State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0102

State of Minnesota,
Respondent,

vs.

Brandyn Lee Hulsebus,
Appellant.

Filed January 22, 2019
Reversed and remanded
Bratvold, Judge

Redwood County District Court
File No. 64-CR-15-702

Keith M. Ellison, Attorney General, St. Paul, Minnesota; and

Jenna M. Peterson, Redwood County Attorney, Rudolph P. Dambeck, Assistant County
Attorney, Redwood Falls, Minnesota (for respondent)

Robert D. Stoneburner, Stoneburner Law Office, Paynesville, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Bratvold, Judge; and
Klaphake, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from a judgment of conviction for fourth-degree driving while
impaired by a controlled substance, appellant argues that the district court erred in failing
to suppress the results of a warrantless chemical test of his urine because (1) the misleading
advisory invalidated his consent under the Fourth Amendment and (2) the reading of the
inaccurate implied-consent advisory violated his right to due process. The state opposes
relief on either claim on several grounds including the good-faith exception to the
exclusionary rule. We reverse and remand to the district court for proceedings consistent
with this opinion and for the court to make necessary factual finding s on both the Fourth
Amendment and due-process issues.
FACTS
At approximately 4:00 p.m. on July 3, 2015, a concerned driver, C.E., called 911
about a truck traveling on highway 71. C.E. informed the 911 dispatcher that he saw the
truck fail to stop at a stop sign, nearly hit a motorcycle, and drive into oncoming traffic
before entering a ditch and returning to the highway. The dispatcher contacted a deputy,
who saw the truck cross over the center and fog lines at around 4:20 p.m.
The deputy stopped the truck and identified the driver as appellant Brandyn Lee
Hulsebus. After observing “what he considered signs of impairment,” the deput y asked
Hulsebus to perform field sobriety tests and a preliminary breath test (PBT). Hulsebus blew
a 0.00 on the PBT, but because of “the driving conduct reported and observed” by the
deputy and Hulsebus’s “performance and demeanor,” the deputy suspected that Hulsebus
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was under the influence of other substances. The deputy placed Hulsebus under arrest for
driving under the influence.
After transporting Hulsebus to jail, the deputy read Hulsebus the implied-consent
advisory and told Hulsebus that “[r]efusal to take a test is a crime.” The deputy asked
Hulsebus if he would like to contact an attorney, and Hulsebus said yes. Hulsebus’s
cellphone was returned to him and he used his phone for 20 minutes and talked to several
people.1 After Hulsebus ended his phone time, the deputy asked Hulsebus if he would take
a urine test. Hulsebus asked, “Yeah, it’s a crime not to, right?” and the deputy stated, “As
I said before, refusal to take a test is a crime.” Hulsebus then provided a urine sample.
The urine sample was sent to the Bureau of Criminal Apprehension (BCA) for
analysis. The BCA report stated that ll-nor-9-carboxy-delta-9-tetrahydrocannabinol (a
metabolite of THC), alprazolam, and alpha-hydroxyalprazolam (a metabolite of
alprazolam) were present at the time of testing. “All three substances detected in the sample
are identified by statute as controlled su bstances.” Hulsebus was charged with fourth-
degree driving while impaired (controlled substance) (“DWI”). Minn. Stat. § 169A.20,
subd. 1(2) (2016).
Before the omnibus hearing, Hulsebus moved to suppress the urine test results and
dismiss the DWI charge, arguing that (1) the deputy lacked probable cause to stop
Hulsebus, (2) Hulsebus’s right to counsel was not vindicated, and (3) under
Trahan/McNeely, police did not have exigent circumstances to support a warrantless urine

