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This opinion will be unpublished and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
A17-0913

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

Filed January 22, 2018
Affirmed in part, reversed in part, and remanded
Bratvold, 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,
Beth A. Beaman, Assistant County Attor ney, Megan E. Elkin (certified student attorney),
Center City, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this second appeal from a juvenile petty offender adjudication, appellant argues
that (1) the juvenile court lacked jurisdiction to issue the final order because the clerk of
the appellate courts had not yet entered judgment in his first appeal when the juvenile court
entered the order that is on review in this appeal; (2) the juvenile court erred by denying
his motion to dismiss because the court lost jurisdiction after he turned 19 years old; and
2
(3) the preliminary breath test (PBT) administered by the police officer at appellant’s high
school was an illegal search in violation of appellant’s constitutional rights. We affirm in
part, reverse in part, and remand.
FACTS
On May 4, 2015, a high-school teacher in Chisago County informed Ryan Minke,
the school’s “behavior tech,” that appellant T.D.B. smelled of alcohol. T.D.B. was 17 years
old. Minke went to T.D.B.’s classroom and, while talking to T.D.B., smelled alcohol
coming from him. Minke brought T.D.B. to his office. T.D.B. told Minke that he had
consumed alcohol at a party over the weekend and had last consumed alcohol early Sunday
morning. T.D.B. claimed the alcohol odor was coming from his clothes, which were the
same clothes he had worn over the weekend.
Minke, with the authorization of Assistant Principal Glen Stevens, asked T.D.B. to
take a breath test usually used at school dances. Based on the test results, 1 Minke and
Stevens decided to impose a one-day suspension, informed T.D.B., and called T.D.B.’s
father to pick him up. 2 Stevens explained at trial that the suspension was appropriate
because students under the influence of alcohol pose a “safety and security issue.”

1 In the juvenile court’s order finding T.D.B. guilty beyond a reasonable doubt, it
disregarded the school-administered breath test because it determined that there was
“insufficient foundation for its use or operation.” Minke was asked when the testing device
was last calibrated, and he testified that he “ha[d] no idea. . . . I don’t know how often they
get calibrated.”

2 During this phone call, T.D.B.’s father told Minke that no one was to question T.D.B.,
nor was he to take a PBT.
3
Next, Minke called the school resource police officer, Tim Olson, and told him that
they suspect ed T.D.B. of consuming alcohol. Minke testified that at this point, they
“referr[ed]” T.D.B. to Officer Olson. Olson came to the school about 15 to 20 minutes later
and joined Minke, Stevens, and T.D.B. in the office. Olson was wearing plain clothes, but
had his gun and badge. Olson detected an “odor of alcohol” coming from T.D.B. Olson
then performed a “horizontal gaze nystagmus test” on T.D.B., which indicated that T.D.B.
“had been consuming alcohol or had alcohol on him.”
Olson brought T.D.B. to his office at the school; Stevens and Minke did not
accompany them . T.D.B. told Olson that he had been drinking in Wisconsin over the
weekend. Olson asked T.D.B. to take a PBT, T.D.B. did, and he received a result of 0.034.
Olson testified that he did not obtain a warrant, but acknowledged he could have. The entire
interaction between T.D.B. and Olson lasted about five to seven minutes.
T.D.B. was cited for underage consumption of alcohol in violation of Minn. Stat.
§ 340A.503, subd. 1(a)(2) (2014) . The juvenile court denied T.D.B.’s motion to suppress
the PBT result. The court determined that the PBT result was admissible under Minn. Stat.
§ 169A.41, subd. 2(5) (2014), because, contrary to T.D.B.’s assertion, that statute was not
limited to traffic stops. 3 In a bench trial, the court found T.D.B. guilty and adjudicated him
a juvenile petty offender.

