In the Matter of the Welfare of: T. D. B., Juvenile

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0944

In the Matter of the Welfare of: T. D. B., Juvenile

Filed April 3, 2017
Affirmed in part, reversed in part, and remanded
Peterson, Judge

Chisago County District Court
File No. 13-JV-15-142

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janet Reiter, Chisago County Attorney, Aimee S. Cupelli, Assistant County Attorney,
Center City, Minnesota (for respondent state)

John G. Westrick, Westrick & McDowall-Nix, PLLP, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from an adjudication of underage consumption of alcohol, appellant
T.D.B. argues that (1) the result of a preliminary breath test (PBT) was n ot admissible
(a) under Minn. Stat. § 169A.41 (2014) and (b) because no search warrant was obtained
before the PBT was administered, (2) his statement to police should have been suppressed
because he was not given a Miranda warning, and (3) Minn. Stat. § 340A.503 (2014) does
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not apply when the alcohol was consumed in another state. We affirm in part, reverse in
part, and remand.
FACTS
A teacher at the high school that T.D.B. attended told a staff member that T.D.B.
smelled like alcohol. The staff member went to T.D.B.’s classroom and, while talking to
T.D.B., smelled the odor of alcohol coming from him. The staff member took T.D.B. into
the hallway, told him that he smelled like alcohol, and brought him to the school office. In
the office, T.D.B. denied that he drank alcohol that morning but admitted to consuming
alcohol during the weekend. T.D.B. claimed that the smell of alcohol must be coming from
his clothes, which he said were the same clothes that he wore during the weekend. The
assistant principal came to the office, and T.D.B. again admitted that he had been drinking
over the weekend.
The staff member contacted the school resource officer, Police Officer Timothy
Olson, who came to the school office 15 to 20 minutes later. Olson also smelled the odor
of alcohol coming from T.D.B. When asked by Olson, T.D.B. again stated that he had
consumed alcohol over the weekend, and he also stated that the consumption occurred in
Wisconsin. Olson testified that he brought T.D.B. to his office at the school. T.D.B. stood
near the open doorway to Olson’s office. Olson was wearing plain clothes but had on his
gun and badge. No other law-enforcement officers were present.
Olson asked T.D.B. to submit to a PBT , and T.D.B. again stated that he had been
drinking over the weekend. T.D.B. submitted to a PBT without ever indicating that he was
unwilling to do so, and the test result showed an alcohol concentration of .034. T.D.B. was
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17 years old, he never refused to answer any of Olson’s questions, and he did not request
the presence of a parent or an attorney. Olson did not tell T.D.B. that he was not free to
leave or that he was under arrest. T.D.B. was in Olson’s office for less than five minutes,
and the entire interaction between Olson and T.D.B. lasted between five and seven minutes.
T.D.B. was charged with underage consumption of alcohol. The rulings T.D.B. is
challenging in this appeal were made in a pretrial order filed November 20, 2015. The case
was then tried to the court. The trial court declined to reconsider the issues decided in the
pretrial order and based its finding of guilt on the evidence presented at the April 4, 2016
trial. That evidence included the PBT result, and the trial court spec ifically cited the PBT
result as evidence supporting its finding that T.D.B. committed underage consumption.
The district court adjudicated T.D.B. a petty offender and stayed the disposition pending
this appeal.
D E C I S I O N
I.
Statutory Interpretation
An appellate court reviews a question of statutory interpretation de novo. State v.
Rick, 835 N.W.2d 478, 482 (Minn. 2013). If statutory language is clear and unambiguous,
we interpret the statute according to its plain meaning without res orting to statutory
construction. Id. We apply the canons of statutory construction only when a statute is
susceptible to more than one reasonable interpretation. Id.

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The Minnesota Impaired Driving Code states:
Subdivision 1. When a peace officer h as reason to
believe from the manner in which a person is driving,
operating, controlling, or acting upon departure from a motor
vehicle, or has driven, operated, or controlled a motor vehicle,
that the driver may be violating or has violated section 169A.20
(driving while impaired), 169A.31 (alcohol-related school bus
or Head Start bus driving), or 169A.33 (underage drinking and
driving), the officer may require the driver to provide a sample
of the driver’ s breath for a preliminary screening test using a
device approved by the commissioner for this purpose.1

Subd. 2. The results of this preliminary screening test
must be used for the purpose of deciding whether an arrest
should be made and whether to require the tests authorized in
section 169A.51 (chemical tests for intoxication), but must not
be used in any court action except the following: . . .
(5) in a prosecution or juvenile court proceeding
concerning a violation of section 169A.33 (underage drinking
and driving), or 340A.503, subdivision 1, paragraph (a), clause
(2) (underage alcohol consumption)[.]

