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This opinion is nonprecedential except as provided by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
A24-0853

State of Minnesota,
Respondent,

vs.

Erik James Enno,
Appellant.

Filed March 3, 2025
Affirmed
Bentley, Judge

Polk County District Court
File No. 60-CR-22-1376

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

Ronald I. Galstad, East Grand Forks City Attorney, Galstad, Jensen & McCann, PA, East
Grand Forks, Minnesota (for respondent)

Alexander F. Reichert, Reichert Law Office, Grand Forks, North Dakota (for appellant)

Considered and decided by Bentley, Presiding Judge; Slieter, Judge; and Florey,
Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
BENTLEY, Judge
In this direct appeal from a final judgment of conviction for driving while impaired
(DWI), appellant challenges the district court’s denial of his motion to suppress the results
of his chemical breath test. He argues that he was denied the opportunity to consult
privately with his attorney because their call took place within earshot of police officers
and was recorded pursuant to standard police department protocols. We affirm.
FACTS
The relevant facts and procedural history relating to appellant Erik James Enno’s
DWI arrest are undisputed. One evening, a police officer in East Grand Forks initiated a
traffic stop upon seeing a vehicle fail to stop at a stop sign. Enno was driving. While
speaking with Enno, the officer noticed signs of intoxication and a smell of alcohol
emanating from Enno’s car. Enno admitted he had “a beer.” The officer then conducted
field sobriety tests, during which the officer observed various “clues” that Enno was
intoxicated. Meanwhile, another officer arrived to assist. A preliminary breath test yielded
an alcohol concentration of 0.099. Enno was arrested for DWI and transported to the East
Grand Forks Police Department.
The booking room was connected to another small room with a phone. One of the
officers read Enno the Minnesota Implied Consent Advisory, which requires that officers
allow an arrestee to consult an attorney by phone upon request, so long as it does not cause
unreasonable delay. Minn. Stat. § 169A.51, subd. 2(3) (2024). Enno asked to call his
attorney, whose phone number was saved on his cellphone. Enno was permitted to retrieve
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his attorney’s phone number, was informed that the telephone lines were recorded, and was
allowed to call his attorney using the police department’s phone. Both officers remained in
the booking room while Enno spoke with his attorney in the connected room. One officer
testified that, for most of that time, he was setting up a chemical breath test machine
“approximately 12 to 15 feet from where [Enno] was sitting” and could not hear what
Enno’s attorney was saying.
According to that officer, there was “no other place” to allow Enno to call his
attorney. The department does not give DWI arrestees private rooms to make calls, and
officers therefore can monitor arrestees for safety, prevent access to unauthorized items
and areas, and ensure that equipment is not damaged. The officer also explained that t he
East Grand Forks Police Department’s phone lines are recorded as a general practice but
are not actively monitored. The officer had not listened to Enno’s call as it happened or
afterward and was not aware of anyone else who had.
Enno ultimately submitted to the chemical breath test, which revealed an alcohol
concentration of 0.09. Respondent State of Minnesota charged him with two counts of
third-degree driving while impaired, Minn. Stat. §§ 169A.20, subd. 1(1), (5), .26, subd. 1
(2022). After an initial appearance, Enno filed a motion to suppress the results of the test
and dismiss the charges against him because he had been “denied his right to private
telephone access to consult with an attorney.” The motion was heard at two contested
omnibus hearings, and upon determining that Enno’s right to counsel was not violated the
district court denied Enno’s motion in full.
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Before trial, the state amended the charges to one count of fourth-degree
misdemeanor driving while impaired, Minn. Stat. §§ 169A.20, subd. 1(5), .27 (2022). The
parties agreed to proceed to trial on stipulated evidence with the understanding that the
pretrial issue raised in Enno’s motion to suppress “is dispositive or that trial will be
unnecessary if [Enno] prevails on appeal.” See Minn. R. Crim. P. 26.01, subd. 4. The
district court found Enno guilty of fourth-degree DWI, sentenced him to 30 days’
