, but I am not consenting.” The officer stated: “Duly noted,” and

interpreted Kraus’s statement to mean that he “would take the test”; based on the officer’s

experience, Kraus’s statement was based on advice from an attorney.            Kraus then

willingly walked into the breath-testing room and provided a sample. Officer Stier did

not use any force or threats against Kraus, although, as part of the implied-consent

advisory, the officer had informed Kraus that test refusal is a crime. Kraus’s breath test

revealed an alcohol concentration of .12.

      Appellant commissioner of public safety subsequently revoked Kraus’s driver’s

license. At an implied-consent hearing, Kraus challenged the constitutionality of the

breath test. Kraus testified that he had never before been arrested for DWI. Kraus stated

that his attorney told Kraus that refusing a test constituted a greater crime than a DWI


                                              2
charge. Kraus’s attorney told him that he “should take the test,” but they discussed Kraus

stating: “I will take your test, but I’m not consenting.” Kraus agreed that the officer

“didn’t use any force or threats against” him and that he “freely and voluntarily [took] a

test” because he had no alternative.

       The district court rescinded the revocation of Kraus’s driver’s license, concluding

that, under the totality of the circumstances, Kraus did not knowingly and voluntarily

consent to the search. The district court found that this was Kraus’s first DWI arrest,

Kraus believed that refusal would result in a higher charge than a DWI charge, and he

told the officer that he was submitting to the test, but not consenting. The commissioner’s

appeal followed.

                                       DECISION

       The commissioner argues that the district court erred by concluding that the

commissioner failed to establish that Kraus knowingly and voluntarily consented to the

breath test and waived the warrant requirement under the Fourth Amendment.

       The United States and Minnesota Constitutions prohibit unreasonable searches.

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, subject to limited

exceptions. State v. Othoudt, 

 (Minn. 1992). The commissioner

bears the burden of establishing the existence of an exception to the warrant requirement.

State v. Ture, 

 (Minn. 2001).




                                            3
       One exception to the warrant requirement is consent. State v. Brooks, 

 (Minn. 2013), cert. denied, 

 (2014).

                      For a search to fall under the consent exception, the
              [commissioner] must show by a preponderance of the
              evidence that the [driver] 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.

Id. at 568-69 (quotation and citations omitted). We review the district court’s finding of

whether consent was voluntary under the clearly erroneous standard. State v. Diede, 

 (Minn. 2011).

       The court in Brooks described the totality-of-the-circumstances analysis to include

examination of “the nature of the encounter, the kind of person the defendant is, and what

was said and how it was said.” 

 (quotation omitted). The nature of the

encounter includes what led the officer to suspect that the driver was under the influence,

the officer’s request that the driver submit to a test, including whether the driver was read

the implied-consent advisory, and whether the driver had the opportunity to consult with

an attorney. 

 Because the language of the implied-consent advisory makes clear that a

person has a choice whether to submit to testing, “the fact that someone submits to the

search after being told that he or she can say no to the search supports a finding of

voluntariness.” 

.




                                             4
       The supreme court concluded that Brooks voluntarily consented to three searches

because he did not dispute that the police had probable cause to suspect him of driving

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

outlined under the implied-consent law; the police read him the implied-consent advisory,

which made clear that he had a choice of whether to submit to testing; and he spoke to an

attorney before agreeing to submit to testing. 

. The court further noted that

Brooks was not subject to repeated police questioning and did not spend days in custody

before consenting. 

. The record before the supreme court persuaded them that

Brooks “was [not] coerced in the sense that his will had been overborne and his capacity

for self-determination critically impaired.” 

       As in Brooks, Kraus does not dispute that the officer had probable cause to suspect

that he was driving under the influence. Nor does Kraus contend that the officer failed to

follow the proper procedure of the implied-consent law. Officer Stier twice read the

implied-consent advisory to Kraus, and Kraus indicated that he understood the advisory

and wished to consult with an attorney. After consulting with an attorney, Kraus agreed

to submit to testing. Further, Kraus was aware, because he was read the implied-consent

advisory, that he had a choice whether to submit to testing. Finally, before Kraus agreed

to take a breath test, he had not been confronted with repeated police questioning or held

in custody for an unreasonable period of time. Kraus testified that the officer “didn’t use

any force or threats” and that he “freely and voluntarily” took the test. Thus, similar to

Brooks, nothing in the record before us suggests that Kraus’s will was overborne or his

capacity for self-determination critically impaired when he made the testing decision.


                                              5
See Schneckloth v. Bustamonte, 

, 

 (1973)

(stating that consent is coerced when a suspect’s “will has been overborne and his

capacity for self-determination critically impaired”).

