State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by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
A22-1554

State of Minnesota,
Appellant,

vs.

Nicole Amber Klevgaard,
Respondent.

Filed May 15, 2023
Affirmed
Bratvold, Judge

Clay County District Court
File No. 14-CR-22-1829

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

Brian J. Melton, Clay County Attorney, Megan J. Kelly, Courtney O’Reilly, Assistant
County Attorneys, Moorhead, Minnesota (for appellant)

Melvin R. Welch, Welch Law Firm, LLC, Minneapolis, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Bratvold, Judge; and
Cochran, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this pretrial appeal, appellant State of Minnesota argues that the district court
erred by granting respondent’s motion to suppress her statements to a trooper as taken in
violation of her constitutional rights. The state contends that the district court erred by
2
sustaining respondent’s objection to the state’s proffered evidence at the suppression
hearings. Quoting State v. Pauli, the state urges that “the Minnesota Rules of Evidence do
not apply with full force during suppression hearings.” 979 N.W.2d 39, 43 (Minn. 2022).
Because the district court did not err by sustaining respondent’s objection, we affirm.
FACTS
The following summarizes the facts alleged by the state’s complaint along with
other relevant parts of the district court record. At about 1:30 p.m. on May 26, 2022, a state
trooper was driving on Clay County Road 34 when he saw a car approaching at high speed.
The trooper “clocked” the car going 103 mph in a 55-mph zone. He turned on his
emergency lights, reversed direction, and followed the car, but it accelerated. The trooper
noted the license-plate number and ended the pursuit.
The trooper went to the home of the registered car owner in Felton, where the
trooper saw “the suspect vehicle in the garage and the female driver he had observed fleeing
opened the front door.” The trooper asked respondent Nicole Amber Klevgaard why she
fled, and she replied that “she likes to go fast and that it had been on her bucket list to flee
from the police.” The trooper arrested Klevgaard, and the state charged her with fleeing a
peace officer in a motor vehicle, in violation of Minn. Stat. § 609.487, subd. 3 (2020).
In September 2022, Klevgaard moved the district court to suppress her statements
to the trooper because they were obtained in violation of her rights under the Fifth
Amendment to the U.S. Constitution and Miranda v. Arizona, 384 U.S. 436 (1966). At the
October 3, 2022 omnibus hearing, the state called no witnesses but offered two exhibits:
(1) the trooper’s body-camera video, which, according to the state, captured the “entire
3
interaction” between the trooper and Klevgaard at her home before her arrest, and (2) an
incident report prepared by the arresting trooper. The prosecuting attorney called these two
exhibits a “Pauli packet.” Klevgaard’s attorney objected, arguing that the state had the
burden to show no constitutional violation occurred and asserti ng her constitutional right
to confront witnesses by cross-examination.
In response to Klevgaard’s objection, the prosecuting attorney argued that the
trooper’s testimony would “only lay foundation” by establishing that the body-cam era
video was his and that it was “running” when he met Klevgaard at her home. The
prosecuting attorney contended that Pauli “allows the [district] court to accept this
evidence at [a] pretrial hearing.” The district court stated it would not receive the state’s
exhibits, continued the hearing, and allowed the parties to brief the issue. Neither party
filed a brief.
The district court issued a written order noting that Pauli allows the district court to
consider evidence at an omnibus hearing that the rules of evidence may otherwise preclude.
The district court, however, concluded that Pauli does not support the state’s position that
it “need not call witnesses at an omnibus hearing when the defense raises constitutional
concerns.” The district court’s order set a date for the continued omnibus hearing and
required the “presence and testimony” of the state’s witness.
At the continued omnibus hearing, the parties repeated their respective positions
about the state’s two exhibits. The district court denied the state’s request that it receive
the two exhibits into evidence, found there was “no evidence” showing Klevgaard’s
4
statements were not taken in violation of Miranda, and suppressed the statements. In
response, Klevgaard suggested she would move to dismiss for lack of probable cause.
After the hearing but before any motion to dismiss, the district court issued a written
order suppressing Klevgaard’s statements because “no evidence was received that would
refute the Defendant’s constitutional challenge.” The district court also denied Klevgaard’s
probable-cause challenge, reasoning that the “entire record” established probable cause for
each of the elements of Klevgaard’s fleeing charge.
The state appeals.
DECISION
I. The district court’s order suppressing Klevgaard’s statements will have a
critical impact on the state’s case.