1 The district court did not specifically find, and the stipulated facts do not indicate, whether
Hulsebus actually spoke to an attorney.
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search. Additionally, Hulsebus argued that (4) he “ was informed that Minnesota law
required him to submit to testing; further, that refusal to do so would be a crime. Thus, any
‘consent’ to testing by [Hulsebus] was not genuine Fourth Amendment consent, but instead
was forced/coerced.”
At the omnibus hearing, it appears that only issues (1)-(3) were argued.2 In a written
decision on December 9, 2015, the district court denied Hulsebus’s motion to suppress the
urine test results, finding that the deputy had probable cause for the stop, that Hulsebus’s
right to an attorney was vindicated, and that the urine test was permissible as a search
incident to an arrest. The district court did not address the voluntariness of Hulsebus’s
consent.
On December 28, 2015, this court released State v. Thompson, 873 N.W.2d 873
(Minn. App. 2015), aff’d, 886 N.W.2d 224 (Minn. 2016), cert. denied, 137 S. Ct. 1338
(2017), and Hulsebus moved to reopen the omnibus hearing, arguing that, under Thompson,
“the urine test result obtained by law enforcement must be suppressed.” The district court
denied the suppression motion after determining that Thompson was distinguishable
because it was a test-refusal conviction and no searches actually occurred. Additionally,
the district court ruled that the good-faith exception precluded application of the
exclusionary rule.