       While Kraus argues that he had no alternative other than to take the test, the

supreme court rejected the argument that consent is per se involuntary because of the

attendant threat of a criminal charge for test refusal. Brooks, 

 (“[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.”). Further, while the implied-

consent advisory includes language that test refusal is a crime, Kraus’s attorney advised

Kraus that test refusal is a greater crime than a DWI charge. Thus, Kraus’s belief that he

had to take a breath test or face a greater criminal charge was the result of his attorney’s

advice.

       Kraus also argues that his consent was not voluntary because he clearly told the

officer that he was not consenting. “‘Consent’ that is the product of official intimidation

or harassment is not consent at all.” Florida v. Bostick, 

, 

 (1991). But

              involuntariness of a consent to a police request is not to be
              inferred simply because the circumstances of the encounter
              are uncomfortable for the person being questioned. Rather, it
              is at the point when an encounter becomes coercive, when the
              right to say no to a search is compromised by a show of
              official authority, that the Fourth Amendment intervenes.




                                             6
State v. Dezso, 

 (Minn. 1994); see Schneckloth, 

, 

 (describing a coercive encounter occurring when “will has been overborne

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

       The record does not show that Kraus’s right to refuse testing was compromised by

a show of official authority or that his will was overborne and his capacity for self-

determination was critically impaired. When asked to submit to testing, Kraus replied: “I

guess I will take your test, but I am not consenting.” Officer Stier replied: “Duly noted,”

and interpreted this to mean that Kraus “would take the test.” Kraus then willingly

walked into the breath-testing room and provided a sample. Kraus’s words, “I guess I

will take your test,” followed by his action of freely walking into the breath-testing room

and taking a test support a determination that his consent was voluntary. See Brooks, 

 (stating that consent may be implied by action). The dissent suggests

that we fail to consider “what was said and how it was said” because Kraus’s statement

“‘I am not consenting’ [] directly contradicted his earlier statement ‘I guess I will take

your test.’” We considered this contradiction and noted that it was followed by Kraus’s

next contradiction of freely walking into the breath-testing room and voluntarily

submitting to the test. See 

       Just as we have concluded that a driver refused testing by his actions even after

verbally consenting, Kraus’s actions here showed that he voluntarily consented to the

test. See Cole v. Comm’r of Pub. Safety, 

 (Minn. App. 1995)

(holding that driver “constructively refused” to submit to a test by failing to provide

adequate breath samples). Because consent can be implied by action rather than words


                                               7
(or in addition to words), the district court’s finding that Kraus’s consent to testing was

not voluntary is clearly erroneous.     See Diede, 

 (stating that

findings of facts are clearly erroneous when, “on the entire evidence, [the appellate court

is] left with the definite and firm conviction that a mistake occurred”).

       Kraus also argues that he is unlike the driver in Brooks, who had more than one

felony DWI incident, because he has no previous DWI arrest. But that is only one factor

in the totality-of-the-circumstances analysis. Kraus also claims that because he served in

the Navy for 21 years he follows orders and respects authority. He asserts that when he

was told test refusal is a crime, he followed orders and submitted to the test. Kraus

indeed followed orders: he followed his attorney’s advice to the last detail, by parroting

his attorney’s words—that he would submit to the test but was not consenting. He

followed his attorney’s advice to take a test rather than refuse, because a refusal would

result in a greater charge. See Brooks, 

 (stating that the fact that

Brooks consulted with counsel, who functioned “as an objective advisor who . . .

explain[ed] the alternative choices,” before agreeing to take a test reinforced the

conclusion that his consent was not illegally coerced).

       The dissent takes exception to our analysis of this single factor, asserting that

Kraus is a very different “kind of person” from Brooks. But Brooks does not provide a

thorough analysis of this factor. The facts available about the type of person Brooks is

related to the offenses with which Brooks was charged; there were no tangential

considerations of Brooks’s character. Thus, while Kraus testified about his navy-veteran

background, the officer was not aware of Kraus’s history when he stopped him for DWI.


                                              8
Brooks does not suggest, and we cannot expect, officers to thoroughly investigate each

offender’s background during the implied-consent process. Additionally, like Kraus,

many first-time DWI offenders are a very different “kind of person” than Brooks, who

was facing charges stemming from three separate DWI incidents.             See 

(consolidating three separate driving incidents that took place during a six-month period).