In a pretrial appeal by the state, an appellate court will reverse only if the state can
“clearly and unequivocally show both [1] that the trial court’s order will have a critical
impact on the state’s ability to prosecute the defendant successfully and [2] that the order
constituted error.” State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995) (quotation omitted).
“We view critical impact as a threshold issue and will not review a pretrial order absent
such a showing.” State v. Osorio, 891 N.W.2d 620, 627 (Minn. 2017) (quotation omitted);
see also Minn. R. Crim. P. 28.04, subd. 2(2)(b) (requiring the state to file a critical-impact
statement with its appeal of a pretrial order).
“Critical impact has been shown not only in those cases where the lack of the
suppressed evidence completely destroys the state’s case, but also in those cases where the
lack of the suppressed evidence significantly reduces the likelihood of a successful
5
prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). The critical-impact inquiry
is a fact-dependent determination. See State v. Sexter, 935 N.W.2d 157, 161-62 (Minn.
App. 2019) (describing critical-impact inquiry), rev. denied (Minn. Dec. 17, 2019).
In analyzing whether a district court’s order suppressing evidence will have critical
impact, “an appellate court should first examine all the admissible evidence available to
the state.” Id. at 161. Second, the appellate court should
examine the inherent qualities of the suppressed evidence
itself, its relevance and probative force, its chronological
proximity to the alleged crime, its effect in filling gaps in the
evidence viewed as a whole, its quality as a perspective of
events different from those otherwise available, its clarity and
amount of detail and its origin.

Id. Suppressed evidence “particularly unique in nature and quality is more likely to meet
the critical impact test.” Id. at 161-62.
The state argues that the district court’s decision to suppress Klevgaard’s statements
will have a critical impact on the state’s case. We agree. Conducting the two-part inquiry
described in Sexter, we first examine all the admissible evidence available to the state. In
its brief to this court, the state failed to describe what other potentially admissible evidence
may prove the fleeing charge against Klevgaard. Instead, the state argues that this case is
at an early stage, and therefore, all potentially admissible evidence is not in the record.
Second, we consider the inherent quality of the suppressed statements, which are
described as a confession. Minnesota courts have consistently held that suppressi ng a
defendant’s confession significantly reduces the likelihood of a successful prosecution.
State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (holding suppressed confession had
6
critical impact even when it was not the only evidence in the record of the defendant’s
involvement in a drive -by shooting); State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn.
1990) (holding suppressed confession had critical impact in prosecution for sexual abuse
of a child); State v. Miller, 659 N.W.2d 275, 280 (Minn. App. 2003) (“If suppressed, a
confession ‘normally will significantly reduce the likelihood of a successful prosecution.’”
(quoting Ronnebaum, 449 N.W.2d at 724)), rev. denied (Minn. Jul. 15, 2003).
Klevgaard argues that suppression of her statements lacks critical impact,
contrasting her case with Ronnebaum, a pretrial appeal by the state after the district court
suppressed a confession. The state charged Ronnebaum with sexual abuse of a child ; the
key evidence was the victim’s complaint and Ronnebaum’s confession. Ronnebaum,
449 N.W.2d at 723. While the state’s appeal of the suppression order was pending, a
defense investigator interviewed the victim, and she denied the abuse. Id. The supreme
court held that the suppression of Ronnebaum’s confession would have a critical impact
on the state’s case, observing that even if the state had a strong case, “that does not mean
that the suppression of the confession will not significantly re duce the likelihood of a
successful prosecution.” Id. at 724.
Klevgaard contends that the state has far more evidence in her case compared with
the state’s case in Ronnebaum. But Klevgaard’s case is unlike that in Ronnebaum because
it is unclear what other admissible evidence the state has. Also, the state charged Klevgaard
with fleeing a peace officer, which offense requires as an element that the defendant
“knows or should reasonably know” they were fleeing a peace officer. Minn. Stat.
7
§ 609.487, subd. 3. Klevgaard’s statements to the trooper on her doorstep go directly to her
knowledge that she was fleeing a peace officer.
Finally, Klevgaard’s argument does not overcome Minnesota’s settled caselaw
concluding that the suppression of a defendant’s confession has a critical impact on the
state’s case. See, e.g., Miller, 659 N.W.2d at 280. Thus, we conclude that the district court’s
suppression order will have a critical impact on the state’s ability to prosecute Klevgaard.
II. The district court did not err by suppressing evidence of Klevgaard’s
statements to the trooper.

