Antone Larron Owens, petitioner, Appellant,

This opinion will be unpublished and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
A19-0087

Antone Larron Owens, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent

Filed August 12, 2019
Affirmed
Schellhas, Judge

Hennepin County District Court
File No. 27-CR-15-30253

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal -Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Schellhas, Judge; and
Jesson, Judge.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant argues that a postconviction court abused its discretion by rejecting his
postconviction claim that his trial counsel provided ineffective assistance by not
challenging the warrantless taking of his urine for chemical testing. We affirm.
FACTS
Very early in the morning on September 20, 2015, Minnesota State Patrol Trooper
Andrew Gibbs stopped appellant Antone Owens’s vehicle for failing to illuminate his tail-
lights. After detecting a scent of alcohol, Trooper Gibbs asked Owens to submit to a field
sobriety test; Owens submitted and failed. Trooper Gibbs arrested Owens, transported him
to the Hennepin County Jail, and read him the implied-consent advisory. Owens spoke with
an attorney, consented to a breath test, and submitted multiple breath samples. E ach test
“came up error” due to a machine malfunction. Owens then provided a urine sample, t he
Minnesota Bureau of Criminal Apprehension analyzed it, and the sample revealed an
alcohol concentration of 0.103.
Respondent State of Minnesota charged Owens with two counts of felony driving
while impaired: operating a motor vehicle under the influence of alcohol and operating a
motor vehicle with a 0.08 or more alcohol concentration within two hours of the time of
driving. Owens moved to suppress the test results on the basis tha t the urine sample was
collected more than two hours after the observed driving conduct. Following a contested
omnibus hearing, the district court found that Owens provided a urine sample
“approximately two hours and thirteen minutes” after Trooper Gibbs stopped him, a finding

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not challenged by the state; concluded that expert opinion about Owens’s alcohol
concentration within two hours of the time of driving presented a question of fact best
resolved by a jury; and denied the suppression motion. A jury found Owens guilty of both
counts. The court entered a conviction on each count and sentenced Owens to 75 months’
imprisonment on count one, operating a motor vehicle under the influence of alcohol.
Owens filed a direct appeal, and this court stayed his appeal to allow him to s eek
postconviction relief . Owens petitioned for p ostconviction relief, claiming that his trial
counsel provided him ineffective assistance by not moving to suppress the urine-test results
on Fourth Amendment grounds . The postcon viction court summarily denied Owens’s
petition. This court reinstated his appeal and rejected his due -process ineffective -
assistance-of-counsel argument because he failed to raise the issue in district court. State
v. Owens, No. A17-0415, 2018 WL 3213016, at *3 (Minn. App. July 2, 2018) ( Edwards
I). But we remanded for an evidentiary hearing regarding the validity of Owens’s consent
to chemical testing of his urine. Id. at *4.
On remand, Owens amended his postconviction petition, adding a due -process
argument regarding his trial counsel’s failure to challenge the urine -test results. T he
postconviction court conducted an evidentiary hearing at which Owens and his trial counsel
testified, and the parties stipulated to the admission of: the audio recording and transcript
of Trooper Gibbs ’s administration of the implied-consent advisory to Owens, the squad -
car video of the traffic stop, and a copy of the implied-consent advisory. The court denied
Owens’s petition, concluding that even if his trial counsel had moved to suppress his urine-
test results on Fourth Amendment or due-process grounds, both motions would have failed,

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and Owens therefore “failed to show there is a reasonable probability the result of the
proceeding would have been different.”
This appeal follows.
D E C I S I O N
Appellate courts “review the denial of a petition for postconviction relief . . . for an
abuse of discretion.” Reed v. State , 925 N.W.2d 11, 18 (Minn. 2019). A postconviction
court “abuses its discretion if it exercised its discretion in an arbitrary or capricious manner,
based its ruling on an erroneous view of the law, or made clearly erroneous factual
findings.” Id. (quotation omitted). “The postconviction court’s legal co nclusions are
reviewed de novo. Fox v. State, 913 N.W.2d 429, 433 (Minn. 2018).
“The Sixth Amendment provides to criminal defendants the right to the assistance
of counsel at trial,” including “the guarantee that counsel’s assistance be effective.” State
v. Mouelle, 922 N.W.2d 706, 715 (Minn. 2019) (quotation omitt ed). “The benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct so undermines the
proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Id. (quotation omitted). “To prevail on an ineffective assistance of
counsel claim, [an] appellant must show both that (1) his trial counsel’s representation fell
below an objective standard of reasonableness and (2) there is a reasonable probability that,
but for the counsel’s unpr ofessional errors, the result of the proceeding would have been
different.” Crow v. State, 923 N.W.2d 2, 14 (Minn. 2019); Strickland v. Washington, 466
U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984). Appellate courts review a
postconviction cour t’s application of the Strickland test “de novo because it involves a

