Connor J. K. Willis, petitioner, Respondent,

This opinion will be unpublished and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
A16-1397

Connor J. K. Willis, petitioner,
Respondent,

vs.

Commissioner of Public Safety,
Appellant.

Filed November 19, 2018
Reversed and remanded
Reyes, Judge

Winona County District Court
File No. 85-CV-16-186

Connor J. K. Willis, Rochester, Minnesota (pro se respondent)

Lori Swanson, Attorney General, Dominic J. Haik, Assistant Atto rney General, St. Paul,
Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Ross, Judge ; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant Commissioner of Public Safety (the commissioner) seeks reversal of the
district court’s rescission of re spondent’s license revocation, arguing that (1) the district
court erred in finding that respondent’s consent to a warrantless blood test was involuntary
and (2) even if the consent wa s invalid, the good-faith excepti on to the exclusionary rule
should prevent the results of the blood test from being excluded. We reverse and remand.

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FACTS
On July 24, 2015, a law enforce ment officer initiated a traffic stop after observing
a vehicle speeding. The officer identified the driver as respo ndent Connor J.K. Willis.
Based on the odor of marijuana emanating from the vehicle and r espondent’s admission
that he had marijuana, the officer conducted a vehicle search and found marijuana and drug
paraphernalia. The officer also observed that respondent’s eye s were bloodshot and
watery, he was fidgety, and could not stand still. Respondent failed a field sobriety test,
and the officer arrested him for driving while impaired.
The officer read respondent an implied-consent advisory that stated it is a crime to
refuse to submit to a blood test. Respondent stated that he understood and did not wish to
speak to an attorney. He agreed t o provide a blood sample, whi ch revealed that he had
cannabis and benzoylecgonine (a metabolite of cocaine) in his system at the time of arrest.
The state charged respondent with fourth-degree driving while i ntoxicated. The
commissioner revoked respondent’s driver’s license.
Respondent petitioned the distri ct court to rescind his driver ’s-license revocation.
He argued that the warrantless blood test violated both his Fou rth Amendment and due-
process rights. The district court found that no exception to the Fourth Amendment warrant
requirement justified the warrantless search of respondent’s bl ood. Specifically, and
relevant to this appeal, the district court found that, under Birchfield v. North Dakota, 136
S. Ct. 2160 (2016), respondent did not freely and voluntarily c onsent to the blood test
because it was obtained under Minnesota’s invalid implied-consent law. The district court
rescinded the revocation.

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The commissioner brought this appeal, arguing, under Fourth Am endment
principles, that respondent validly consented to the blood test and that, even if the consent
was not valid, the results of the blood test should not be excluded based on the good-faith
exception to the exclusionary rule. This court stayed the appe a l p e n d i n g t h e s u p r e m e
court’s review of State v. Phillips, A16-0129 (Minn. App. Aug. 29, 2016), review granted
(Minn. Nov. 15, 2016) and appeal dismissed (Minn. May 18, 2017). This court further
stayed the appeal pending the decisions in Johnson v. Comm’r of Pub. Safety, 911 N.W.2d
506 (Minn. 2018), and Morehouse v. Comm’r of Pub. Safety , 911 N.W.2d 503 (Minn.
2018). Following the supreme court’s decisions in those cases, this court reinstated the
appeal on May 7, 2018, and asked the parties to submit supplemental briefs addressing the
applicability of Johnson a n d Morehouse. The commissioner submitted a supplemental
brief, arguing that the district court’s decision should be rev ersed under Morehouse and
Johnson. Respondent did not file a principal or supplemental brief, nor did he appear for
oral argument.1
D E C I S I O N
I. Respondent’s due-process rights w ere not violated because he di d not
prejudicially rely on the implied-consent advisory.

The district court did not address respondent’s due-process arg ument, nor did the
commissioner raise it in its briefs. We generally do not decid e issues that have not first
been addressed by the district court. State v. Lemmer, 736 N.W.2d 650, 656 (Minn. 2007).