Minn. Stat. § 169A.41, subds. 1, 2.
Olson testified that he had no reason to believe that T.D.B. had been driving a motor
vehicle. T.D.B. argues that Olson, therefore, was not authorized to request a PBT under
section 169A.41, subdivision 1, and the PBT result was n ot admissible under
section 169A.41, subdivision 2. The district court ruled pretrial that the PBT result was
admissible under Minn. Stat. § 169A.41, subd. 2(5), for use in a juvenile court proceeding
for underage alcohol consumption. We disagree.

1 The pretrial court use d the term “PBT,” rather than “preliminary screening test.” Both
terms refer to a breath test administered using a hand-held device.

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The impaired -driving code provides that, “[u]nless otherwise indicated, the
provisions of [chapter 169A] apply to any person who drives, operates, or is in physical
control of a motor vehicle within this state or on any boundary water of this state.” Minn.
Stat. § 169A.01, subd. 2 (2014). There is no record evidence that T.D.B. drove, operated,
or was in physical control of a motor vehicle. Therefore, unless otherwise indicated, th e
provisions of chapter 169A do not apply to T.D.B. in this proceeding.
Nothing in section 169A.41, subdivision 2(5), indicates that that provision applies
to the result of a PBT administered under circumstances that are not described in section
169A.41, subdivision 1. When subdivision 2 addresses “[t]he results of this preliminary
screening test,” the test that it is referring to is the preliminary screening test described in
subdivision 1. Because Olson did not have reason to believe that T.D.B. drove , operated,
or controlled a motor vehicle, the PBT that Olson administered was not a preliminary
screening test described in subdivision 1. Consequently, the provisions of chapter 169A
do not apply to T.D.B.’s test result, and the district court erred in determining that the test
result was admissible under subdivision 2(5). But this does not necessarily mean that the
PBT result was inadmissible.
Lack of Search Warrant
Based on its determination that the PBT result was admissible under section
169A.41, subdivision 2(5), the pretrial court declined to address T.D.B.’s argument that
the PBT result should have been suppressed because the PBT was a search under the Fourth
Amendment and there were no exigent circumstances that excused the lack of a search
warrant. See State v. Lugo , 887 N.W.2d 476, 486 (Minn. 2016) (stating that an
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unreasonable search is constitutionally prohibited and that a search conducted without a
warrant is presumptively unreasonable). The state argues that a search warrant was not
required because (1) only a reasonable, articulable suspicion of alcohol consumption was
required to support Olson’s administration of the PBT, and the odor of alcohol coming
from T.D.B. satisfied that requirement; and (2) if the PBT was a search for which a warrant
was required, consent is an exception to the warrant requirement, and T.D.B. consented to
the search.
“All evidence obtained during an unlawful search is inadmissible to support a
conviction unless an exception to the exclusionary rule applies.” State v. Barajas , 817
N.W.2d 204, 217 (Minn. App. 2012), review denied (Minn. Oct. 16, 2012). The state does
not claim that an exception to the exclusionary rule applies. Therefore, if T.D.B. is correct
that administration of the PBT was an illegal sea rch, the PBT result was inadmissible.
Because the trial court relied in part on the PBT result to support its finding that T.D.B.
consumed alcohol, the search-warrant issues must be addressed.
When reviewing a constitutional issue that involves mixed questions of law and fact,
this court reviews the ultimate constitutional determination de novo but review s the
underlying factual findings for clear error. State v. Chavarria-Cruz, 784 N.W.2d 355, 363-
64 (Minn. 2010); see also State v. Anderson , 733 N.W.2d 128, 136 (Minn. 2007) (stating
that an appellate court “review[s] de novo a district court’s ruling on constitutional
questions involving searches and seizures”). “[A]t a pretrial suppression hearing the
[district] court acts as finder of facts, deciding for purposes of admissibility which evidence
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to believe and whether the state has met its burden of proof.” State v. Kvam, 336 N.W.2d
525, 528 (Minn. 1983 (quotation omitted).
Because neither the pretrial court nor the trial court made the factual findin gs
necessary for this court to review the search-warrant issues raised by the parties, we remand
the case to the district court to determine whether the PBT was a search and, if it was,
whether a search warrant was required. If the court determines that t he PBT result was
inadmissible, T.D.B. is entitled to a new trial because the district court specifically cited
the PBT result as evidence that supported its finding that T.D.B. consumed alcohol. See
State v. Sanders, 775 N.W.2d 883, 887 (Minn. 2009) (“When the [erroneous admission of
evidence] implicates a constitutional right, a new trial is required unless the State can show
beyond a reasonable doubt that error was harmless. An error is harmless beyond a
reasonable doubt if the jury’s verdict was surel y unattributable to the error.” (citation
omitted)); see also Minn. Stat § 340A.503, subd. 1 (elements of underage consumption).
If the court determines that the PBT result was admissible, it should make findings under
Minn. R. Juv. Delinq. P. 13.09 and c onduct further proceedings in accordance with the
findings.
II.
T.D.B. argues that he was in custody and subjected to interrogation when he made
his statement to Olson and, therefore, the statement should have been suppressed because
he was not given a Miranda warning.
The Fifth Amendment to the United States Constitution
provides that an accused has the right to be free from
compelled self-incrimination. As a safeguard for this right, the
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United States Supreme Court has held that statements made by
a suspect during a “custodial interrogation” are admissible only
if the police provided a Miranda warning before the statements
were made.

