State of Minnesota, Appellant,

This opinion will be unpublished and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
A17-1372

State of Minnesota,
Appellant,

vs.

Mary Elizabeth Dunn,
Respondent.

Filed February 20, 2018
Affirmed
Rodenberg, Judge

Ramsey County District Court
File No. 62SU-CR-17-675

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

Robb L. Olson, White Bear Lake City Pr osecutor, Heather Monnens, Assistant City
Prosecutor, GDO Law, White Bear Lake, Minnesota (for appellant)

Hillary B. Parsons, Allan Caplan, Caplan & Tamburino Law Firm , P.A., Minneapolis,
Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
The state appeals from the district court’ s order granting respondent Mary Elizabeth
Dunn’s motion to suppress evid ence in this driving while impaired (DWI) prosecution,

2
based on the district court’s finding that the consent given to enter respondent’s residence
was involuntary. We affirm.
FACTS
On March 4, 2017, White Bear Lake poli ce officer Isaac Tuma was dispatched in
response to a 911 call regardi ng a possibly intoxicated driv er. The caller, N.R., had
followed the suspect, who was driving a blac k Mercedes, as she drove away from a dry-
cleaning business. Officer Tuma testified th at the dispatcher re layed to him N.R.’s
information about the location of the black Mercedes as N.R. followed it until the Mercedes
pulled into the driveway of a residence.
Officer Tuma met with and interviewed N.R. in a church parking lot. The interview
was recorded. At the beginning of the interview, N.R. stated that he has helped catch drunk
drivers in the past and that this was his sixt h time calling the police about a drunk driver.
N.R. explained that he was at the dry clean ers when he saw a “red -haired elderly woman
get out of the Mercedes and hold herself up on the car as she walked from the driver’s door
around the back of the car to the passenger door.” He further stated that the woman leaned
on her car and the building for support. She said “oh my leg’s not working” as she wobbled
through the door. N.R. told Officer Tuma th at he waited for the woman to leave the dry
cleaners so that he could follow her car. According to N.R., he followed the woman’s car
and noticed that she was having trouble stayi ng in her own lane and made a “very wide
turn.” Officer Tuma testified that he be lieved the described driving behavior was
consistent with the driver be ing under the influence of alco hol. N.R. confirmed to the
officer that he continued following the woman’s car until it pu lled into a driveway. Near

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the end of the interview, Officer Tuma told N.R. that “we have your statement so no matter
what we can test her.” On cross-examination at the omnibus hearing, Officer Tuma said
that he made the statement to pander to N.R., tell N.R. what he wanted to hear, and build
N.R.’s confidence.
Dispatch gave Officer Tuma respondent ’s driver’s license information as the
registered owner of the Mercedes. The photograph associated with the license matched the
description of the driver N.R. had provided. Officer Tuma testified that, after hearing
N.R.’s description of responde nt’s behavior, he was concerne d that the driver may have
been intoxicated or having so me medical issues. Officer Tuma explained that he has
responded to calls of suspected drunk drivers in the past that turned out to be medical
emergencies, and mentioned one case in which he responded to an accident where it turned
out that the driver was having a diabetic reaction. He testified that he went to respondent’s
house to conduct a welfare check. When O fficer Tuma and a second officer arrived at
respondent’s house, her husba nd, G.C., answered the door. Officer Tuma, wearing his
police uniform and arriving in a fully marked squad car, identified himself as a police
officer. He testified that he did not bring a PBT with him when he went to the door.
Officer Tuma told G.C. that someone had called the police because they were
worried about respondent’s welfare after she was seen using her vehicle to hold herself up.
G.C. said that respondent was probably holding herself up because of her back issues, but
that she was in the bedroom and was doing fine. Officer Tuma testified that he wanted to
personally see respondent to make sure that things were okay. G.C. invited the officer
inside and said that he woul d go get respondent. Accordin g to Officer Tuma, G.C. was

4
gone for longer than he expected and returned alone, but said that respondent was coming.
Eventually, respondent, whom Officer Tuma recognized from her driver’s license picture,
entered the room. Officer Tuma noticed th at respondent was havi ng difficulty walking,
which he testified that he thought might have been due to her back problem. However,
Officer Tuma said that when respondent reached the couch, she tried using her hand for
support as she sat down but missed the couc h, which left her leaning in an awkward
position such that Officer Tuma and G.C. moved to assist her. After assisting respondent,
Officer Tuma began asking re spondent questions about whether she had consumed any
alcohol or medications. As respondent answered, Officer Tuma smelled alcohol on her
breath. Officer Tuma testified that based on the smell of alcohol, respondent’s lack of
balance, and her slurred speech and red eyes, he believed that she was under the influence
of alcohol. At that point—after smelling the alcohol—Officer Tuma testified that his
purpose switched from conducting a welfare ch eck to investigating a DWI. He later
arrested respondent and obtained a breath sample that showed a 0.25 alcohol concentration.
G.C., a retired physician and intellectual- property attorney, also testified at the
omnibus hearing. He testified that Officer Tuma told him that his purpose was to conduct
a welfare check on respondent based on a report that resp ondent was having difficulty
walking. G.C. stated that he told Officer Tuma that respondent had a back condition, and
that respondent came home and put laundry away, then went to bed and was fine apart from
her back issues. According to G.C., Officer Tuma was “persi stent in explaining that he
really needed to satisfy himself that [respondent] was, in fact, fine.” G.C. testified that he
felt like he had no choice but to let Officer Tuma see respondent and that he did not think