3 Minn. Stat. § 169A.41 , subd. 2, limits the use of PBT results in court actions where the
PBT was administered pursuant to an investigation for driving while impaired. Subdivision
2(5) permits the use of PBT results in juvenile court proceedings concerning, “a violation
of section 169A.33 (underage drinking and driving), or [section] 340A.503, subdivision 1,
paragraph (a), clause (2) (underage alcohol consumption).”
4
T.D.B. appealed and argued that the PBT result was not admissible because the
search was conducted without a warrant. In a decision filed on April 3, 2017, t his court
reversed in part, holding that the PBT was not admissible under Minn. Stat. § 169A.41,
subd. 2(5), because there was no evidence that T.D.B. “drove, operated, or was in physical
control of a motor vehicle,” and therefore that statute did not apply. In re T. D. B., No.
A16-0944, 2017 WL 1208755, at *2 (Minn. App. Apr. 3, 2017). T his court declined to
further consider T.D.B.’s argument that the PBT result should have been suppressed, and
remanded for the juvenile court “to determine whether the PBT was a search and, if it was,
whether a search warrant was required.” Id.4
T.D.B. turned 19 years old on May 1, 2017. On May 4, 2017, T.D.B. filed a motion
to dismiss in juvenile court, arguing that the court lacked jurisdiction because he was 19
years old.
Neither party petitioned for further review in the first appeal. The clerk of appellate
courts entered judgment on May 31, 2017.
Before entry of judgment in the first appeal, the juvenile court issued a new order
on May 10, 2017, denying T.D.B.’s suppression motion without a hearing, and stating that

4 In his first appeal, T.D.B. raised two additional challenges that were rejected by this court.
First, T.D.B. contended that his statements to Olson should have been suppressed because
he was not given a Miranda warning; second, T.D.B. argued that the underage consumption
statute did not apply because he had consumed alcohol in another state. Id. at *3-5; see also
Minn. Stat. § 340A.503, subd. 1(a)(2). This court concluded that the juvenile court properly
denied T.D.B.’s motion because T.D.B. was not in custody, therefore, no Miranda warning
was required. T. D. B., 2017 WL 1208755, at *4-5. This court also held that Minnesota had
authority under Minn. Stat. § 340A.503 to prosecute T.D.B., even though he had consumed
alcohol in Wisconsin. Id. at *5.
5
the order was pursuant to a remand by the Minnesota Court of Appeals. The juvenile court
first determined that the PBT was a search for which reasonable-articulable suspicion was
required. The juvenile court then found that reasonable, articulable suspicion supported
administration of the PBT in this case, and denied T.D.B.’s suppression motion. Because
the PBT result was admissible, and the court had previously determined T.D.B.’s guilt
beyond a reasonable doubt, the juvenile court adjudicated T.D.B. a juvenile petty offender.
The juvenile court’s May 10 order did not expressly discuss T.D.B.’s motion to dismiss for
lack of jurisdiction. This appeal follows.
D E C I S I O N
I. A decision that follows remand instructions from the appellate court is within
the juvenile court’s jurisdiction if the decision is filed at least 30 days after the
appellate court’s decision has become final.

The narrow issue presented is whether the juvenile court had authority to follow this
court’s remand instructions after our decision became final, but before the clerk of the
appellate courts had entered judgment. T.D.B. argues because jurisdiction “ha[d] not yet
been returned” to the juvenile court, the May 10 order is “null and void.”
It is true that a district court’s authority is suspended, in large part, during an appeal.
Minnesota Rule of Civil Appellate Procedure 108.01, subd. 2, provides, “the filing of a
timely and proper appeal suspends the trial court’s authority to make any order that affects
the order or judgment appealed from.”5 The district court’s jurisdiction raises a question of

5 An appeal divests the district court of jurisdiction over the matters appealed, which
includes matters “necessarily involved” in the order or judgment appealed from. See Spaeth
v. City of Plymouth, 344 N.W.2d 815, 824 (Minn. 1984). The district court retains
6
law, subject to de novo review. City of Waite Park v. Minn. Office of Admin. Hearings, 758
N.W.2d 347, 352 (Minn. App. 2008), review denied (Minn. Feb. 25, 2009). Because
jurisdiction goes to the authority of the district court to hear the case, “lack of subject matter
jurisdiction may be raised at any time, including for the first time on appeal.” Cochrane v.
Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied
(Minn. May 31, 1995).
This court disposes of appeals by written decisions that are filed and then
transmitted to the parties by the clerk of the appellate courts. Minn. R. Civ. App. P. 136.01.
The clerk shall enter judgment “not less than 30 days after the filing of the decision or
order.” Minn. R. Civ. App. P. 136.02. The judgment is “not [to] be entered for 30 days
after the filing of a decision or order to allow the filing of a petition for review to, or
rehearing in the Supreme Court.” Minn. R. Civ. App. P. 136.02 cmt. If a petition for further
review or rehearing is filed, entry of judgment is stayed until denial of the petition. Minn.
R. Civ. App. P. 136.02. Upon entry of judgment by the clerk of appellate courts, the clerk
transmits the judgment to the tria l court administrator; this process is referred to as
“remittitur.” Minn. R. Civ. App. P. 136.03, subd. 1.
We reject T.D.B.’s jurisdictional challenge for two reasons. First, the juvenile court
issued the May 10 order more than 30 days after this court filed its decision in the first
appeal. Because no petition for review was filed, our decision was final at the time the
juvenile court filed the May 10 order. Hoyt Inv. Co. v. Bloomington Commerce & Trade