2 A transcript for the November 23, 2015 hearing is not in the record. After Hulsebus filed
this appeal, he also filed a letter stating that he would “not be ordering or filing a trial
transcript. There was no trial, and thus no transcript exists.” The appellant bears the burden
of providing an adequate record for an appellate court. State v. Heithecker, 395 N.W.2d
382, 383 (Minn. App. 1986). Without a hearing transcript in the record, our review of the
omnibus hearing is necessarily constrained.
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In October 2016, Hulsebus waived his right to a jury trial, stipulated to facts, and
submitted the case for a bench trial under Minn. R. Crim. P. 26.01, subd. 3(a). In a written
order issued October 17, 2016, the district court found Hulsebus guilty of operating a motor
vehicle under the influence of a controlled substance in violation of Minn. Stat. § 169A.20,
subd. 1(2). The district court specifically stated that “[b]ased upon the urine test results,
there is no reasonable doubt that [Hulsebus] had consumed a controlled substance.” The
district court also returned to its decision to deny Hulsebus’s motion to suppress the urine
test results and recognized that Thompson “effectively excluded the urine sample without
another valid exception to the warrant requirement.” The district court then reiterated that
it “f ound the good-faith exception applicable” to the “warrantless collection of
[Hulsebus’s] urine sample.” The district court also determined “that nothing within either
[Trahan or Thompson] . . . affects [its] . . . decision to apply the good-faith exception to the
warrantless collection of [Hulsebus’s] urine.”
After the district court rendered its verdict, but before sentence was imposed,
Hulsebus moved to amend the conclusions of law to conform to Johnson v. Comm’r of
Pub. Safety, 887 N.W.2d 281 (Minn. App. 2016), rev’d, 911 N.W.2d 506 (Minn. 2018), a
decision of this court that was released after the district court’s verdict on November 7,
2016. In his motion to amend, Hulsebus argued that he had “repeatedly contended that the
Minnesota [implied-consent advisory (“ICA”)] violates due process.” Because the deputy
told Hulsebus that he could be charged with refusal to take a urine test, “pursuant to an
ICA which misinformed, misled and effectively coerced [Hulsebus’s] submission, [ the
urine sample] was inadmissible and should have been suppressed when raised as an issue
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at omnibus hearing(s).” The district court denied Hulsebus’s motion to amend after
addressing the argument on its merits and concluding that the good -faith exception was
applicable.
This appeal followed. After briefing but before oral argument, the state requested
and was granted a stay of appeal pending the supreme court’s decision in State v. Phillips,
No. A16-0129, 2016 WL 4497355 (Minn. App. Aug. 29, 2016), review granted (Minn.
Nov. 15, 2016) and appeal dismissed (Minn. May 18, 2017) (dism issed for death of
appellant). The stay was continued pending the supreme court’s final dispositions in
Morehouse v. Comm’r of Pub. Safety, 911 N.W.2d 503 (Minn. 2018) and Johnson v.
Comm’r of Pub. Safety, 911 N.W.2d 506 (Minn. 2018). After the supreme court issued its
decisions in Morehouse and Johnson, this court reinstated the appeal and directed the
parties to submit informal briefs addressing the application of those cases.
D E C I S I O N
In considering Hulsebus’s appeal, we first address his claim that the district court
erred in failing to suppress the urine test results under the Fourth Amendment. Second, we
address whether Hulsebus’s due-process rights were violated by the deputy’s reading of an
inaccurate implied-consent advisory. Third, we consider the state’s contention that the
district court correctly rejected both claims based on the good-faith exception to the
exclusionary rule.
I. Suppression of the urine test results under the Fourth Amendment
Both the United States and Minnesota Constitutions prohibit unreasonable searches
and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. The Minnesota Supreme
7
Court has held that, under the Fourth Amendment, taking a urine sample constitutes a
search. State v. Brooks, 838 N.W.2d 563, 568 (Minn. 2013). Generally, a search conducted
without a warrant is “per se unreasonable,” unless an exception applies. State v. Rohde,
852 N.W.2d 260, 263 (Minn. 2014). If a search is conducted without a warrant or a valid
exception to the warrant requirement, the district court will suppress evidence under the
exclusionary rule, which functions “as a remedy for Fourth Amendment violations.” State
v. Lindquist, 869 N.W.2d 863, 868 (Minn. 2015); see also United States v. Calandra, 414
U.S. 338, 347, 94 S. Ct. 613, 619 (1974) (noting that under the exclusionary rule, “evidence
obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding
against the victim of the illegal search and seizure”).
Here, the state obtained Hulsebus’s urine without a warrant and the onl y relevant
exception is consent. Under the consent exception to the warrant requirement, the state
must demonstrate by a preponderance of the evidence that a defendant “freely and
voluntarily consented” to the search. Brooks, 838 N.W.2d at 568. A district court
determines voluntariness of consent by taking into consideration “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.” State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999)
(quotation omitted). If the district court determines that a defendant’s acquiescence to a
search was coerced, then the defendant’s consent was involuntary and evidence from that
search must be suppressed. Id. Consent is a fact-intensive question, the resolution of which
we review for clear error. State v. Diede, 795 N.W.2d 836, 846-47 (Minn. 2011).