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mixed question of law and fact.” State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017). We
need not consider both parts of the Strickland test if one of the parts fails. Id.
I.
Under the second p art of Strickland, a defendant must “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different.” Mouelle, 922 N.W.2d at 715 (quotation omitted).
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the case.” Mosley, 895 N.W.2d at 591 (quotations omitted). A reviewing court
“considers the totality of the evidence before the judge or jury in making a determination
of prejudice.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).
A. Fourth Amendment claim
Owens argues that but for his trial counsel’s failure to move to suppress his urine -
test results on the basis that his consent was invalid because it was not free and volunta ry,
the test results would have been suppressed and the outcome of the proceeding would have
differed. The postconviction court rejected this argument, concluding that the outcome of
the proceeding would not have differed because a “strong likelihood” existed that a
suppression motion would have been denied because Owens’s consent was valid.
The United States and Minnesota Constitutions prohibit the unreasonable search and
seizure of persons, houses, papers, and effects. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. Taking a urine sample constitutes a search under the Fourth Amendment. State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013). A warrantless search is per se unreasonable
unless an exception to the warrant requirement applies. State v. Stavish, 868 N.W.2d 670,

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675 (Minn. 2015). “But police do not need a warrant if the subject of the search consents.”
Brooks, 838 N.W.2d at 568. “For a search to fall under the consent exception, the State
must show by a preponderance of the evidence that the defe ndant freely and voluntarily
consented.” Id. “Whether consent is voluntary is determined by examining the totality of
the circumstances.” Id. (quotation omitted). “Consent is not involuntary merely because
the circumstances of the encounter are uncomfortab le for the person being questioned.”
State v. Diede , 795 N.W.2d 836, 846 (Minn. 2011) (quotation omitted). “But when an
encounter becomes coercive, when the right to say no to a search is compromised by a
show of official authority the Fourth Amendment int ervenes.” Id. (quotation omitted).
Whether consent was voluntary is a question of fact, reviewed for clear error. Id. “Findings
of fact are clearly erroneous if, on the entire evidence, we are left with the definite and firm
conviction that a mistake occurred.” Id. at 846–47.
Quoting Brooks, 838 N.W.2d at 571, Owens argues that under the totality of the
circumstances, his “‘will had been overborne and his capacity for self -determination
critically impaired,’” rendering his consent invalid. The postconvictio n court found that
Trooper Gibbs read Owens the implied-consent advisory, advising him that he had a choice
to submit or not, see id. at 572 (“While an individual does not necessarily need to know he
or she has a right to refuse a search for consent to be voluntary, the fact that someone
submits to the search after being told that he or she can say no to the search supports a
finding of voluntariness.”); that Owens did not experience coercive pressures; that Trooper
Gibbs gave Owens “ample time to speak and consult with counsel before agreeing to
submit to any kind of chemical test ,” see id. (recognizing that “the ability to consult with

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counsel about an issue supports the conclusion that a defendant made a voluntary
decision”); and that when Trooper Gibbs a sked Owens if he wanted to submit to a urine
test, Owens did not ask any questions or ask again to speak to an attorney , see id. at 570
(“[A] driver’s decision to agree to take a test is not coerced simply because Minnesota has
attached the penalty of maki ng it a crime to refuse the test.”) . The court therefore found
that Owens’s consent was voluntary. The record shows that Trooper Gibbs gave Owens
approximately 40 minutes of attorney time ; provided him a cellphone, a landline, and a
phone book; and helped him out of the police car after he said that he did not have enough
light to read the telephone book. The record supports the court’s findings.
Owens argues that the implied-consent advisory read to him inaccurately threatened
him with a crime for refusing a warrantless blood or urine test and that the inaccurate threat
rendered his consent invalid. The accuracy or inaccuracy of an implied consent read to a
driver is a relevant factor in determining the voluntariness of the dri ver’s consent. See
Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016) (remanding for district court to
“reevaluate [driver]’s consent given the partial inaccuracy of the officer ’s advisory”
(footnote omitted)). But Owens cites to no case, and we could find none, that holds that an
inaccurate advisory alone renders a driver’s consent involuntary. And while Owens argues
that “he agreed to a urine test only because Trooper Gibbs inac curately told him refusing
the urine test was a crime and he did not want to be automatically charged,” the record does
not support this contention. (Emphasis added.) Owens had the opportunity to consult with
an attorney, he did not face repeated police questioning, or spend multiple days in custody,
see Brooks, 838 N.W.2d at 571 (concluding that driver did not face coercion when he was

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“neither confronted with repeated police questioning nor was he asked to consent after
having spent days in custody”), and the advisory read by Trooper Gibbs made clear to
Owens that he had a cho ice of whether to submit or not, cf. id. at 571 –72 (concluding
consent was voluntary where driver was told he had a choice whether to submit or not to
testing, had the opportunity to consult with an attorney, was under arrest, and did not face
repeated police questioning). Examining the totality of the circumstances, we conclude that
Owens validly consented to providing a urine sample because his consent w as voluntarily
and freely give n. See State v. Dezso , 512 N.W.2d 877, 88 0 (Minn. 1994) (stating that
consent must be “received, not extracted”).
Because Owens provided a valid consent to the collection of a urine sample, his
Fourth Amendment rights were not violated by the warrantless urine testing. Cf. id. at 880–
81 (concluding that consent to give wallet to officer was not voluntary where defendant
was repeatedly questioned while sitting in a police car, the officer physically leaned toward
the defendant, and the defendant’s answers se emed “to fend off a search”). A motion to
suppress on Fourth Amendment grounds therefore would have failed, and, accordingly, we
conclude that the postconviction court did not err by denying Owens’s ineffectiveness-of-
counsel claim based on Fourth Amendment grounds. See Johnson v. State , 673 N.W.2d
144, 148 (Minn. 2004) (“A claim of ineffective assistance of counsel may not rest on the
failure of an attorney to make a motion that would have been denied if it had been made.”).