incarceration, and stayed the sentence for one year.
Enno appeals.
DECISION
Enno challenges the district court’s denial of his motion to suppress the results of
his chemical breath test and to dismiss the DWI charge, arguing that he was “denied his
right to consult with . . . counsel before testing, as he was on a recorded phone, in a
supervised room, and was not granted [the] alternative option [of a private phone call] that
he and [his attorney] proposed.”
“When reviewing a pretrial order denying a motion to suppress, we review the
district court’s factual findings for clear error and its legal determinations de novo.” State
v. Ezeka, 946 N.W.2d 393, 403 (Minn. 2020). “Questions of constitutional law are
reviewed de novo.” State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009).
The Minnesota Constitution guarantees an accused “the right . . . to have the
assistance of counsel in his defense.” Minn. Const. art. I, § 6. In the DWI context, the
supreme court has explained that this includes a “limited right to counsel within a
reasonable time before submitting to testing.” Friedman v. Comm’r of Pub. Safety, 473
5
N.W.2d 828, 837 (Minn. 1991). Minnesota statutes further provide that “[r]easonable
telephone access . . . shall be provided following the request of the person restrained and
before other proceedings shall be had regarding the alleged offense causing custody.”
Minn. Stat. § 481.10, subd. 2 (2024).
“[G]iven the limited nature of the right to counsel in [the DWI] context,” the
supreme court has clarified that the presence of a police officer in the room where an
attorney call takes place does not violate the right to speak to counsel before submitting to
chemical testing for blood alcohol. Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268,
269-70 (Minn. 1992). In Campbell, the supreme court noted that, although “the presence
of a police officer in the room when the arrestee talks with the attorney may inhibit the
arrestee,” “police do not have to provide a DWI arrestee with a private telephone” to
vindicate their limited right to counsel because “proper testing procedures generally require
that the officer remain in the presence of an arrestee.” Id. Short of an outright denial of that
right—for example, by refusing to allow the arrestee to call their attorney, State v.
Stradcutter, 568 N.W.2d 545, 546 (Minn. App. 1997)—a DWI arrestee’s rights are
“sufficiently protected by the subsequent exclusion of any overheard statements or any
fruits of those statements.” Campbell, 494 N.W.2d at 269-70.
Campbell forecloses Enno’s argument that the state violated his limited right to
consult an attorney by denying him a private telephone to make the call. Although Enno
and his attorney may have been inhibited from speaking freely because an officer was
present in the room, Enno nonetheless had an opportunity to consult with his attorney
before deciding whether to submit to testing. That is all Campbell requires. Id. at 270.
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Enno attempts to distinguish Campbell because “[the officers] were not only
listening to one end of the phone call, like the officer in Campbell, the call was also being
recorded.” But Campbell’s scope is not so limited. Campbell explains that the remedy for
any improperly “overheard statements or any fruits of those statements” stemming from
the lack of a private telephone conversation is to exclude the statements—not to exclude
the results of any subsequent chemical test. Id. at 269-70. That reasoning applies the same
regardless of whether an officer is in the room or the call is being recorded pursuant to
standard department protocols. Because the state did not attempt to introduce any
statements from the recording of Enno’s call to his attorney or statements that an officer
may have overheard while sitting in the room, Campbell controls.
Moreover, the supreme court has also held that, “[e]ven if the act of recording, but
not listening to, attorney-client phone conversations is an intrusion into the attorney-client
relationship, such an intrusion does not automatically translate into a violation of a
defendant’s right to counsel.” State v. Andersen, 784 N.W.2d 320, 333-34 (Minn. 2010).
For the recording to rise to a violation of a defendant’s right to counsel, the defendant must
show prejudice arising from the intrusion. Id. at 333. Here, the undisputed facts are that no
police department personnel involved in this case listened to the recording. Therefore,
Enno cannot show prejudice resulting from the recording that would amount to a violation
of his right to counsel.
Affirmed.