8
Hulsebus argues that he did not voluntarily consent to give a urine sample because
he was coerced by the inaccurate implied-consent advisory. In his suppression motion,
Hulsebus argued that he “was informed that Minnesota law required him to submit to
testing; further, that refusal to do so would be a crime. Thus, any ‘consent’ to testing by
[Hulsebus] was not genuine Fourth Amendment consent, but instead was forced/coerced.”
Here, the district court never discussed or made any specific findings about the
voluntariness of Hulsebus’s consent. In its omnibus order, the district court did not address
Hulsebus’s argument that his consent was coerced by the reading of an implied-consent
advisory and made no findings regarding the totality of the circumstances of Hulsebus ’s
consent. Instead, the district court summarily noted that Hulsebus “agreed to submit a urine
sample.” Similarly, in the stipulated facts, both parties agreed that Hulsebus “consented to
providing a urine sample. His ‘consent’ was pursuant to the reading of the standard
Minnesota Implied Consent Advisory.” T he district court’s written verdict also did not
analyze the voluntariness of Hulsebus’s consent but only noted that Hulsebus “consented
to a urine test.”
The closest the district court came to making any findings about voluntariness was
in its order denying Hulsebus’s motion to amend, where the court wrote that, “[e] ven if
[Hulsebus] can’t be said to have ‘consented’ to the urine test under Brooks, and that by
providing the inaccurate advisory, the state misinformed [Hulsebus] regarding the potential
penalty for refusing to submit to a urine test and violated his right to due process, as
established in McDonnell,” the state would be entitled to the good-faith exception. As
analyzed below, however, the district court erred by relying on the good-faith exception.
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In the absence of any consent findings by the district court, we cannot determine
whether the district court erred in failing to suppress the urine test results. Thus, we reverse
and remand for the district court to determine whether, under the totality of the
circumstances, Hulsebus’s consent to the urine test was voluntary.
II. Due-process violation
Hulsebus argues that his procedural due-process rights were violated because the
deputy read and Hulsebus relied on an inaccurate implied-consent advisory. When law
enforcement reads an implied-consent advisory that “permit[s] police to threaten criminal
charges the state was not authorized to impose,” a defendant may establish a violation of
due process. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991).
Recently, the supreme court held that a due- process violation in this context has three
elements:
(1) the person . . . submitted to a breath, blood, or urine test;
(2) the person prejudicially relied on the implied consent advisory
in deciding to undergo testing; and (3) the implied consent
advisory did not accurately inform the person of the legal
consequences of refusing to submit to the testing.
Johnson v. Comm’r of Pub. Safety, 911 N.W.2d 506, 508-09 (Minn. 2018). All three
elements must be present to demonstrate a due-process violation. Id. at 509. We review
procedural due-process challenges de novo. See Bendorf v. Comm’r of Pub. Safety, 727
N.W.2d 410, 413 (Minn. 2007).
Here, the first element of Johnson is satisfied because Hulsebus submitted to a urine
test. Turning to the second element in Johnson, the state contends that Hulsebus has not
established that he prejudicially relied on the implied-consent advisory. Caselaw informs
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us that an appellant must both claim and establish prejudicial reliance during district court
proceedings. In Morehouse v. Comm’r of Pub. Safety, the supreme court rejected
appellant’s due-process claim because he “did not even claim [in the district court], much
less establish, that he prejudicially relied on the implied consent advisory.” 911 N.W.2d at
505. In Windsor v. Comm’r of Pub. Safety, we refused to remand an appellant’s due-process
claim because he had not, during district court proceedings, presented evidence to establish
prejudicial reliance on an inaccurate implied -consent advisory. ___ N.W.2d ___, ___
(Minn. App. 2018) (reasoning that “Windsor concedes that the record does not co ntain
evidence sufficient to establish such a finding” on prejudicial reliance).
In contrast to the appellants in Windsor and Morehouse, Hulsebus argued to the
district court that the implied-consent advisory violated his right t o due process under
McDonnell and that the advisory “misinformed, misled and effectively coerced
[Hulsebus’s] submission.” Hulsebus also submitted evidence sufficient to determine
whether he prejudicially relied on the implied -consent advisory. Specifically, the district
court, in its omnibus order, stated it had viewed the implied-consent video of the deputy’s
conversation with Hulsebus. As previously summarized, the video includes not only the
implied-consent advisory and Hulsebus’s opportunity to contact an attorney, but also the
deputy’s inquiry whether Hulsebus would consent to urine testing. Hulsebus responded,
“Yeah, it’s a crime not to, right?” The deputy reiterated that it was a crime to not provide
a sample and Hulsebus then provided a urine sample. The district court, however, did not
determine whether Hulsebus prejudicially relied on the implied -consent advisory in
agreeing to submit to testing.
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The third element of Johnson is satisfied because the implied-consent advisory
misinformed Hulsebus about his legal obligations to submit to urine testing and the
