Minnesota Reports

Unpublished

STATE v. GONZALEZ, A05-2151 (Minn.App. 1-9-2007) State of
Minnesota, Respondent, v. Elvira Gonzalez, Appellant. No.
A05-2151. Minnesota Court of Appeals. Filed January 9,
2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] This opinion will be unpublished and may not
be cited except as provided by Minn. Stat. §
480A.08, subd. 3 (2004).

Appeal from the District Court, Rock County, File No.
K2-04-103.

Lori Swanson, Attorney General, St. Paul, MN, and Donald
R. Klosterbuer, Rock County Attorney, MN, (for respondent).

John M. Stuart, State Public Defender, Sara L. Martin,
Assistant Public Defender, Minneapolis, MN, (for
appellant).

Considered and decided by KLAPHAKE, Presiding Judge; WORKE,
Judge; and ROSS, Judge.

UNPUBLISHED OPINION

ROSS, Judge.

This case arises from the arrest of a passenger after a
traffic stop and search revealed 28 pounds of marijuana
within the pickup truck’s passenger compartment. Elvira
Gonzalez appeals from her conviction of third-degree
controlled-substance crime for possession of marijuana
following a fact-stipulated trial. She argues that the state
trooper exceeded the scope of the traffic stop for speeding
when he asked the driver for consent to search the truck
after issuing a warning for the speeding violation because
the trooper lacked reasonable suspicion of other criminal
activity. She also argues that the trooper lacked probable
cause to arrest her after discovering the marijuana because
she was merely a passenger and no facts connected her to
the marijuana. She maintains that she unequivocally invoked
her right to counsel during a custodial interrogation and
that her statements should have been suppressed. Because we
conclude that the trooper had reasonable suspicion to
expand the scope of the stop and probable cause to arrest,
we affirm in part. But because the interviewing officers’
questioning violated Gonzalez’s right to counsel, we
reverse the district court’s denial of Gonzalez’s motion to
suppress her post-arrest interview statements and remand
for a new trial.

FACTS

State Trooper Gary Nordseth saw a green pickup truck
speeding on Highway 23 in May 2004. He pulled the truck
over and identified the driver from her Colorado driver’s
license as Rosa Prado. He noticed that an unfolded United
States road map was on the rear seat, food wrappers and
dirty clothes, including undergarments, were strewn about,
and a bed pillow and a cell phone were also inside the
truck.

The truck had Iowa license plates. Prado told the trooper
that her uncle, David Rios, lives in Iowa and owns the
truck. She said that she and Gonzalez were traveling from
Pipestone, Minnesota, to Sioux Falls, South Dakota. When
the trooper asked Prado why she passed Interstate 90, which
would have taken her toward Sioux Falls, Prado answered that
she did so because the trooper’s red lights were activated.

Trooper Nordseth returned to his car to write a warning
citation for speeding and to verify the truck’s
registration and Prado’s license status. The dispatcher
verified that Prado’s license was valid and that the truck
was registered to Rios, but noted that the vehicle
registration indicated a black truck rather than a green
one.

Trooper Nordseth returned Prado’s license and explained the
warning. He then asked if alcohol, weapons, or drugs were
in the truck. Both Prado and Gonzalez responded that there
were not. Trooper Nordseth asked Prado if she would object
if he were to “take a quick look” in the truck. Prado said
“no,” and both she and Gonzalez stepped out. Less than four
minutes into his search, Trooper Nordseth discovered in the
driver’s door pocket the shell of an ink pen coated with a
white powdery residue. He showed it to Prado and asked what
it was for. Prado responded that she did not know and,
after Nordseth commented on the powder, Prado said that she
did not do drugs. The trooper searched more and discovered
hidden in a rear compartment 13 bricks of a substance that
appeared to be marijuana, individually wrapped in brown
cellophane. Trooper Nordseth arrested Prado and Gonzalez
and called for a tow truck. He checked on the opposite side
of the vehicle and discovered another 13 bricks of
suspected marijuana and a digital scale. A canine search
later revealed more suspected drugs for a total of 27
bricks, together weighing more than 28 pounds. Laboratory
tests confirmed that the bricks were marijuana.

