This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1454
State of Minnesota,
Respondent,
vs.
Travis Richard Otto,
Appellant.
Filed July 18, 2016
Affirmed in part, reversed in part, and remanded
Schellhas, Judge
Sherburne County District Court
File No. 71-CR-13-1076
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, Dawn R. Nyhus, Assistant County
Attorney, Elk River, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant challenges his convictions of first-degree controlled-substance crime and
fourth-degree driving while impaired, arguing that law enforcement detained him without
reasonable, articulable suspicion; impermissibly expanded the scope of the investigatory
detention; and coerced his consent to a warrantless test of his blood. We affirm in part,
reverse in part, and remand.
FACTS
While driving near Big Lake at about eleven o’clock on a sunny, dry morning in
August 2013, appellant Travis Richard Otto left Highway 10, sheared off a utility pole at
its base, and downed at least one power line. The crash caused the air bags in Otto’s car to
deploy and caused extensive front-end damage to the car, including engine-fluid leaks.1
But Otto was able to drive the car about a quarter-mile to a tavern parking lot. At least one
witness to the crash called police.
Big Lake Police Officer Cindy Finch located Otto’s car in the lot and saw Otto
getting out of his car. Officer Finch spoke with Otto, who declined medical attention and
told Officer Finch about the crash. A few minutes later, State Patrol Trooper Troy Morrell
arrived, spoke with Officer Finch, and took over the investigation while Officer Finch
remained at the scene. Trooper Morrell questioned Otto about the crash and observed his
demeanor and behavior. As Otto conversed with Trooper Morrell, he moved toward his car
multiple times; Trooper Morrell asked Otto two or three times to “come away” from his
car and finally directed him to “come closer” to Trooper Morrell’s squad car.
Trooper Morrell asked Otto, “Is there anything on you that I need to be aware of?”
Otto responded that he had his cell phone on him. Trooper Morrell asked Otto whether he
1
The record is unclear regarding Otto’s ownership of the car, but we refer to the car as
“Otto’s car.”
2
had “anything else in [his] pants pockets or otherwise on [his] person that [Trooper
Morrell] need[ed] to be aware of,” and Trooper Morrell saw “a bulky-type object” in Otto’s
pants pocket and asked Otto about it. Otto answered, “Look, I have drugs.” Trooper Morrell
handcuffed Otto and removed the object—a zippered pouch—from Otto’s pocket. Trooper
Morrell opened the pouch and found what he believed to be methamphetamine; he found
more suspected methamphetamine and a roll of cash in Otto’s other pants pocket. Trooper
Morrell then told Otto that he was under arrest, conducted a pat-down search of Otto, and
put Otto in the back of Trooper Morrell’s squad car. Neither Trooper Morrell nor Officer
Finch gave Otto a Miranda warning.
While Otto sat in the squad car, Trooper Morrell and Officer Finch searched Otto’s
car. At one point, Otto asked Trooper Morrell to call his father to let him know that he had
been arrested and stated that he would cooperate. Trooper Morrell asked him what he meant
by “cooperate,” and Otto said that he would tell Trooper Morrell where he was coming
from and where he was headed. At a later point, Otto called out and complained that the
squad car was hot and that he was sweating. Trooper Morrell turned up the air conditioning.
Eventually, while the search of Otto’s car continued, Otto complained of chest pains,
saying that his chest hit the steering wheel during the crash, and he offered to tell Trooper
Morrell “where everything [wa]s.” Trooper Morrell called for an ambulance.
Before the ambulance arrived, Otto told Trooper Morrell that he had two children,
had been sober for seven years until December 2012, had lost his job, had relapsed with
drugs, and was addicted. Trooper Morrell asked Otto when he had used drugs, and Otto
responded that he had used drugs around nine or ten o’clock on the previous night. When
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the ambulance arrived, medical personnel spoke with Otto as he sat in the squad car. With
Trooper Morrell nearby, Otto told medical personnel that he used methamphetamine
“yesterday.” Medical personnel took Otto to a hospital, where Trooper Morrell later read
the standard implied-consent advisory to Otto. Otto declined to consult with an attorney,
agreed to submit to a blood test, and submitted to the test, which revealed the presence of
methamphetamine in Otto’s blood.