       We cannot distinguish this case from Brooks merely because Kraus used the words

“I am not consenting.” Kraus uttered those words between stating, “I will take your test,”

and willingly taking the test. Kraus had a choice between taking a test and not taking a

test. See 

 (stating that a person has a choice whether to submit to testing, and

“the fact that someone submits to the search after being told that he or she can say no to

the search supports a finding of voluntariness”). An affirmance would give drivers a

supposed “free pass” to avoid consent by using the magic words “I will submit (or

acquiesce) to the test but I do not consent.” An individual either consents or refuses; for

better or worse, an individual cannot have it both ways.

       Kraus took a test and there is no indication that he took the test because he was

coerced. The record does not show that Kraus’s “right to say no to a search [wa]s

compromised by a show of official authority.” See Dezso, 

. Nor does

the record show that Kraus’s will was “overborne and his capacity for self-determination

critically impaired.”   See Schneckloth, 

, 

.           The

commissioner had to show by only a “preponderance of the evidence” that Kraus freely

and voluntarily consented; the totality of the circumstances satisfies the commissioner’s

burden. See Brooks, 

. The officer was not required to obtain a


                                             9
warrant prior to the test, and the test was not an unreasonable search. We therefore

reverse the district court’s decision to rescind the revocation of Kraus’s driver’s license.

       Reversed.




                                             10
CLEARY, Chief Judge (dissenting)

       I respectfully dissent from the majority’s opinion. I would affirm the district

court’s order holding that respondent did not knowingly and voluntarily consent to the

search and did not waive the Fourth Amendment requirement that law enforcement must

obtain a warrant prior to a search.

       As the majority notes, the supreme court held in State v. Brooks that:

                      For a search to fall under the consent exception, the
              [commissioner] must show by a preponderance of the
              evidence that the [driver] freely and voluntarily consented.
              Whether consent is voluntary is determined by examining the
              totality of the circumstances . . . An individual does not
              consent, however, simply by acquiescing to a claim of lawful
              authority.

 (Minn. 2013) (emphasis added) (quotation marks and citations

omitted), cert. denied, 

 (2014).

       State v. Brooks further held that an analysis of “totality of the circumstances”

includes three prongs: “the nature of the encounter, the kind of person the defendant is,

and what was said and how it was said.” Id. at 569.

       In my opinion, the majority’s analysis would render the second and third prongs of

the Brooks test relatively meaningless.      The second prong, what “kind of person

defendant is,” certainly includes the extent of the defendant’s exposure to the criminal

justice system. Brooks, for example, was a recidivist with substantial experience with the

implied consent advisory process. Id. at 565-66. Here the court fails to give weight to

the fact that respondent is a very different “kind of person” from Brooks. Respondent

testified that he was a Navy veteran who had served for 21 years as a fighter pilot and


                                           D-1
chief pilot for advanced jet training, as well as an instructor and that this was his first

arrest and his first exposure to the implied consent advisory process. This difference in

experience could significantly affect his ability to understand which actions and words

constitute “voluntary consent” and further influence his “acquiescing to a claim of lawful

authority.”

       The majority also fails to consider the import of the third prong of Brooks, “what

was said and how it was said.” Id. at 569. The words exchanged between Officer Stier

and respondent left unclear whether respondent had consented. When respondent stated,

“I am not consenting,” he directly contradicted his earlier statement, “I guess I will take

your test.” In addition, the words used leave the impression that respondent intended to

avoid—and indeed, thought he had avoided—the legal implications of “consent” by

specifically stating that he was “not consenting.” In other words, “what was said and

how it was said” left a readily apparent ambiguity as to whether consent had been given,

and indicated that respondent may have had an inaccurate understanding of which actions

and words constitute voluntary consent.

       In such ambiguous situations, it should be incumbent upon the law enforcement

officer to clarify whether consent has actually been given. If consent has been given, a

sample should be taken of the individual’s breath. If consent has not been given or

remains equivocal, then either a warrant should be obtained or the matter should be

treated as a test refusal. The state bears the burden of establishing voluntary consent as

an exception to the Fourth Amendment warrant requirement. State v. Johnson, 

 (Minn. App. 2004). Where we allow law enforcement officers to


                                           D-2
simply assume that voluntary consent has been given (in this case, the officer did not

even bother to note the conversation in the police report, although the audio recording

confirmed the language used by appellant), without requiring them to verbally clarify

major ambiguities apparent under the circumstances, we relieve the state of a substantial

portion of its burden to establish voluntary consent.

       The district court analyzed whether consent had been given freely and voluntarily

under the test established in Brooks. We must affirm the district court’s application of

the Brooks test unless the district court’s analysis was clearly erroneous. See State v.

Diede, 

 (Minn. 2011). Because I believe that the district court was

not clearly erroneous in concluding that the state had failed to establish respondent’s

voluntary consent under the Brooks totality of the circumstances test, I would affirm.




                                            D-3