State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1551

State of Minnesota,
Respondent,

vs.

Jason Randolph Christianson,
Appellant.

Filed June 6, 2022
Affirmed
Bryan, Judge

Becker County District Court
File No. 03-CR-19-2334

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

Charles Ramstad, Detroit Lakes City Attorney , Karen Skoyles, Assi stant City Attorney,
Ramstad, Skoyles & Winters, P.A., Detroit Lakes, Minnesota (for respondent)

Luke T. Heck, Drew J. Hushka, Vogel Law Firm, Fargo, North Dakota (for appellant)

Considered and decided by Wheelock, Pres iding Judge; Jesson, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal from his conviction, appellant challenges the district court’s
denial of his pretrial motions to dismiss and suppress evidence, arguing that police lacked
reasonable suspicion of wrongdoing when appellant was seized and that police violated his
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right to the limited assistance of counsel when deciding whether to submit to a breath test.
We affirm the district court’s denial of appe llant’s pretrial motions because we conclude
that there was reasonable and articulable suspicion when law enforcement began an
investigatory seizure and because appellant’s right to counsel was vindicated.
FACTS
Respondent State of Minnes ota charged appellant Jaso n Randolph Christianson
with three misdemeanor counts of driving while impaired (DWI). Among other motions,
Christianson moved to dismiss the charges and to suppress evidence obtained as a result of
an unlawful investigatory seizure. Christia nson also moved to suppr ess the results of a
chemical breath test. After a contested evid entiary hearing, the district court denied
Christianson’s motions. The parties proceeded by stipulation pursuant to Minnesota Rule
of Criminal Procedure 26.01 to obtain appellate review of the district court’s decisions.
The district court found Chri stianson guilty of DWI in viol ation of Minnesota Statutes
section 169A.20, subdivision 1(5) (2018).
Christianson appeals the convictions and challenges the pretrial rulings. Given the
issues raised on appeal, we first address th e facts regarding the investigative seizure of
Christianson and then proceed to discu ss the facts concerning the vindication of
Christianson’s right to counsel prior to subm itting to a chemical breath test. The parties
do not contest the following facts.
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A. Investigative Seizure
On October 30, 2019, at 9:22 p.m., law enforcement offi cers were dispatched to a
private business in Detroit Lakes based on th e activation of a warehouse burglary alarm.
Minnesota State Patrol Trooper Matthew Holden was the first law enforcement officer to
arrive. Approximately ten seconds lapsed fr om the moment that Holden drove into the
driveway leading to the parking lot until he arrived at the front of the warehouse. During
this time, the video recording from the dash camera shows the warehouse as Holden drove
into the parking lot. It is difficult to discern whether Holden illuminated a spotlight,
activated the emergency lights on his patrol car, or both, and Holden did not testify
regarding this. It is clear, however, that pr ior to illuminating the warehouse, Holden was
able to observe the following: the warehouse building had no inside or outside lights on, a
garage door of the warehouse was open, the warehouse burglary alarm was activated, an
SUV was parked in front of the open garage door, the engine of the SUV was running, the
rear door of the SUV was open, and a man was walking out of the open garage door of the
warehouse.
The video recording from the dash came ra shows a man walking empty-handed
from the open garage door to wards the SUV. There are no visible broken windows, and
as the warehouse is illuminated , Holden says that “there’s a vehicle here . . . a worker
maybe.” The man, later identified as Christia nson, raised his hands as he saw the patrol
car approach. Holden got out of the vehicl e and the men walked towards each other.
Holden greeted Christianson and asked, “Do you work here?” Christianson confirmed that
he worked there and explained that he had set off the alarm, there was no broken glass, and
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that he knew how to turn off the alarm. Holden came to the conclusion that it was probably
a false alarm. During their encounter, as Ch ristianson spoke to Holden, Holden “could
smell an odor of an alcoholic beverage coming from [Chris tianson]” and observed
bloodshot and watery eyes. During the next few minutes, Christianson struggled to turn
off the alarm but managed to do so after contacting his employer. Christianson also
admitted to consuming alcohol before drivi ng and submitted to field sobriety tests but
refused to submit to a preliminary breath test. Holden placed Christianson under arrest for
driving under the influence of alcohol and tran sported Christianson to the Becker County
jail.
B. Attorney Consultation
Holden read the Minnesota br eath test advisory to Ch ristianson at 9:47 p.m.
Christianson invoked his limited right to c onsult an attorney, a nd Holden provided
Christianson with a ph onebook and Christianson’s cell phone. Christianson’s first two
calls were to his father and were unsuccessf ul. At 9:51 p.m., Christianson called an
attorney from the phonebook, but he did not actually speak with an attorney. Holden then
asked Christianson if he planned to try to contact someone else, and Christianson
responded that he was still trying to reach someone.
At 9:53 p.m., Christianson tried to cont act his father again but was unsuccessful.
Christianson then called his stepmother and sp oke with her about his attempts to contact
his father for information ab out an attorney. The call w ith his stepmother ended at
9:57 p.m. For a short time, Christianson did not make any attempts to contact anyone or
use the phone. Holden informed Christianson that he needed to be making calls and using
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the phonebook to contact an attorney. Holden also explained that the phonebook contained
contact information for Becker County attorneys available to answer calls 24 hours a day.
Christianson then placed two more calls to his father at 10:03 p.m. and another call
to his stepmother at 10:04 p. m. At 10:05 p.m., Christians on successfully contacted his
father, who agreed to help Christianson contact an attorney. Another brief period of time
passed, during which Christianson did not atte mpt to contact anyone or use the phone.
After waiting for a few minutes, Holden informed Christianson that he would only have a
couple more minutes to contac t an attorney. Christianson ap ologized and explained that
he had contacted his father. Then, Christia nson engaged Holden in a conversation about
his training, education, and familiarity with the Detroit Lakes area. At 10:12 p.m., Holden
terminated Christianson’s attorney time and asked him if he would submit to a breath test.
Christianson agreed to submit to a breath test and the results indicated that Christianson’s
blood alcohol content exceeded the legal limit.
DECISION
I. Reasonable Suspicion to Support the Investigatory Seizure
Christianson argues that Holden did not have a reasonable, articulable suspicion of
criminal activity when they conducted an investigatory seizure.1 We are not convinced and
conclude that the totality of the circumstances supported the investigatory seizure.