Respondent State of Minnesota charged Otto with first-degree controlled-substance
crime and fourth-degree driving while impaired (DWI). Otto moved to suppress his
inculpatory statements and “any and all evidence taken as a result of search and seizure.”
The district court conducted a contested omnibus hearing at which Officer Finch, Trooper
Morrell, and Otto testified. The court suppressed Otto’s inculpatory statements to Trooper
Morrell, declined to suppress Otto’s inculpatory statements to medical personnel, declined
to suppress the physical evidence, and “reopen[ed] the hearing” to receive evidence and
argument regarding the warrantless blood test.
The parties agreed to submit the blood-test issue to the district court on the basis of
documentary evidence and any written submissions. The court declined to suppress the
blood-test evidence. Otto then waived his jury and trial rights and stipulated to aspects of
the state’s case, and the parties submitted the case to the court under Minn. R. Crim. P.
26.01, subd. 4. The court found Otto guilty as charged and sentenced him to 135 months’
imprisonment for first-degree controlled-substance crime and 90 days’ concurrent
confinement for fourth-degree DWI.
This appeal follows.
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DECISION
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
the district court’s factual findings are reviewed under a clearly erroneous standard. But
legal determinations, such as whether there was a seizure and, if so, whether that seizure
was unreasonable, are reviewed de novo.” State v. Eichers, 853 N.W.2d 114, 118 (Minn.
2014) (citation omitted), cert. denied, 135 S. Ct. 1557 (2015). “[Appellate courts] accept
the district court’s factual findings unless they are clearly erroneous.” State v. Smith, 814
N.W.2d 346, 350 (Minn. 2012). “Findings of fact are clearly erroneous if, on the entire
evidence, [the reviewing court is] left with the definite and firm conviction that a mistake
occurred.” State v. Diede, 795 N.W.2d 836, 846–47 (Minn. 2011). “Deference must be
given to the district court’s credibility determinations.” State v. Klamar, 823 N.W.2d 687,
691 (Minn. App. 2012). “We will not reverse a correct decision by the district court simply
because we disagree with its reasoning.” State v. Eichers, 840 N.W.2d 210, 216 (Minn.
App. 2013), aff’d on other grounds, 853 N.W.2d 114 (Minn. 2014).
Investigatory detention
Otto challenges the district court’s conclusion that his investigatory detention was
constitutional, first arguing that law enforcement did not have reasonable, articulable
suspicion to stop his car. This argument is misguided because law enforcement did not stop
Otto’s car: it already was parked in the tavern’s lot when Officer Finch located it,
approached Otto, and asked him about the crash, and it still was parked when Trooper
Morrell arrived on the scene and began questioning him about the crash.
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“[C]ourts generally have held that it does not by itself constitute a seizure for an
officer to simply walk up and talk to a person standing in a public place or to a driver sitting
in an already stopped car.” State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980); see
also Klamar, 823 N.W.2d at 693 (concluding that trooper’s approach of already-stopped
vehicle to check welfare of occupants was not seizure). Here, having been alerted to a
serious crash involving Otto’s car, Officer Finch and Trooper Morrell were entitled to
approach the car in a commercial parking lot to check the welfare of its occupants and to
offer help if necessary. Cf. Kozak v. Comm’r of Pub. Safety, 359 N.W.2d 625, 628 (Minn.
App. 1984) (stating that “an officer has not only the right but a duty to make a reasonable
investigation of vehicles parked along roadways to offer such assistance as might be needed
and to inquire into the physical condition of persons in vehicles” (citing Vohnoutka, 292
N.W.2d at 756)). Because Otto was not seized by Officer Finch’s or Trooper Morrell’s
initial contact with him, we need not consider whether that contact was justified by
reasonable, articulable suspicion of criminal activity.