jurisdiction over matters collateral to or supplemental to the order or the judgment. Minn.
R. Civ. App. P. 108.01, subd. 2.
7
Ctr. Assocs., 418 N.W.2d 173, 176 (Minn. 1988) (holding decisions from this court become
final after the period for a petition for further review has passed or the petition for further
review is denied); see also State v. Grose, 396 N.W.2d 874, 875 (Minn. App. 1986) (“[T]he
trial court did not have jurisdiction and could not obtain it until thirty days from the filing
of the court of appeals decision.”). Second, T.D.B. conceded at oral argument that the
May 10 order followed this court’s remand instructions. Halverson v. Vill. of Deerwood,
322 N.W.2d 761, 766 (Minn. 1982) (holding trial court must follow instructions on
remand). Because the juvenile court followed this court’s instructions on remand , and
waited to act until after the 30-day period for the supreme court review had passed, we
conclude that the juvenile court had jurisdiction to issue the order on May 10.
II. The juvenile court had jurisdiction on remand to adjudicate T.D.B. a juvenile
petty offender.

In his motion to dismiss, T.D.B. argued that the juvenile court lacked jurisdiction
because he turned 19 years old before the court issued its May 10 order. While the juvenile
court’s order did not expressly reject T.D.B.’s motion, the juvenile court’s resolution of
the case on remand includes an implicit denial. T.D.B. renews this jurisdictional challenge
on appeal. “When a statute provides the basis for the juvenile court’s jurisdiction over the
juvenile, the issue of jurisdiction is a question of law subject to de novo review.” State v.
J.E.S., 763 N.W.2d 64, 67 (Minn. App. 2009).
With a few exceptions, “the juvenile court has original and exclusive jurisdiction in
proceedings concerning any child who is alleged to be delinquent, a juvenile traffic
offender, a juvenile petty offender, and in proceedings concerning any minor alleged to
8
have been a delinquent, a juvenile petty offender, or a juvenile traffic offender prior to
having become 18 years of age.” Minn. Stat. § 260B.101, subd. 1 (2016). Unless a juvenile
qualifies for a statutory exception, none of which are applicable here, the juvenile court’s
jurisdiction “shall continue until the individual becomes 19 years of age;” the juvenile court
may terminate its jurisdiction on its own motion or the motion of a party . Minn. Stat.
§ 260B.193, subd. 5(a); In re Welfare of V.D.M., 623 N.W.2d 277, 279 (Minn. App. 2001),
review denied (Minn. May 15, 2001). None of the statutory provisions extending juvenile
court jurisdiction apply in this case.
But this court has previously held that the juvenile court retains jurisdiction to
“complet[e] an adjudication on the allegations of delinquency” if the alleged offenses
occurred before the child turned 19 years old. In re Welfare of C.A.N., 370 N.W.2d 438,
442-43 (Minn. App. 1985). In C.A.N., this court consider ed whether the juvenile court
retained jurisdiction to adjudicate a delinquency petition after the child had turned 19 years
old. Id. at 439-40. C.A.N.’s offense allegedly occurred when she was 17 years old and a
delinquency petition was filed 13 months later. Id. Because the relevant statute defined
“child” to include “any minor alleged to have been delinquent . . . prior to having become
age 18,” this court held that juvenile court jurisdiction “continues over an individual 18
years of age or older where the alleged offense occurred before that individual was 18 years
old.” Id. at 440-41 (citing Minn. Stat. § 260.015, subd. 2 (1984) (defining child));6 see also