Trooper Nordseth and a deputy, Brian McCarthy, conducted a
taped interview of Gonzalez at the county jail. Deputy
McCarthy advised Gonzalez of her Miranda rights and asked
if she would answer questions. Gonzalez answered, “No, I
want . . . a lawyer.” Deputy McCarthy responded, “Okay.
Then the conversation will end.”

But the conversation did not end. Gonzalez and the officers
continued to discuss her right to counsel, and the officers
told her that she would not get a lawyer that night but
that one would be appointed when she went to court. The
conversation continued in piecemeal exchanges between
Gonzalez and the officers, and Gonzalez eventually agreed
to answer questions. She then made statements regarding her
knowledge of the marijuana.

The state charged Gonzalez with conspiracy and with
third-degree controlled-substance crime for possession.
Gonzalez moved to suppress the physical evidence and her
custodial statements, challenging the stop, her continued
detention after the trooper issued the warning citation for
speeding, the basis for the trooper’s request for consent
to search, the substance of the Miranda warning before
questioning, and the officers’ noncompliance with her
request for counsel. Prado filed a similar motion to
suppress, and the district court held a combined contested
omnibus hearing on both motions. It denied Gonzalez’s
motion, finding that the trooper had reasonable,
articulable suspicion of other illegal activity to justify
expanding the scope of the stop, that Gonzalez consented to
the search, and that she agreed to speak with the officers
after being informed of her Miranda rights.

Gonzalez waived her right to a jury trial to expedite the
appeal of the district court’s denial of her motion to
suppress, following the procedure outlined in State v.
Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980), and Minn.
R. Crim. P. 26.01, subd. 3. The parties submitted the
matter to the district court on stipulated facts. The state
dismissed the conspiracy charge, and the court found
Gonzalez guilty of third-degree controlled-substance crime.
It sentenced her to 21 months’ incarceration, staying
execution of all but 180 days, and imposed a $1,565 fine.
The district court stayed the entire sentence pending
Gonzalez’s appeal.

DECISION

I

Gonzalez argues that the district court erred when it
failed to invalidate the vehicle search on constitutional
grounds because the trooper impermissibly expanded the
scope of the stop when he asked for consent to search. When
reviewing pretrial orders on motions to suppress evidence,
this court independently reviews the facts and determines,
as a matter of law, whether the district court erred in its
decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
But this court accepts the district court’s findings of
fact unless they are clearly erroneous. State v. Britton,
604 N.W.2d 84, 87 (Minn. 2000). Because Gonzalez stipulated
to the facts at trial, however, our review of the legality
of the expansion of the stop is entirely de novo. See Berge
v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985)
(observing that de novo standard of review applied when
facts were not at issue and only issue was whether
officer’s observations provided legal basis for stop). A
district court’s determination that reasonable, articulable
suspicion of unlawful activity existed to justify a limited
investigative stop is also reviewed de novo. Britton, 604
N.W.2d at 87.

The federal and state constitutions prohibit unreasonable
searches. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. Both require that the scope of a traffic-stop
investigation be limited to the justification for the stop.
State v. Askerooth, 681 N.W.2d 353, 364 (Minn. 2004); State
v. Wiegand, 645 N.W.2d 125, 135-36 (Minn. 2002). And the
Minnesota Constitution requires reasonable, articulable
suspicion of other criminal activity before an officer may
expand the scope of the initial stop by requesting consent
to search. State v. Fort, 660 N.W.2d 415, 418-19 (Minn.
2003). If the driver’s responses and the circumstances of
the stop “give rise to suspicions unrelated to the traffic
offense, an officer may broaden his inquiry and satisfy
those suspicions.” State v. Syhavong, 661 N.W.2d 278, 282
(Minn.App. 2003) (quotation omitted).

We must therefore determine whether Trooper Nordseth had
reasonable suspicion of criminal activity unrelated to
speeding to justify requesting consent to search the
passenger compartment of the pickup truck. We recognize
that many police officers have substantial training and
experience in detecting crime, and so “[i]n arriving at a
reasonable suspicion of criminal activity, an officer may
make inferences and deductions that might elude an
untrained person.” Id. Based on our review of the record,
Trooper Nordseth had reasonable suspicion that Prado and
Gonzalez possessed narcotics within the truck. He had 15
years’ experience as a trooper with 56 drug-related arrests
from traffic stops in the previous 7 years and over 100
drug arrests during his career. He testified to four
factors that combined to lead him to suspect drug
possession here.