But we conclude that Trooper Morrell’s subsequent verbal attempts to restrict Otto’s
physical movements in the parking lot constituted an investigatory detention—i.e., a
temporary seizure of Otto’s person. See State v. Hanson, 504 N.W.2d 219, 220 (Minn.
1993) (stating that a seizure occurs when, “looking at all of the facts, the conduct of the
police would communicate to a reasonable person in the defendant’s physical
circumstances an attempt by the police to capture or seize or otherwise to significantly
intrude on the person’s freedom of movement”); see also Klamar, 823 N.W.2d at 693
(concluding, in case involving welfare check, that seizure did not occur until trooper
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ordered driver to exit vehicle and approach trooper’s vehicle). We therefore consider
whether reasonable, articulable suspicion of criminal activity justified that seizure. See
Smith, 814 N.W.2d at 350 (“[Appellate courts] review de novo a district court’s
determination of reasonable suspicion of illegal activity.”).
Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), a police officer may
temporarily seize a person to investigate that person for
criminal wrongdoing if the officer reasonably suspects that
person of criminal activity. Reasonable suspicion must be
based on specific, articulable facts that allow the officer to be
able to articulate at the omnibus hearing that he or she had a
particularized and objective basis for suspecting the seized
person of criminal activity. . . . A hunch, without additional
objectively articulable facts, cannot provide the basis for an
investigatory stop.
Diede, 795 N.W.2d at 842–43 (quotations and citations omitted). In this case, the district
court found that
[b]ased on [Trooper Morrell’s] experience, [Otto]’s
explanation regarding . . . why he hit a [utility] pole appeared
inconsistent and suggested [Otto] may have been under the
influence. Further, [Otto]’s body movement including moving
to and from [his car] during his discussions with Officer Finch
and Trooper Morrell indicated to Trooper Morrell, based on his
experience, that [Otto] may be concerned about law
enforcement discovering contraband in [his car]. In addition,
[Otto] appeared nervous and was slow to react.
These findings are supported by Trooper Morrell’s testimony, which the court expressly
found credible. Otto does not specifically challenge the court’s findings but points to
portions of Trooper Morrell’s testimony that purportedly show that Trooper Morrell acted
on a bare “hunch” rather than on the observable facts identified in other portions of the
testimony.
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“To be reasonable, the basis of the officer’s suspicion must satisfy an objective,
totality-of-the-circumstances test.” Smith, 814 N.W.2d at 351; see also State v. Jackson,
742 N.W.2d 163, 179 (Minn. 2007) (“An individual officer’s subjective state of mind is
not the relevant consideration.”). The test is “whether the facts available to the officer at
the moment of the seizure would warrant a man of reasonable caution in the belief that the
action taken was appropriate.” Smith, 814 N.W.2d at 351−52 (quotations omitted). Here,
Trooper Morrell had about two decades of law-enforcement experience, which was “heavy
into DWI enforcement” and included “hundreds” of impaired-driving investigations, and
he had training regarding standardized field-sobriety testing and indicia of impairment by
alcohol or controlled substances. He also had conducted investigations, numbering
“possibly in the hundreds,” that led to charges of controlled-substance crime. Regardless
of Trooper Morrell’s subjective state of mind, Otto’s demeanor and behavior would have
led an officer with Trooper Morrell’s training and experience to reasonably suspect Otto
of criminal activity related to controlled substances. We conclude that reasonable,
articulable suspicion supported Otto’s investigatory detention.
Otto also argues that Trooper Morrell’s questions regarding items on Otto’s person
were equivalent to a Terry frisk that lacked the required officer-safety justification or
otherwise impermissibly expanded the scope of the investigatory detention. Otto is correct
that a Terry frisk is justified by a reasonable, articulable suspicion that the suspect is armed
and dangerous. State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014). But he offers no
support for his conflation of a Terry frisk—that is, “a carefully limited search of the outer
clothing to discover weapons which might be used against the officer,” State v. Wiggins,
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788 N.W.2d 509, 513 (Minn. App. 2010) (quotation omitted), review denied (Minn.
Nov. 23, 2010)—and open-ended verbal questions regarding items on a suspect’s person.