5
it mattered whether he said that respondent was fine or not. He felt “forced into acquiescing
to [the officers’] demands that they physically see her.” G.C. testified that if he had known
that Officer Tuma was investigating a DWI, he would not have let the officers inside
without a warrant. G.C. explained that, while he was an attorney, he did not know how
welfare checks fit into Fourth-Amendment law. He practiced intellectual-property law and
did not know whether he could insist on a warrant.
Respondent was charged with two coun ts of second-degree DWI. Respondent
moved to suppress the evidence obtained after the officers entered her house, arguing that
G.C.’s consent to the entry was not voluntar y because Officer Tuma misrepresented the
purpose for which he sought en try. The district court gr anted respondent’s motion to
suppress all of the evid ence obtained by the o fficer following his entry into respondent’s
home. Although the district court did not expressly dismiss the complaint, the state
contends, and respondent does not dispute, th at the district court’s suppression order
renders the state without sufficient evidence to prove the charged offense.
This appeal followed.
D E C I S I O N
The state “may appeal as of right” to this court “in any case, from any pretrial order.”
Minn. R. Crim P. 28.04, subd. 1(1). “W hen the state appeals from a pretrial order
dismissing a criminal charge, this court will reverse only if the state clearly and
unequivocally demonstrates that the district court erred and that the error, unless reversed,
will have a critical impact on the outcome of the prosecution.” State v. Gradishar , 765
N.W.2d 901, 902 (Minn. App. 2009) (quotation omitted). “Cr itical impact is a threshold

6
showing that must be made in order for an appellate court to have jurisdiction.” Id. (citing
State v. Kim , 398 N.W.2d 544, 550 (Mi nn. 1987)). The critical-imp act test is satisfied
when the district court’s order “bars further prosecution of a defendant.” Gradishar, 765
N.W.2d at 902. The parties agree that the district court’s order suppressing the evidence
effectively bars further pros ecution and has a critical impact on this case. Without the
evidence obtained by Officer Tu ma, the state would doubtless have insufficient evidence
on which to convict.
We therefore turn to the mer its of the state’s appeal. In reviewing a pretrial order
suppressing evidence, “we may independently review the facts and determine, as a matter
of law, whether the district court erred in suppressing—or not suppressing—the evidence.”
State v. Klamar , 823 N.W.2d 687, 691 (M inn. App. 2012) (quoting State v. Harris , 590
N.W.2d 90, 98 (Minn. 1999)). “We review the district court’s findings of fact under a
clearly erroneous standard, but we review its legal determinations de novo.” Klamar, 823
N.W.2d at 691. We defer to the district court’s credibility determinations. Id.
The state argues that the district court e rred in concluding that G.C.’s consent to
Officer Tuma’s entry was involuntary. “The question of whether consent is voluntary is a
question of fact, and is based on all relevant circumstances.” State v. Othoudt, 482 N.W.2d
218, 222 (Minn. 1992) (citing Schneckloth v. Bustamonte , 412 U.S. 218, 227, 93 S. Ct.
2041, 2047-48 (1973)). We will not reverse a district court’s finding concerning the
voluntariness of consent unless it is clearly erroneous. State v. Hummel, 483 N.W.2d 68,
73 (Minn. 1992). “Because the trial court is obviously in the better position to assess the
credibility of the witnesses, the state on appeal must show cl early and unequivocally that

7
the trial court erred in finding that consent was involuntary.” State v. Schweich , 414
N.W.2d 227, 230 (Minn. App. 1987).
In order to be voluntary, consent must be given without coercion and must not be a
mere submission to an assertion of authority. State v. Dezso, 512 N.W.2d 877, 880 (Minn.
1994). Voluntariness is dete rmined by examining “the to tality of the circumstances,
including the nature of the en counter, the kind of person th e defendant is, and what was
said and how it was said.” Id. “[I]f under all the circumstances it has appeared that the
consent was not given voluntarily—that it was coerced by threats or force, or granted only
in submission to a claim of lawful authority,” then the consent is invalid. Schneckloth, 412
U.S. at 233, 93 S. Ct. at 2051.
Officer Tuma told G.C. that he needed to enter the home to see respondent as part
of a welfare check based on N.R.’s statemen ts that respondent was having difficulties
walking.1 “Misrepresentations about the nature of an investigation may be evidence of
coercion.” State v. Bunce, 669 N.W.2d 394, 399 (Minn. App. 2003) (quoting United States
v. Turpin, 707 F.2d 332, 334 (8th Cir. 1983)), review denied (Minn. Dec. 16, 2003). If
consent to search is given based on reliance upon a misrepresentation, the consent will be
invalid. Turpin, 707 F.2d at 335. While a ‘tacit misr epresentation” about the purpose of