The trooper first noted that his training and experience
alerted him to the condition of the truck’s interior. Its
contents suggested that the occupants had not left the
truck unattended. He observed an unfolded U.S. road map,
food wrappers, dirty clothing, undergarments, a bed pillow,
and a cell phone. The trooper testified that persons
transporting expensive illegal drugs across the country
typically will remain in their vehicle; they will often
sleep in it rather than in a hotel room, eat in it rather
than in a restaurant, and change their clothes in it rather
than at a rest stop. He opined that this type of drug
courier is often “more or less living out of [the]
particular vehicle.” Trooper Nordseth had observed
different combinations of the same items he saw in the
truck during other traffic stops that resulted in narcotics
arrests.

Second, Trooper Nordseth testified that Prado and Gonzalez
seemed deceptive about their destination. He noted that
they had passed the interstate highway that would have
taken them to their supposed destination of Sioux Falls.
His training and experience led him to believe that
couriers are often deceptive to law enforcement about their
actual destination. The trooper was not convinced by Prado’s
explanation that she drove past the exit because she saw
the trooper’s red lights; he testified that it is very rare
in his extensive experience for a driver to change her
intended route when being stopped.

Third, Trooper Nordseth noted that the registered owner of
the truck lives in another state and was not present. This
raised his suspicions because he believed that the owner of
a vehicle used to transport large quantities of drugs will
often be absent to avoid forfeiture of the vehicle if
law-enforcement officers locate the drugs.

Fourth, the vehicle color also concerned Nordseth. He noted
that the truck’s registration specified that it was
black?not green, which was the color of Prado’s truck. He
explained that couriers who make multiple deliveries may
alter the vehicle’s appearance to avoid attention during
frequent visits to the same area.

Although Gonzalez acknowledges that these four factors “fit
well within the DEA’s drug courier profile,” she claims
that most also have an explanation unrelated to drugs. She
is undoubtedly correct, but Trooper Nordseth did not
consider the factors in isolation. He testified that no one
factor would have given him reasonable suspicion of drug
possession, but the combination of factors raised his
suspicion and led him to request consent to search. Trooper
Nordseth’s approach mirrors our consideration of the
totality of the circumstances and the rational inferences
available from the known facts that would create a
reasonable, articulable suspicion. See State v. Martinson,
581 N.W.2d 846, 852 (Minn. 1998) (noting that factors in
their totality created reasonable suspicion even though no
single factor was independently suspicious). We therefore
are unpersuaded by Gonzalez’s contention that the four
factors do not support reasonable suspicion of drug
possession.

Gonzalez also calls our attention to facts that suggest
that the trooper began suspecting drugs before all four
factors were known to him. But an officer’s reasonable
suspicion must be objectively appropriate in light of the
facts available when the search or seizure occurs.
Askerooth, 681 N.W.2d at 364. Generally, an officer’s
subjective intentions and beliefs are irrelevant when
analyzing the validity of a search. See, e.g., State v.
Everett, 472 N.W.2d 864, 867 (Minn. 1991) (noting that “if
there is an objective legal basis for an arrest or search,
the arrest or search is lawful even if the officer making
the arrest or conducting the search based his or her action
on the wrong ground or had an improper motive.”). We reject
Gonzalez’s implicit suggestion that an officer violates the
Constitution if he develops a personal, subjective
suspicion of criminal activity before he develops a
reasonable, articulable suspicion of criminal activity. The
constitutional protection arises when an officer engages in
an unsupported liberty and privacy intrusion, not during
the gradual, subjective development of suspicion before
police action.

We agree with the district court’s decision that the
totality of the circumstances, particularly the four
observations filtered through Trooper Nordseth’s training
and experience, supports a reasonable, articulable
suspicion of other illegal activity to justify expansion of
the stop. The trooper had a sufficient basis to request that
the driver consent to a vehicle search.