1 Christianson only challenges the basis for the initial encounter a nd concedes that once
Holden began speaking with Christianson, Ho lden had a sufficient basis to expand the
investigation to include driving under the influence.
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The United States and Minnesota Constituti ons guarantee the “ri ght of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV; Minn. Co nst. art. I, § 10. As a general rule, a law
enforcement officer may temporarily detain a person for investigatory purposes if the
officer has a reasonable, articulable suspici on that the person has engaged in criminal
activity. Terry v. Ohio, 392 U.S. 1, 19-22 (1968); State v. Diede, 795 N.W.2d 836, 842-43
(Minn. 2011). For an investigatory seizure to be supported by reasonable suspicion, there
must be “specific, articulable facts” showin g that the officer “had a particularized and
objective basis for suspecting the seized person of criminal activity.” Diede, 795 N.W.2d
at 842-43 (quotations omitted). This court considers the totality of the circumstances when
determining whether police had reasonable suspicion. State v. Britton, 604 N.W.2d 84, 87
(Minn. 2000). The standard for reasonable susp icion is “not high,” but it requires more
than “an inchoate and unparticul arized suspicion or hunch.” State v. Timberlake , 744
N.W.2d 390, 393 (Minn. 2008) (quotations omitted); State v. Harris, 590 N.W.2d 90, 99
(Minn. 1999) (an officer “may draw infere nces and deductions that might elude an
untrained person”). “[W]holly lawful conduct might justify the suspicion that criminal
activity is afoot.” Britton, 604 N.W.2d at 89 (citation omitte d). Evidence obtained as a
result of an unlawful investigatory seizure must be suppressed. Diede, 795 N.W.2d at 842.
We review de novo the “determination that the police articulated a reasonable suspicion of
criminal activity warranting the governmental intrusions in question.” Id. at 843.
Christianson argues that Holden lacked a sufficient basis to conduct an investigatory
seizure because of the following three circum stances: (1) Holden did not personally see
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any broken windows as he drove to the fr ont of the warehouse; (2) Holden thought
Christianson might be an employee of the business; and (3) Christianson was not carrying
any items as he walked towards the SUV.2 After careful review of the record, we conclude
that the investigatory seizure was supported by reasonable, articulable suspicion.
Holden was dispatched to the warehouse to investigat e a burglary alarm that was
triggered after dark and after normal busine ss hours. Prior to activating the emergency
lights (or a spotlight) on his pa trol car, Holden was able to see that the warehouse garage
door was open, and a man was walking out of the warehouse toward a parked SUV. Holden
testified that he also observed two large items on the ground behind the SUV, the rear door
of the SUV was open, and the engine of the SUV was running. No other persons or vehicles
could be seen as Holden pulled into the driv eway, and all the intern al and external lights
of the warehouse were off. Although Holden did not observe any broken windows, the
garage door of the warehouse was open and from Holden’s vantage point, he would not be
able to view any windows along the back or sides of the warehouse. Likewise, the
possibility that the person walk ing from the open garage d oor to the SUV might be a
warehouse employee is not inconsistent with criminal activity, such as burglary or