consequences of not complying with those obligations. See McDonnell, 473 N.W.2d at 854
(holding that due process “does not permit those who are perceived to speak for the state
to mislead individuals as to either their legal obligations or the penalties they might face
should they fail to satisfy those obligations.”). The state contends that the implied-consent
advisory was accurate when read. We are not persuaded.
Recently, the Minnesota Supreme Court described the Birchfield rule as meaning,
“in the DWI context, the State may not criminalize refusal of a blood or a urine test absent
a search warrant or a showing that a valid exception to the warrant requirement applies.”
Johnson v. State, 916 N.W.2d 674, 679 (Minn. 2018); see also Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016) (concluding that a similar implied-consent advisory given in
2013 was inaccurate in light of the United States Supreme Court’s determination that blood
tests could not be compelled without a warrant or an exception to the warrant requirement);
Thompson, 886 N.W.2d at 233-34 (holding that the state cannot criminalize refusal to
submit to a warrantless urine test). The Minnesota Supreme Court also held that the
Birchfield rule has retroactive effect. See Johnson, 916 N.W.2d at 684 (directing case-by-
case review to determine whether a warrant or an exception to the warrant requirement will
sustain a test-refusal conviction). Based on the retroactive effect of the Birchfield rule, we
conclude that the implied-consent advisory was inaccurate when it was given because it
misinformed Hulsebus that refusal to take a urine test is a crime.
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Without a determination of whether Hulsebus prejudicially relied on the implied-
consent advisory, however, we cannot determine whether the district court erred in denying
his due-process claim. Thus, we reverse and remand for the district court to determine
whether Hulsebus prejudicially relied on the implied-consent advisory.
III. Good-faith exception
The state argues in response to both the Fourth Amendment and due-process claims
that the district court correctly relied on the good-faith exception to the exclusionary rule
and urges this court to hold that the exception “should apply and prevent suppression of
the urine [test] results.”
In State v. Lindquist, the supreme court adopted the good-faith exception to the
exclusionary rule. 869 N.W.2d at 871. The supreme court i nitially “identified deterrence
of police misconduct as the central purpose of the exclusionary rule.” Id. Next, the supreme
court held that the good-faith exception applies only when “law enforcement acts in
objectively reasonable reliance on binding appellate precedent.” Id. The supreme court
specifically “note[d] the narrowness of [the] holding,” which required binding appellate
caselaw that explicitly authorized a police practice. 869 N.W.2d at 876-79 (“[N]othing in
our opinion should be construed as authorizing the application of exceptions we have not
explicitly adopted.”).
First, we consider the application of the good- faith exception to Hulsebus’s Fourth
Amendment claim. The district court reasoned that, because law enforcement conducted a
warrantless search while “acting in objectively reasonable reliance on binding appellate
precedent that did not prohibit searches like the one conducted,” the good-faith exception
13
applied and Hulsebus’s urine sample would not be suppressed. We conclude that the
district court inappropriately applied the good -faith exception after its review of the law
showed that case law “did not prohibit” the search conducted of Hulsebus. The district
court’s reasoning contradicts the supreme court’s decree in Lindquist that binding caselaw
must explicitly authorize a search for the exception to apply. Id. at 876-79. Moreover,
neither the district court nor the state cite any case law authorizing a warrantless urine
search in the absence of any exception to the warrant requirement. Because binding
appellate precedent did not authorize a warrantless search of Hulsebus’s urine absent his
consent, we reject the state’s claim that the good-faith exception applies.
Next, we consider the application of the good -faith exception to Hulsebus’s claim
of a due-process violation. In Lindquist, the supreme court recognized the good-faith
exception solely with regard to the exclusionary rule’s application to violations of Fourth
Amendment rights. Id. at 868-70; see also Davis v. United States, 564 U.S. 229, 236-37
131 S. Ct. 2419, 2426 -28 (2011) (noting that the purpose of the exclusionary rule is to
“deter future Fourth Amendment violations”). Based on existing caselaw, we conclude that
the good -faith exception applies to violations of Fourth Amend ment rights, but has no
application to a claim for a due-process violation. See Thompson, 873 N.W.2d at 880
(noting that the good-faith exception “applies only to Fourth Amendment violations”).
We conclude, therefore, that the district court erred in appl ying the good-faith
exception to both Hulsebus’s Fourth Amendment and due-process claims.
Because we conclude that the district court failed to determine the voluntariness of
Hulsebus’s consent, and that it was error to apply the good-faith exception, we reverse and
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remand the Fourth Amendment issue for the district court to determine the voluntariness
of Hulsebus’s consent. Similarly, because we conclude that Hulsebus claimed a due-
process violation during district court proceedings and presented evidence regarding his
prejudicial reliance on the implied-consent advisory, we reverse and remand for the district
court to determine whether Hulsebus prejudicially relied on the implied-consent advisory
in consenting to provide a urine sample.
Reversed and remanded.