Because Trooper Morrell’s questions were a reasonable and incremental step in his
investigation of suspected criminal activity related to controlled substances, and regardless
of Trooper Morrell’s subjective motivation for asking the questions, the questions did not
impermissibly expand the scope of Otto’s investigatory detention.
Warrantless blood test
Otto challenges the warrantless test of his blood, acknowledging that he verbally
and physically consented to the test but asserting that Trooper Morrell coerced his consent
by “false[ly] threat[ening]” him that withholding consent is a crime and by asking him for
consent “in the radiology room of a hospital while Otto was receiving treatment for injuries
sustained during a major traffic accident.” Otto also notes that he did not consult with an
attorney before giving consent and claims a causal link between Trooper Morrell’s
elicitation of inadmissible inculpatory statements from Otto regarding his drug use and
Trooper Morrell’s later success in obtaining Otto’s consent to a test of his blood for drugs.
Taking [a] blood . . . sample[] from someone constitutes a
“search” under the Fourth Amendment. But police do not need
a warrant if the subject of the search consents.
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.
State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013) (citations omitted). The voluntariness
of a defendant’s consent to chemical testing is assessed under “the totality of the
circumstances, including the nature of the encounter, the kind of person the defendant is,
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and what was said and how it was said.” Id. at 569 (quotation omitted). “The question
whether a consent to a search was in fact ‘voluntary’ or was the product of duress or
coercion, express or implied, is a question of fact.” Diede, 795 N.W.2d at 846 (quotation
omitted).
Here, the district court considered Otto’s arguments and found that “the taking of
[Otto]’s blood was consensual as part of the Implied Consent statutory scheme.” In an
opinion issued after the district court’s ruling, the United States Supreme Court held that a
state may not constitutionally criminalize a driver’s refusal to submit to a warrantless blood
test, even where the driver was arrested lawfully for DWI, absent case-specific exigent
circumstances justifying the state’s failure to seek a search warrant. Birchfield v. North
Dakota, No. 14-1468, 2016 WL 3434398, at *12, *25–27 (U.S. June 23, 2016). The
implied-consent advisory that Trooper Morrell read to Otto therefore was partially
inaccurate insofar as it conveyed to Otto that withholding consent to a warrantless blood
test is a crime. See id. at *27 (noting that defendant “submitted to a blood test after police
told him that the law required his submission,” labeling as “erroneous” state court’s
assumption that state permissibly could compel warrantless blood test, and characterizing
as “partial[ly] inaccura[te]” advisory given to defendant).
The partial inaccuracy of the implied-consent advisory is one circumstance in the
totality of the circumstances faced by Otto when he agreed to take a blood test. See id.
(noting that state court “held that [defendant]’s consent was voluntary on the erroneous
assumption that the State could permissibly compel both blood and breath tests,” reiterating
that “voluntariness of consent to a search must be determined from the totality of all the
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circumstances,” and directing state court “to reevaluate [defendant]’s consent given the
partial inaccuracy of the officer’s advisory” (quotation omitted)); cf. Brooks, 838 N.W.2d
at 569 (stating that the totality of the circumstances includes “what was said and how it
was said” (quotation omitted)). Yet the partial inaccuracy of the advisory was not
considered by the district court, which lacked the guidance provided by the recent
Birchfield opinion.
We therefore reverse the district court’s judgment as to Otto’s DWI conviction and
sentence, and we remand to the district court to reassess the voluntariness of Otto’s consent
to the blood test in light of all the relevant circumstances, including the partial inaccuracy
of the advisory, and to consider the applicability, if any, of the good-faith exception to the
exclusionary rule. See Birchfield, 2016 WL 3434398, at *27 & n.9 (vacating judgment of
state court, remanding for state court “to reevaluate [defendant]’s consent given the partial
inaccuracy of the officer’s advisory,” and noting that state court “will have to address
whether the evidence obtained in the search must be suppressed” if state court finds on
remand that defendant did not voluntarily consent to blood test).
Affirmed in part, reversed in part, and remanded.
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