The district court ruled that with no testimony offered by the state, “and there being
no stipulation by the Defendant for their admission,” it would not receive the state’s two
exhibits, the trooper’s body-camera video and incident report. The district court granted
Klevgaard’s motion to suppress because “no evidence was received that would refute the
Defendant’s constitutional challenge.” The state argues the district court erred by excluding
the two exhibits because it had the discretion to receive the exhibits at a suppression hearing
without a witness offering testimony about the exhibits.
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
‘we review the district court’s factual findings under a clearly erroneous standard and the
district court’s legal determinations de novo.’” State v. Gauster, 752 N.W.2d 496, 502
(Minn. 2008) (quoting State v. Jordan , 742 N.W.2d 149, 152 (Minn. 2007)). When the
facts are undisputed, “our review is entirely de novo.” State v. Burbach, 706 N.W.2d 484,
487 (Minn. 2005).
8
At a suppression hearing, the state has the burden of “establishing that the
challenged evidence was obtained in accordance with the constitution,” State v. Edstrom,
916 N.W.2d 512, 517 (Minn. 2018), and district courts are “tasked with determining
whether evidence was obtained unconstitutionally,” Pauli, 979 N.W.2d at 49.
Klevgaard’s challenge to the admission of her statements to the trooper included
two separate constitutional issues.
First, Klevgaard argued in her motion that the trooper obtained her statements
without giving her a Miranda warning, which is required under the Fifth Amendment to
the U.S. Constitution to be given during a custodial interrogation. State v. Miller ,
573 N.W.2d 661, 670 (Minn. 1998). If, as in Klevgaard’s case, a defend ant’s statement
occurs before their arrest, Miranda requires that the district court determine whether a
reasonable person would understand they are in custody based on the totality of the
circumstances and whether the statement followed interrogation. Id. “An ‘interrogation’
under Miranda refers to (1) ‘express questioning’ or ‘any words or actions on the part of
the police (other than those normally attendant to arrest and custody) ’ that (2) ‘the police
should know are reasonably likely to elicit ’ (3) ‘an incriminating response from the
suspect.’” State v. Heinonen, 909 N.W.2d 584, 589 (Minn. 2018) (footnote omitted)
(quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).
When the state offered two exhibits to meet its burden to show Klevgaard’s
statements were obtained lawfully under Miranda, Klevgaard raised a second
constitutional issue by objecting to the district court’s receipt of the two exhibits without
9
the trooper’s testimony and asserting her confrontation rights. 1 The Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend. VI; accord Minn. Const.
art. I, § 6. With limited exceptions not applicable here, the Confrontation Clause bars the
admission of prior testimonial statements of an unavailable witness who was not subject to
cross-examination. Crawford v. Washington , 541 U.S. 36, 53-54 (2004). Whether the
admission of evidence violates a defendant’s rights under the Confrontation Clause is a
question of law that we review de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn.
2006).
Klevgaard’s Confrontation Clause challenge requires us to determine whether the
statements in the body-camera video and incident report are testimonial. We first consider
the primary purpose of Klevgaard’s conversation with the troo per by “objectively