II

Gonzalez argues that even if Trooper Nordseth had
reasonable, articulable suspicion to expand the traffic
stop, his thorough search violated her privacy rights
because it exceeded the driver’s consent to take a “quick
look.” We do not agree.

The scope of a search is limited to the terms of its
authorization. State v. Powell, 357 N.W.2d 146, 149
(Minn.App. 1984), review denied (Minn. Jan. 15, 1985). But
the scope of consent to search is evaluated under a
standard of objective reasonableness. Florida v. Jimeno,
500 U.S. 248, 251, 111 S. Ct. 1801, 1803 (1991); State v.
Thompson, 578 N.W.2d 734, 740 (Minn. 1998). Consent may be
implied by the circumstances or from a person’s words,
gestures, and conduct. Powell, 357 N.W.2d at 149. A
district court’s determination of consent will not be
overturned on review unless it is clearly erroneous. State
v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990).

Here, the district court found that Prado did not object,
and both Gonzalez and Prado voluntarily exited the truck
upon Trooper Nordseth’s request for consent. The district
court reasonably concluded that Gonzalez consented to the
search. According to the record, Trooper Nordseth searched
the truck for slightly less than four minutes before
finding the shell of a pen with possible drug residue on it.
Prado’s spontaneous blurt — “I don’t do drugs”
— in response to the trooper’s inquiry about the pen
was sufficient to confirm the trooper’s suspicion that the
powdery residue likely was cocaine. This unsolicited
reference, along with the trooper’s personal experience and
suspicions about the powdery tube, justified a full search
of the car because “the lawful discovery of drugs or other
contraband in a motor vehicle gives the police probable
cause to believe that a further search of the vehicle might
result in the discovery of more drugs or other contraband.”
State v. Bigelow, 451 N.W.2d 311, 312-13 (Minn. 1990).

While we are somewhat troubled by the trooper’s choice of
the words “quick look” rather than “search,” believing that
the better practice is to unambiguously describe the
request so that the person consenting understands just what
she is consenting to, we find under the circumstances of
this case that the trooper did not exceed the scope of
consent. Trooper Nordseth had inquired about alcohol,
weapons, and drugs in his request to take a quick look
related to those items. A lawful search “extends to the
entire area in which the object of the search may be
found.” United States v. Ross, 456 U.S. 798, 820 102 S. Ct.
2157, 2170 (1982). Having been given the consent to look
for alcohol, weapons, and drugs, the two occupants
effectively consented to Trooper Nordseth’s look into any
areas where those items might be found.

Regarding the duration of the search, the approximately
four minutes it took Trooper Nordseth to find the powdery
tube and hear Prado’s impulsive reference to drugs in
relation to that tube falls within a reasonable period,
consistent with a “quick” look into the car. Additionally,
neither Prado nor Gonzalez withdrew or expressly limited
their consent during those four minutes to suggest that the
search extended beyond their understanding of “quick.” See
United States v. Siwek, 453 F.3d 1079, 1085-86 (8th Cir.
2006) (holding that 45 minutes from time of consent until
trooper discovered drugs did not exceed scope of consent
where driver “made no effort to withdraw or limit the scope
of his consent and did not protest in any manner the
continuation of the search”); United States v.
Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir. 1978)
(upholding search as within scope of consent to “look
inside” truck where defendant made no attempt to retract or
narrow his consent). The search here was within the scope
of Prado’s and Gonzalez’s consent as to both area and
duration.

III

Gonzalez next argues that Trooper Nordseth lacked probable
cause to arrest her for possession of marijuana because no
drugs were found on her person, she was not the driver, she
did not attempt to flee, she made no furtive movements, and
the marijuana was discovered in the back seat in closed
compartments. Gonzalez raises this issue for the first time
in this appeal. A suppression issue not raised at the
omnibus hearing is deemed waived. State v. Brunes, 373
N.W.2d 381, 386 (Minn.App. 1985), review denied (Minn. Oct.
11, 1985). At the outset of the omnibus hearing, Gonzalez’s
counsel told the court that the issues concerned the basis
for the stop, the continued detention after the stop, the
search of the truck, and the post-arrest statements made.
Because Gonzalez did not raise this issue in her motion to
suppress or at the omnibus hearing, it is waived and we do
not reach its merits on this appeal.