State v. Sterling, 834 N.W.2d 162, 168 (Minn. 2013); see U.S. Const. amend. V.; Miranda
v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612 (1966). “Thus, a Miranda warning
is required if a suspect is both in custody and subject to interrogation.” State v. Thompson,
788 N.W.2d 485, 491 (Minn. 2010).
A person is in custody if there has been a “formal arrest or restrai nt on freedom of
movement of the degree associated with a formal arrest.” Minnesota v. Murphy, 465 U.S.
420, 430, 104 S. Ct. 1136, 1144 (1984) (quotation omitted). An appellate court applies an
objective standard to the question whether, “based on all the surrounding circumstances, a
reasonable person under the circumstances would believe that he or she was in police
custody of the degree associated with formal arrest.” Thompson, 788 N.W.2d at 491
(quotation omitted). We apply a clear-error standard of review to a district court’s findings
of fact and a de novo standard of review to a district court’s determination whether, based
on given facts, a person was in custody. State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).
Circumstances indicating that a su spect is in custody include that the police
interviewed the suspect at the police station, that the officer told the suspect that he or she
was the prime suspect, that the officer restrained the suspect’ s freedom, that the suspect
made a significantly incriminating statement, and that several officers were present. State
v. Staats, 658 N.W.2d 207, 211 (Minn. 2003). If the suspect is a juvenile, and if “the child’s
age was known to the officer at the time of police questioning,” a court should include the
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suspect’s young age as a factor in the totality of the circumstances. J.D.B. v. North
Carolina, 564 U.S. 261, 277, 131 S. Ct. 2394, 2406 (2011) . Circumstances to consider
“include the child’ s age, intelligence, education, experience with the law, the warning
given, and the p resence or abs ence of the child’ s parents.” In re Welfare of M.A.K. , 667
N.W.2d 467, 471 (Minn. App. 2003).
T.D.B. argues that the circumstances in this case are similar to those in M.A.K., in
which this court concluded that the juvenile was in custody. See id. at 472. There are
similarities between this case and M.A.K. in that T.D.B. had not previously been in legal
trouble, he was questioned without a parent present, and he was not told that he was free
to leave or that he did not have to answer questions. See id. But there are also significant
differences. In M.A.K., on two occasions, the 14-year-old juvenile was escorted from class
by a uniformed officer and questioned about a theft and burglary, and he was “allowed to
return to class only after police were satisfied with his statements.” Id. at 470, 472. T.D.B.
was three years older than the M.A.K. juvenile, and T.D.B. was subjected to only brief
questioning, with the entire encounter between him and Olson lasting from five to seven
minutes. Other facts indicating that T.D.B. was not in custody are (1) T.D.B.’s admission
to Olson that he had been drinking over the weekend was information that he had already
provided to the school staff member and assistant principal; and (2) the admission was not
significantly incriminating because it did not prove that when T.D.B. was in school on
Monday morning, he was in “the physical condition of having ingested an alcoholic
beverage.” See Minn. Stat. § 340A.503, subd. 1 (elements of underage consumption).
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Under the to tality of the circumstances, the district court made a proper pretrial
ruling that T.D.B. was not in custody when he was questioned by Olson and properly
denied T.D.B.’s motion to suppress his statement to Olson.
III.
The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy
the right to . . . a public trial, by an impartial jury of the State and district wherein the crime
shall have been committed.” U.S. Const. amend. VI. Minn. Stat. § 609.025 (2014) confers
prosecutorial jurisdiction when a person “[c]ommits an offense in who le or in part within
this state.” The underage-consumption statute provides that “[i]t is unlawful for any person
under the age of 21 years to consume any alcoholic beverages.” Minn. Stat. § 340A.503,
subd. 1(a)(2). “‘Consume’ includes the ingestion of an alcoholic beverage, and the
physical condition of having ingested an alcoholic beverage.” Id., subd. 1(c). An
underage-consumption offense may be prosecuted “in the jurisdiction where consumption
occurs or the jurisdiction where evidence of consumption is observed.” Id., subd. 1(b).
T.D.B. argues that section 340A.503 should not be construed to confer jurisdiction
on Minnesota because he consumed alcohol in Wisconsin, and the legislative history shows
that the intent of the statute was to govern jurisdiction among counties within Minnesota.
But canons of statutory construction do not apply when statutory language is clear and
unambiguous, and this court must interpret clear and unambiguous statutory language
according to its plain meaning. Rick, 835 N.W.2d at 482. Under the plain meaning of the
statutory definition of “consume,” Minnesota had jurisdiction to prosecute T.D.B. based
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on evidence that when he was in school on Monday morning, he was in the physical
condition of having ingested alcohol.
Affirmed in part, reversed in part, and remanded.