1 “Under the ‘emergency exception’ to the warrant requirement police are allowed to make
a warrantless entry and search of a home when they reasonably believe that a person is in
need of immediate aid.” State v. Halla-Poe , 468 N.W.2d 570, 572 (Minn. App. 1991)
(quoting Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413 (1978)). The state
does not argue that this search was con ducted under the emergency-aid exception on
appeal; rather, the state relies only on G.C.’s consent as having authorized the warrantless
entry into the home.

8
the search “may even rise to such a level of deception so as to invalidate a search[,] . . . an
officer’s failure to tell a defendant that he is suspected of a crime does not invalidate the
defendant’s consent to search the house.” Bunce, 669 N.W.2d at 399 (citation omitted).
We have “emphasize[d] police do not have auth ority, simply by using the term ‘welfare
check,’ to vitiate the protections of the [F]ourth [A]mendment.” Halla-Poe, 468 N.W.2d
at 573.
The district court found that Officer Tu ma “gained entry to the home under false
pretenses,” and that telling G.C. that he was there for a welfare check was a
“misrepresentation” that “rose to such a level of deception as to invalidate” G.C.’s consent.
G.C. initially denied the officer entry. The district court f ound that it was only after the
“misrepresentation” that G.C. allowed Officer Tuma to enter the home, and see and visit
with respondent. The district court implicitly found that the officer did not actually have
the purpose to do a welfare ch eck and, instead, intentionally misidentified that as his
purpose to obtain G.C.’s consent to enter the home and continue the DWI investigation.
The state argues that Officer Tuma’s purposes were several, including both a DWI
investigation and a welfare check. It argues th at the latter was a va lid purpose for which
Officer Tuma could request entry to the residence, and that Officer Tuma was not required
to disclose any criminal investigation or any other purpose for which he sought entry. The
testimony that Officer Tuma left his PBT in his squad car and has had experiences where
calls for suspected drunk driver s have turned out to be me dical emergencies lends some
support to the state’s argument that Officer Tuma wanted to conduct a welfare check.

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The district court found that Officer Tuma told G.C. only that he wanted to conduct
a welfare check and made no mention of any belief that respondent may have been driving
while impaired. The district court implicitly rejected the contention that Officer Tuma was
conducting a welfare check. During his discussion with N.R., Officer Tuma expressed no
concern about respondent’s health. N.R. expr essed no belief or con cern that respondent
was ill or injured; he thought she was drunk. At the conclu sion of the interview, Officer
Tuma told N.R. that “no matter what we can test her.” In concluding that “Officer Tuma
was investigating a DWI,” the district court implicitly made a cr edibility determination
rejecting Officer Tuma’s multiple-purpose claim concerning hi s request to enter
respondent’s home. “Because the trial cour t is obviously in the better position to assess
the credibility of the witnesses, the state on appeal must s how clearly and unequivocally
that the trial court erred in finding that consent was involuntary.” Schweich, 414 N.W.2d
at 230. We apply this standa rd of review, and view the reco rd evidence as a whole. The
district court did not clearly and unequivo cally err in finding that Officer Tuma
misrepresented the purpose for which he sought entry.
Supporting the district court’s finding is Officer Tuma’s testimony that he did not
plan to leave the residence without seeing respondent. He was determined to see and visit
with respondent despite G.C.’s assurances that she was not ill or injured. G.C. confirmed
Officer Tuma’s testimony on this issue, testifying that the officer was “persistent” in stating
that he needed to see respondent and did not seem willing to le ave. G.C. testified that he
felt “forced into acquiescing” to Officer Tuma’s demands to se e respondent. The district
court credited G.C.’s testimony that he would not have allowed entry without a warrant if

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he had known that Officer Tuma was investigating a DWI. On this record, the district court
did not clearly err in finding that G.C.’s c onsent was merely a “submission to a claim of
lawful authority,” and therefore involuntary. Schneckloth, 412 U.S. at 233, 93 S. Ct. at
2051.
This case does not require, as the state ar gues, a new rule of law that officers must
warn every person they encounter of all of the possible purposes for requesting entry into
a home. As set forth above, “the question of whether consent is voluntary is a question of
fact, and is based on all relevant circ umstances” of the particular case. Othoudt, 482
N.W.2d at 222. On this record, the district court did not clearly err in finding that G.C.’s
consent to Officer Tuma’s entry was involunt ary based on the distri ct court’s factual
findings of a “misrepresentation” and “deceptio n” by the officer in extracting consent to
enter respondent’s home.
Affirmed.