6 Although Minn. Stat. § 260.015, subd. 2, has since been repealed, we find C.A.N.
persuasive because Minn. Stat. § 260B.101, subd. 1, provides a definition of “[c]hildren
who are delinquent” that is similar to the repealed statute relied upon in C.A.N. See Minn.
Stat. § 260B.101, subd. 1 (“[T]he juvenile court has original and exclusive jurisdiction in
9
State v. Fleming, 302 Minn. 61, 64, 223 N.W.2d 397, 399-400 (1974) (holding that juvenile
court jurisdiction is based on the juvenile age’s when the alleged violation occurred).
While T.D.B.’s case is a juvenile petty offender adjudication, and not a delinquency
case like C.A.N., we are persuaded that C.A.N.’s reasoning applies. T.D.B. was 17 years
old when the offense occurred and the petty citation was issued. Thus, the juvenile court
acted within its authority under C.A.N., and we conclude that the juvenile court had
jurisdiction to adjudicate T.D.B., even after he turned 19 years old. We, therefore, affirm
the juvenile court’s implicit denial of T.D.B.’s motion to dismiss for lack of jurisdiction.
III. Because law enforcement administered the PBT to advance its own
investigation, probable cause and a warrant, or an exception to the warrant
requirement, were required.

The juvenile court denied T.D.B.’s suppression motion after concluding that a
“search warrant was not required to administer the PBT because Officer Olson had a
reasonable articulable suspicion to believe that [T.D.B.] had engaged in the underage
consumption of alcohol.” T.D.B. argues that the PBT results must be suppressed because
the PBT was a search under the Fourth Amendment, which requires probable cause and a
warrant, or an exception to the warrant requirement. T.D.B. also argues that because Olson
did not obtain a warrant, and the search did not fall into any exception to the warrant
requirement, the evidence must be suppressed.
In reviewing pretrial orders on motions to suppress evidence, appellate courts will
independently examine the facts and determine de novo whether the district court’s

proceedings concerning any child who is alleged to be delinquent . . . prior to having
become 18 years of age.”).
10
determination was in error. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). In addition,
appellate courts “review de novo a district court’s ruling on constitutional questions
involving searches and seizures.” State v. Anderson, 733 N.W.2d 128, 136 (Minn. 2007).
The United States Constitution protects against unreasonable searches and seizures
by law enforcement. U.S. Const. amend. IV. Generally, under the Fourth Amendment,
warrantless searches are “presumptively unreasonable” unless there are exigent
circumstances present or the search falls under an exception to the warrant requirement.
State v. Milton, 821 N.W.2d 789, 798-99 (Minn. 2012) (quotation omitted).
In T.D.B.’s case, the state does not contend that there were exigent circumstances
or that an exception to the warrant requirement applies.7 Instead, the state urges us to affirm
because the PBT is a field sobriety test for which, in the DWI context, courts have required
reasonable articulable suspicion, a lesser standard than probable cause. We disagree. 8 As
we previously held, the impaired-driving statutes and related caselaw that have permitted

7 The state raised the consent exception in response to T.D.B.’s motion to suppress and in
the first appeal. But the state did not raise consent in this appeal. Issues not argued in the
briefs are deemed waived and will not be considered. See Melina v. Chaplin, 327 N.W.2d
19, 20 (Minn. 1982). Even so, the state elicited no testimony that T.D.B. consented to the
PBT either at the suppression hearing or during the trial. Officer Olson testified that he
“gave [T.D.B.] the [preliminary breath] test” and did not testify that T.D.B. consented to
the PBT.

8 To be clear, recent precedent indicates that a PBT is a search. For example, the Supreme
Court has recently held that the “taking of a blood sample or the administration of a breath
test is a search.” Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016); see also Mell
v. Comm’r of Pub. Safety, 757 N.W.2d 702, 709 (Minn. App. 2008). In addition, this court
has held that field sobriety tests do not include PBTs; therefore, the standard applicable to
field sobriety tests is not relevant. See Vondrachek v. Comm’r of Pub. Safety, __ N.W.2d
__, __ No. 17-0462, slip op. at 7-8 (Minn. App. Dec. 18, 2017).

