Opinion
No. C8-02-126.
Filed September 10, 2002
Appeal from the District Court, Carver County, File No. C1011683.
Richard L. Swanson, Attorney at Law, (for appellant)
Mike Hatch, Attorney General, Francis Green III, Assistant Attorney General, (for respondent)
Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Lisa Pishney appeals from a district court order sustaining the revocation of her driving privileges under the implied-consent law. Pishney claims that the district court erred in finding that she voluntarily consented to entry of a law enforcement agent into her house. Because the district court's finding of voluntary consent is supported by the record, we affirm.
FACTS
A police officer arrested Lisa Pishney at her home for driving while under the influence of alcohol. Shortly after noon on the day of the arrest, a Chaska police officer responded to a dispatch call that a "possible DK [drunk], intoxicated driver" had just driven away from a local SuperAmerica store. The dispatcher described the car as blue with Minnesota license plate DEE 076. The officer's squad computer confirmed that the license number traced to a blue hatchback. After about ten minutes of attempting to locate the car, the officer obtained the address of the car's registered owner, Lisa Ann Pishney, and drove to Pishney's residence.
The officer parked his squad car in a lot near Pishney's residence and approached her housing unit. When he reached the front door, he saw that the main door was open and a woman was inside the residence, about ten to twelve feet from the door. The uniformed officer identified himself, said he was with the Chaska Police Department, and asked, "Can I come in?" Pishney opened the door and responded, "Come on in." The officer then asked Pishney if she had just left the SuperAmerica. She told him that she had driven her car to the SuperAmerica to get cigarettes.
At the contested revocation hearing, Pishney disputed only that she had voluntarily consented to the officer's entering her residence. The district court found that "[t]he record is conclusive that the search was consensual." Pishney appeals the order sustaining her license revocation.
DECISION
A warrantless entry is constitutional if it is made with the voluntary consent of a person in control of the premises. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045 (1973); State v. Lotton, 527 N.W.2d 840, 843 (Minn.App. 1995), review denied (Minn. Apr. 18, 1995). We subject voluntary consent claims to "careful appellate review." State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (quoting State v. George, 557 N.W.2d 575, 580 (Minn. 1997)). The state has the burden of proving, by a preponderance of the evidence, that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792 (1968); State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999).
Whether consent was voluntary is a factual question and is based on the totality of the circumstances. George, 557 N.W.2d at 579. Consent is voluntary if it is "the product of an essentially free and unconstrained choice by its maker," rather than the product of duress or coercion, express or implied. Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2047. Consent is involuntary, on the other hand, if it results from circumstances that overbear the consenting party's will and impair his or her capacity for self-determination. Id. at 225-26, 93 S.Ct. at 2047.
The district court found that the record was conclusive that the search was consensual and that no other conclusion could be drawn. The district court's finding is supported by the record. When the officer asked if he could come in, Pishney opened the screen door and said, "Come on in." No evidence suggests that Pishney was confused or unable to ascertain the significance of her actions when she let the officer into the house. Neither does the record suggest that Pishney lacked the maturity, education, or intelligence necessary to give effective consent. See United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (describing totality of circumstances to include age, intelligence, condition, experience, and education of person consenting). Most significantly, the record contains no evidence of coercion, duress, deception, promises, threats, or any other undue influence that would affect Pishney's consent Id. (listing behavior or actions that are considered coercive and make consent involuntary); State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (emphasizing that consent "must be received, not extracted").
Pishney argues that her consent was involuntary because: (1) she did not know the nature of the investigation, (2) she did not know that she was free to refuse entry, and (3) her intoxication affected her judgment. She also argues that, because the officer did not know the name of the informant when he approached her house, his investigation violated her constitutional rights.
None of Pishney's arguments has merit. First, an officer is not obligated to explain the purpose of his request for entry to establish that consent to his entry was voluntary. See United States v. Crowder, 62 F.3d 782, 787 (6th Cir. 1995) (holding that style of officer's question does not establish coercion without objective evidence of improper conduct). Second, police officers are not obligated to advise people of their right to refuse consent. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048 (subject need not be told of right to refuse consent in order for consent to be voluntary); Dezso, 512 N.W.2d at 881 (same). Third, the record does not establish a basis for Pishney's claim of a diminished capacity that would defeat consent. Only the arresting officer testified at the hearing, and Pishney declined chemical testing. But even if the record had provided predicate evidence of intoxication, intoxication alone is not enough to establish that consent is involuntary. Smallwood, 594 N.W.2d at 155 (holding consent voluntary despite defendant's intoxication when record contained no evidence that police acted in threatening manner or dealt with defendant in any way other than professionally).
Finally, Pishney's argument about the officer's lack of knowledge of the name of the informant is flawed in four ways. The argument extends beyond the scope of the hearing, which was confined to the sole issue of consent; it is an argument that relates to probable cause, not to consent; the officer testified that the informant's identity was later confirmed; and it ignores the principle Pishney concedes, that an officer may legally walk up to a person's door to ask a question. See State v. Crea, 305 Minn. 342, 346, 233 N.W.2d 736, 739 (1975) (police with legitimate business may enter areas of the curtilage that are impliedly open to public use).
Pishney appears to be arguing that because officers cannot arrest a person for committing a misdemeanor offense outside their presence, they likewise cannot investigate a misdemeanor offense that occurred outside their presence. Minn. Stat. § 629.34 subd. 1(c)(1) (2000); Windschitl v. Comm'r of Pub. Safety, 355 N.W.2d 146, 147 (Minn. 1984). Minnesota, however, makes an exception for the misdemeanor offense of driving while under the influence of alcohol. Minn. Stat. § 169A.40, subd. 1 (2000). In Minnesota, "[a] peace officer may lawfully arrest a person for violation of section 169A.20 (driving while impaired) * * * without a warrant upon probable cause, without regard to whether the violation was committed in the officer's presence." Id.(emphasis added).
The record fully supports the district court's determination on the sole issue that was contested. The Chaska police officer's entry into Pishney's house was voluntary.