1 The state argues that a “blanket statement requesting suppression of all evidence obtained
as a result of an unlawful” police action, such as that in Klevgaard’s motion to suppress,
would fail to provide sufficient notice to the state that the trooper’s testimony was
necessary to meet its burden. The state’s brief to this court characterizes Klevgaard’s
demand to cross-examine the trooper at a pretrial hearing as a discovery “tool.” The state
relies on caselaw stating that notice of the legal issues to be raised at an omnibus hearing
is necessary to give the opposing party “a full and fair opportunity to meet its burden.”
State v. Needham, 488 N.W.2d 294, 296-97 (Minn. 1992).
At the first omnibus hearing, the prosecuting attorney offered two exhibits in
response to Klevgaard’s motion and, following Klevgaard’s C onfrontation Clause
objection, urged the district court to accept the two exhibits under Pauli. After this hearing,
the district court issued an order stating that it required “the presence and testimony of the
State’s witnesses at the [continued] omnibus hearing.” Further, the district court’s order
provided that the state needed to produce its witnesses for “cross examination by defense
counsel regarding alleged constitutional violations.” Based on this record, we conclude that
the state had sufficient notice that the trooper’s testimony was required at the continued
omnibus hearing and that the state had a “full and fair opportunity to meet its burden”
before the district court suppressed Klevgaard’s statements.
10
evaluat[ing] the circumstances in which the encounter occurs and the statements and
actions of the parties.” Michigan v. Bryant, 562 U.S. 344, 359 (2011). When a
conversation’s primary purpose is to prove past events potentially relevant to future
prosecution, the statements made during the conversation are testimonial. Id. at 356. The
primary purpose of the trooper’s conversation with Klevgaard at her home was to
investigate the fleeing offense. Consequently, the statements made during this conversation
are testimonial . The district court correctly determined that admitting these statements
without an opportunity for Klevgaard to cross-examine the trooper would violate
Klevgaard’s confrontation rights.
The state contends that the district court should have followed the relaxed procedure
used in probable- cause challenges and therefore should have received the state’s two
exhibits without a witness.
When evaluating a motion to dismiss for lack of probable cause,
district courts may rely on the entire record, including reliable hearsay. Minn. R. Crim. P.
11.04, subd. 1(c); State v. Florence, 239 N.W.2d 892, 900 (Minn. 1976). Minnesota courts
have consistently held that reliance on hearsay in this context does not violate a defendant’s
confrontation rights. E.g., State v. Rud, 359 N.W.2d 573, 577 (Minn. 1984); Florence,
239 N.W.2d at 901-02 (citing Gerstein v Pugh, 420 U.S. 103 (1975)).
We are not persuaded to extend the relaxed procedure in Florence to the
circumstances here for two reasons. First, the supreme court has declined to extend the
relaxed procedure used in Florence to suppression hearings, reasoning that doing so would
violate a defendant’s confrontation rights. State v. Terrell, 283 N.W.2d 529, 531 (Minn.
1979) (“The trial court, erroneously relying on State v. Florence, 306 Minn. 442,
11
239 N.W.2d 892 (1976), which dealt with the issue of probable cause to support a
complaint, ruled that [for a suppression hearing] the state could rely on the transcript
without calling the witnesses.”); State v. Grey, 256 N.W.2d 74, 77 (Minn. 1977) (holding
a defendant has a right to be present and confront witnesses at a pretrial suppression
hearing).
Second, we disagree with the state’s argument that Pauli alters our legal analysis of
Klevgaard’s Confrontation Clause challenge. Indeed, we agree with the district court that
Pauli does not support the state’s position that “it need not call witnesses at an omnibus
hearing when the defense raises constitutional concerns.”
In Pauli, the supreme court held that the district court did not err by considering
hearsay evidence—a letter from a third party about disputed evidence—when ruling on a
suppression motion. 979 N.W.2d at 50. The supreme court reasoned that the suppression
motion involved preliminary fact-finding to determine the admissibility of the challenged
evidence. Id. at 49. Because a district court is “not bound to follow the Rules of Evidence”
when making these preliminary findings, the district court did not abuse its discretion by
relying on hearsay to rule on the suppression motion. Id . at 50; accord Minn. R. Evid.
104(a) (“Preliminary questions concerning . . . the admissibility of evidence shall be
determined by the court . . . . In making its determination it is not bound by the rules of
evidence except those with respect to privileges.”). But the supreme court also noted that
district court s “can and should still exclude evidence they deem unreliable.” Pauli,
979 N.W.2d at 50.
12
Pauli does not discuss or consider a Confrontation Clause challenge to the
admission of testimonial evidence. Nor did Pauli expressly or implicitly overrule the long
line of Minnesota caselaw declining to extend the relaxed procedure used in Florence to
suppression hearings and reasoning that doing so would violate a defendant’s confrontation
rights, see, e.g., Terrell, 283 N.W.2d at 531. And Pauli expressly recognizes that a district
court can and should exercise its discretion to exclude evidence it considers unreliable. Id.
In other words, Pauli does not require a district court to admit all hearsay evidence offered
by the state at a suppression hearing. The district court’s decision to require the trooper’s
testimony has ample support in caselaw. Thus, we conclude that the district court did not
err by excluding the state’s two exhibits and suppressing Klevgaard’s statements to the
trooper.
Affirmed.