11
warrantless PBTs for drivers is not applicable to law enforcement’s administration of a
PBT to a student who is at school. In the first appeal, this court determined that there was
no evidence T.D.B. “drove, operated, or was in physical control of a motor vehicle.” T. D.
B., 2017 WL 1208755, at *2.
Students in school are protected from unreasonable searches and seizures under the
Fourth Amendment. New Jersey v. T.L.O., 469 U.S. 325, 333-34, 105 S. Ct. 733, 738
(1985). Because of the special need to maintain order and protect student safety in public
schools, the United States Supreme Court has held that school officials need not strictly
adhere to the requirement that searches be supported by probable cause and a warrant.
T.L.O., 469 U.S. at 341, 105 S. Ct. at 742. Instead, the Court established a two-part inquiry
to determine the reasonableness of a search conducted by school officials: (1) whether the
search was “justified at its inception; (2) whether the search “was reasonably related in
scope to the circumstances which justified the interference in the first place.” Id., 105 S. Ct.
at 742-43 (quotations omitted.) In T.L.O., t he Court explicitly declined to decide “the
appropriate standard for assessing the legality of searches conducted by school officials in
conjunction with or at the behest of law enforcement agencies.” 469 U.S. at 341-42 n.7,
105 S. Ct. at 743 n.7
Since T.L.O., few courts have considered what standard applies to student searches
conducted by law enforcement on school grounds. Those that have considered the issue
have held that a “reasonableness” standard applies in three circumstances: when school
officials initiate the search, police are only minimally involved, or police conduct the
search at the direction of the school officials. See, e.g., Shade v. Farmington , 309 F.3d
12
1054, 1061 (8th Cir. 2002) (police searched students for weapons after school officials had
initiated investigation and requested police assistance to conduct search); Cason v. Cook,
810 F.2d 188, 191-93 (8th Cir. 1987) (school liaison police officer completed pat-down
search for stolen items in conjunction with school official); In re Angelia D.B., 564 N.W.2d
682, 688-90 (Wis. 1997) (police officer conducted search at request of school official who
suspected student possessed a weapon).
Here, school officials administered a breath test to T.D.B., decided to impose a one-
day suspension because of the safety concerns related to students under the influence at
school, called T.D.B.’s father to drive him home, and then “referr[ed]” T.D.B.’s case to
law enforcement. Officer Olson initially spoke to T.D.B. in the principal’s office where
T.D.B. admitted to drinking over the weekend, Olson smelled alcohol on T.D.B.’s breath
and completed a sobriety test, finding “nystagmus in his eyes.” Olson then brought T.D.B.
to his separate office at the school; the school officials did not accompany Olson and T.D.B.
Olson administered the PBT, which detected an alcohol concentration of 0.034. Olson
testified that he performed the PBT on T.D.B. to further his own investigation.
Based on these undisputed facts, the PBT was not administered by school officials,
nor did police administer the PBT to T.D.B. at the school officials’ request. In fact, the
school had completed its investigation of T.D.B., and law enforcement conducted the PBT
to advance its own investigation. Based on this record, we conclude that the PBT was a
search under the Fourth Amendment and required probable cause and a warrant, or an
exception to the warrant requirement, before Officer Olson could administer a PBT to
T.D.B.
13
The juvenile court erroneously relied on caselaw upholding the use of PBTs without
a warrant in other settings. It is true that the administration of PBTs has not been limited
to cases involving traffic stops, but the cases relied on by the juvenile court have no
applicability to the use of PBTs in schools. See, e.g., Mell, 757 N.W.2d at 709 (considering
PBTs administered by correctional facilities in the inmate-booking process). We also reject
the juvenile court’s reliance on underage consumption case law that merely mentions PBT
evidence, and does not address the legality of the search. See, e.g., State v. Abu-Shanab,
448 N.W.2d 557, 558 (Minn. App. 1989).9
We conclude that Officer Olson’s administration of the PBT to T.D.B. was a search
that required probable cause and a warrant, or an exception to the warrant requirement.
Olson did not obtain a warrant to administer the PBT and the state does not assert that any
exigency or exception to the warrant requirement applies. Because Olson did not obtain a
warrant and no exception applies, the PBT result must be suppressed and the juvenile court
erred in denying T.D.B.’s suppression motion. The parties have not asked for a particular
remedy in this case; thus, we remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.

9 The juvenile court also relied on an unpublished decision, which is not precedential. See
Minn. Stat. § 480A.08, subd. 3(c) (2016); Gen. Cas. Co. of Wis. v. Wozniak Travel, Inc.,
762 N.W.2d 572, 575 n.2 (Minn. 2009).