2 Portions of Christianson’s brief appear to argue that after Holden pulled into the driveway
leading to the parking lot, but before illuminating the ware house, Holden conducted an
intervening investigation, which dispelled whatever reasonable suspicion may have existed
before Holden activat ed the emergency lights on his patr ol car. We do not adopt this
framework, however, because the video show s that Holden illuminated the warehouse
within seconds of pulling into the driveway. Instead, we analyze whether there was
sufficient reasonable suspicion at the time Ho lden illuminated the warehouse, taking into
account the information obtained during the seconds that lapsed from the moment that
Holden pulled into the driveway until he illuminated the warehouse.
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vandalism. Given the totality of these circumstances, Holden had a reasonable, articulable
suspicion that criminal activity was afoot at the time that he activated his emergency lights
and initiated the investigatory seizure, and we affirm the denial of Christianson’s motions
to dismiss and to suppress evidence.
II. Vindication of Christianson’s Right to Consult an Attorney
Christianson also argues that law enforcement violated his right to consult with an
attorney. Again, we are not convinced and conclude that Christianson’s right to contact an
attorney was vindicated.
A driver arrested for a DWI has a limited right to counsel when deciding whether to
submit to a breath test. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn.
1991). To vindicate this right , law enforcement must, at a minimum, provide the driver
with access to a telephone “and give [] a reasonable time to contact and talk with counsel.”
Id. (citation omitted). A reasonable amount of time “is not a fixed amount of time, and it
cannot be based on elapsed minutes alone.” Mell v. Comm’r of Pub. Safety , 757 N.W.2d
702, 713 (Minn. App. 2008) (citing Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842
(Minn. App. 1992), rev. denied (Minn. Oct. 20, 1992)). We “must balance the efforts made
by the driver against the effort s made by the officer . . . [the ] focus is both on the police
officer’s duties in vindicating the right to counsel and the defendant’s diligent exercise of
the right.” Id. (quoting Kuhn, 488 N.W.2d at 842).
Courts also consider the totality of the circumstances, such as the time of day, how
long the driver has been under arrest, and whether the driver made a good-faith and sincere
effort to contact counsel. Kuhn, 488 N.W.2d at 842-43; Parsons v. Comm’r of Pub. Safety,
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488 N.W.2d 500, 502 (Minn. App. 1992). Generally, defendants are allowed to await
return calls, but they are not given an indefinite amount of time to do so. Palme v. Comm’r
of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995), rev. denied (Minn. Feb. 27, 1996).
If the defendant refuses to contact more than a single attorney or has given up on trying to
contact an attorney, law enforcement officers need not wait any longer. Kuhn, 488 N.W.2d
at 842; see also Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 310 (Minn. App. 1996)
(holding that driver did not make a good-fait h effort to contact an attorney and officer
vindicated driver’s limited right to counsel), rev. denied (Minn. Aug. 6, 1996); Palme, 541
N.W.2d at 345 (determining that 29 minutes was reasonable given defendant’s inaction).
Whether an officer has vindicated a driver’s right to counsel presents a mixed question of
law and fact. Mell, 757 N.W.2d at 712. When the facts are not in dispute, this court reviews
de novo whether an individual’s right to counsel was violated. Id.
Christianson argues that we should reverse as we did in Davis v. Commissioner of
Public Safety , 509 N.W.2d 380 (Minn. App. 2000). In that cas e, after unsuccessfully
attempting to reach an attorn ey using the phonebook, she called her friend, a paralegal,
who agreed to contact an attorn ey on the defendant’s behalf. Id. at 385. When the law
enforcement officer advised the defendant that she needed to decide whether to submit to
the breath test, the defendant requeste d additional time to call her friend. Id. When she
attempted to contact her friend, the line was busy. Id. The law enforcement officer
terminated the defendant’s time to consult with an attorney, and the defendant refused to
submit to a breath test. Id. This court held that law en forcement failed to afford the
defendant a reasonable amount of time to contact an attorney. Id. at 385-86.
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While we recognize some similarities, we conclude that the facts of this case differ
significantly from those in Davis. For instance, during the 24 minutes that Christianson
had to contact an attorney, Holden reminded and encouraged Christianson to use the
phonebook at least three times. Apart from his initial call, Christianson ignored Holden’s
directions and chose not to us e the phonebook or call any of the listed attorneys. In
addition, Christianson did not request additional time, as the defendant in Davis did.
Perhaps most importan tly, the defendant in Davis received a busy signal when she
attempted to return her friend’s call. Davis, 509 N.W.2d at 385. This suggests that both
the defendant and her friend were actively using the telephone when the law enforcement
officer concluded her consultation time. By contrast, Christianson was not actively trying
to contact an attorney, his father, or his stepmother when Holden concluded Christianson’s
consultation time. Instead, after Holden advi sed him to use the phone for the third time,
Christianson engaged in small talk and did not attempt to call anyone. Finally, although
the length of time is not, by itself, determinative, id. at 386, we observe that Christianson
received more time to contact an attorney than did the defendant in Davis.
Given all of these circumstances, it was reasonable for Holden to terminate the
consultation time. See Gergen, 548 N.W.2d at 310; Palme, 541 N.W.2d at 345; Parsons,
488 N.W.2d at 502. Therefore, Holden vindicated Christianson’s limited right to counsel,
and we affirm the district court’s denial of Christianson’s motion to suppress the results of
the chemical breath test.
Affirmed.