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B. Due-process claim
Owens also argues that his urine-test results would have been suppressed if his trial
counsel had moved to suppress them on due-process grounds. This court reviews a due -
process challenge de novo. State v. Rey, 905 N.W.2d 490, 494 (Minn. 2018). An implied-
consent advisory that threatens a criminal consequence that the state is not authorized to
impose violates due-process. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855
(Minn. 1991). To the extent that it is applicable to criminal proceedings, the supreme court
clarified in Johnson v. Comm’r of Pub. Safety , that a McDonnell violation occurs when a
driver proves that he or she (1) “submitted to a breath, blood, or urine test”;
(2) “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 testing.” 911 N.W.2d 506, 508–09 (Minn. 2018).
Here, Owens satisfied the first McDonnell factor because he submitted to a urine
test. But the postconviction court implicitly found that Owens failed to satisfy the second
factor because his testimony at the postconviction evidentiary hearing established that he
did not prejudicially rely on an inaccurate advisory. Owens claims that he “testified at the
evidentiary hearing [that] he submitted to the [urine] test . . . based on the implied consent
advisory . . . telling him that refusing to test was a crime.” The record does not support his
claim. When asked what his understanding was about test refusal after exercising his right
to speak to an attorney, Owens testified that he “would have been charged with a crime
automatically for refusing to take – to take the breathalyzer test.” He also testified that he
did not recall asking Trooper Gibbs about what would happen if he refused to submit to a

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urine test, and he agreed adamantly that Trooper Gibbs “only told [him] that it would be a
crime if he refused a breath test.”
On redirect examination, the following colloquy occurred:
DEFENSE COUNSEL: Mr. Owens, after the Breathalyzer test
failed and Trooper Gibbs asked you to take the urine test, did
he, uh, again tell you that, uh, go through the advisory at all,
that you would have a right to consult with counsel before you
took the urine test?
THE DEFENDANT: Ma’am, no, ma’am.
DEFNSE COUNSEL: Okay. And is it possible that when
Trooper Gibbs gave you the advisory that he just talked to you
generally that refusing to test was a crime as opposed to
specifically saying a Breathalyzer, refusing the Breathalyzer is
a crime?
THE DEFENDANT: He specifically instructed that if I didn’t
take that Breathalyzer test, that it’s a crime.
DEFNSE COUNSEL: That’s what you recall.
THE DEFENDANT: He said nothing about no urinalysis.
DEFNSE COUNSEL: Okay. But if the squad car video reflects
something different, would you disagree with that? For
example, if the squad car video reflects that he just told you
taking a test – refusing to take a test is a crime, would you have
reason to dispute that?
THE DEFENDANT: Taking the Breathalyzer test.
DEFNSE COUNSEL: Okay. So you recall him specifically
saying a Breathalyzer and not just a test in general?
THE DEFENDANT: Yes, that’s correct.

(Emphasis added.)
Although Owens also testified that he “had no choice but to say, yes, because it’s
an automatic refusal,” the bulk of his testimony belies that claim. Despite his
postconviction attorney’s earnest efforts to rehabilitate Owens on redirect examination, the
above colloquy reveals that Owens understood that the implied -consent advisory
threatened a crime only if he refused a breath test. Owens therefore did not satisfy the

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second McDonnell factor—that he prejudicially relied on the threat of a refusal crime in
the implied-consent advisory when deciding to provide a urine sample. Because Owens
failed to satisfy the second McDonnell factor, we need not analyze whether the implied -
consent advisory incorrectly stated the law. Cf. Morehouse v. Comm’r of Pub. Safety, 911
N.W.2d 503, 505 (Minn. 2018) (declining to address third McDonnell factor when driver
failed to establish that he prejudicially relied on implied-consent advisory).
Because Owens failed to satisfy the second McDonnell factor, even if his trial
counsel had moved to suppress his urine-test results on the basis of a due-process violation,
his motion would have been denied. The postconviction court therefore did not err by
concluding that Owens suffered no prejudice based on his trial cou nsel’s failure to raise a
due-process violation because the outcome of the proceeding would not have differed.
II.
“In evaluating claims of ineffective assistance of counsel, there is a strong
presumption that counsel’s performance was reasonable.” Crow, 9 23 N.W.2d at 14
(quotation omitted). Because Owens failed to satisfy the second part of the Strickland test,
we need not consider the first part of the test—whether his trial counsel’s performance was
reasonable. See Mosley, 895 N.W.2d at 591 (“If a claim fails to satisfy one of the Strickland
requirements, we need not consider the other requirement.”).
Affirmed.