1 If respondent fails to file a brief, the case shall be determi ned on the merits. Minn. R.
Civ. App. P. 142.03.

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However, appellate courts may decide issues as justice requires , Minn. R. Civ. App. P.
103.04, and to serve the interests of judicial economy. In re Estate of Vittorio, 546 N.W.2d
751, 756 (Minn. App. 1996) (c itation omitted). If respondent’s due-process rights were
violated, the Fourth Amendment claim need not be decided. Furt her, in light of the
supreme court’s decisions in Johnson and Morehouse and this court’s request for the parties
to address the applicability of those decisions to this case, we will decide this issue.
This court reviews due-pro cess challenges de novo. Anderson v. Comm’r of Pub.
Safety, 878 N.W.2d 926, 928 (Minn. App. 2016). The supreme court hel d in McDonnell
v. Comm’r of Pub. Safety that an implied-consent advisory that threatened a criminal
consequence the state is not aut horized to impose violated the appellant’s due-process
rights and required rescission of her license revocation. 473 N.W.2d 848, 853-55 (Minn.
1991). In Johnson, the supreme court stated that, under McDonnell, a due-process violation
did not occur solely because a d river had been misled by an ina ccurate implied-consent
a d v i s o r y . 9 1 1 N . W . 2 d a t 5 0 8 . T h e s u p r e m e c o u r t c l a r i f i e d t h a t a l i c e n s e r e v o c a t i o n
violates due process when: (1) the person whose license was revoked submitted to a blood,
breath, or urine test; (2) the person prejudicially relied on the implied-consent advisory in
consenting to the test; and (3) the implied-consent advisory wa s legally inaccurate. Id. at
508-509. In Johnson, the supreme court stated that Johnson’s due-process claim failed on
the first and second elements because Johnson did not submit to testing. Id. at 509.
In Morehouse v. Comm’r of Pub. Safety , issued contemporaneously with Johnson,
the supreme court held that Morehouse, who consented to a blood test, was not entitled to
a rescission of his license revocation under McDonnell. 911 N.W.2d 503, 505 (Minn.

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2018). Morehouse’s argument fa iled on the second prong because “the district court did
n o t f i n d , n o r d i d M o r e h o u s e c l a i m, that he prejudicially relied on the implied-consent
advisory in deciding to submit to the test.” Id. The facts are analogous here. Like
Morehouse, respondent submitted to the blood test and therefore satisfies the first element
of a McDonnell claim. And, as in Morehouse, respondent did not claim, nor did the district
court find, that he prejudicially relied on the implied-consent advisory when he decided to
take the test. Moreover, the record does not contain any facts indicating that respondent
prejudicially relied on the implied-consent advisory. Therefor e, as in Morehouse,
respondent is not entitled to a r escission of his license revoc ation under McDonnell.
Because we conclude that responden t’s due-process rights were n ot violated, the issue of
whether a valid exception under the Fourth Amendment justified the warrantless search is
still relevant.
II. A determination of whether a person’s consent is voluntary requ ires an
analysis of the totality of the circumstances.

The commissioner argues that the district court’s rescission of respondent’s license
revocation must be reversed because the district court erred in determining that
respondent’s consent was involunt ary based solely on the incorr ect implied-consent
advisory. We agree.
Whether an individual voluntar i l y c o n s e n t e d t o a s e a r c h i s a q uestion of fact.
Poeschel v. Comm’r of Pub. Safety , 871 N.W.2d 39, 45 (Minn. App. 2015). A district
court’s finding of voluntary consent is reviewed for clear error. State v. Diede, 795 N.W.2d
836, 846 (Minn. 2011). Findings of fact are clearly erroneous if, based on the evidence,

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we are left with the definite and firm conviction that a mistak e has occurred. Id. at 846-
47.
The United States and Minnesota Constitutions prohibit the unreasonable search and
seizure of persons, houses, papers, and effects. U.S. Const. a mend. IV; Minn. Const. art.
I, § 10. Taking a blood sample constitutes a search under the Fourth Amendment. State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013). Warrantless searches are per se unreasonable,
subject to limited exceptions, one of which is consent. Poeschel v. Comm’r of Pub. Safety,
871 N.W.2d 39, 45 (Minn. App. 2015). For a search to fall unde r the consent exception,
the consent must be given freely and voluntarily. Id. Determining whether consent is
voluntary requires an examination of 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 46 (citing Brooks, 838 N.W.2d at 569). Consent to testing is voluntary unless
the totality of the circumstances demonstrates that the driver consented because his will
was overborne and his capacity for self-determination was critically impaired. Brooks, 838
N.W.2d at 571-72 (finding volunt ary consent based on totality o f circumstances where
officers read implied-consent advisory, gave Brooks an opportun ity to consult with
counsel, and did not subject him to repeated questioning); see also Poeschel, 871 N.W.2d
at 46 (same analysis).
The Supreme Court’s decision in Birchfield further guides our decision here. In that
case, petitioner Beylund consente d to a blood test after being arrested for driving while
intoxicated. Birchfield, 136 S. Ct. at 2186. On the i ssue of whether Beylund voluntar ily

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consented to the test, the Court remanded the matter to the dis trict court to determine the
voluntariness based on the totality of the circumstances. Id.
Here, citing Birchfield, the district court found that the consent exception to the
warrant requirement did not appl y because respondent did not vo luntarily consent to the
blood test, based solely on the implied-consent advisory being incorrect. Because the
district court did not consider the totality of the circumstances, we conclude that the district
court erred in finding that respondent’s consent was involuntary. We reverse and remand
for the district court to consider the validity of consent base d on the totality of the
circumstances present here. If the district court determines o n remand that respondent’s
consent was involuntary, it shou ld then determine whether the Lindquist good-faith
exception prevents the exclusion of the test results.
Reversed and remanded.