IV

Gonzalez contends finally that the district court erred by
not suppressing her post-arrest statements to police as
fruit of an interrogation that violated her rights under
the Fifth Amendment. She challenges the district court’s
finding that she reinitiated conversation after she
initially invoked her right to counsel during her interview
with police. Gonzalez argues that the police impermissibly
reinitiated questioning after she invoked her right to
counsel. We agree that Gonzalez’s statements to police
should have been suppressed.

The Constitution confers on a criminal suspect the right to
counsel and not to “be compelled in any criminal case to be
a witness against himself.” U.S. Const. amends. V-VI. Once
a person in custody invokes her right to counsel, all
police interrogation must cease. Edwards v. Arizona, 451
U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981); State v.
Miller, 573 N.W.2d 661, 671 (Minn. 1998). Interrogation may
resume only if the person later waives her right by
reinitiating conversation with the police. Miller, 573
N.W.2d. at 672. But the waiver must be knowing,
intelligent, and voluntary under the totality of the
circumstances. Id. In other words, “[o]nce an accused
invokes a right to counsel, he or she cannot be subjected
to further interrogation by police until counsel is
provided, unless the accused initiates further
communication with police and then waives the right he or
she previously invoked.” State v. Staats, 658 N.W.2d 207,
214 (Minn. 2003). To establish voluntariness, it is not
enough that the accused agree to speak again with police;
the state must demonstrate that interrogating officers
first discussed the previously invoked right to counsel to
support the state’s burden to show that the accused
“affirmatively acknowledges that he or she is revoking a
previously invoked right to counsel.” Id. (holding state
did not meet its burden when officers regave Miranda
warning but failed to discuss with suspect his previously
invoked right to counsel).

This court reviews findings of fact surrounding a
purported Miranda waiver for clear error, and it reviews
legal conclusions based on those facts de novo, to
determine whether the state has shown by a fair
preponderance of the evidence that a suspect’s waiver was
knowing, intelligent, and voluntary. State v. Burrell, 697
N.W.2d 579, 591 (Minn. 2005). Appellate courts employ a
three-step analysis:

First, we determine whether [the suspect] invoked his
right to counsel before police attempted to take the
statement. Second, if he invoked his right to counsel, we
examine whether [the suspect] reinitiated conversation
with police. Third, if he reinitiated conversation with
police, we consider whether he properly waived his invoked
right to counsel before the police proceeded to take the
statement.

Staats, 658 N.W.2d at 213 (citations omitted). Not at all
inconsistent with the dissent’s deference to the district
court’s factual findings, we conduct an independent review
to determine whether the suspect reinitiated conversation
with police and waived her previously invoked right to
counsel. Id.

It is clear from the audio recording and transcript of the
custodial interrogation that the district court accurately
determined that Gonzalez unequivocally invoked her right to
counsel after being advised of her Miranda rights. The
officers had read the Miranda advisory and asked Gonzalez
if she would answer questions. Their advisory appropriately
informed her of her right to remain silent and to have a
lawyer present while she is being questioned. Gonzalez’s
answer, “No, I want my — a lawyer,” clearly invoked
her right to counsel.

But the balance of the discussion of rights was materially
muddled. One officer responded, “Okay. Then the
conversation will end.” Gonzalez was next to speak,
expressing uncertainty about the circumstances. One of the
officers responded, and again indicated an end to the
discussion, saying, “Then we’ll end this conversation.
Okay. We’ll send you back.” And again, Gonzalez inquired
further, “Am I getting a lawyer or what?” The second step
of our analysis in this case does not require us to
determine whether Gonzalez herself “initiate[d] further
communication, exchanges, or conversations with the police”
regarding the substance of the arrest. State v. Munson, 594
N.W.2d 128, 140 (Minn. 1999). In reviewing the exchanges
between the officers and Gonzalez discussing her rights, we
observe that Gonzales did not revoke her previously invoked
right to counsel, and one of the officers also misspoke in
responding to some of Gonzalez’s comments and
questions?effectively misadvising her of her rights. It is
this failure and miscommunication that leads us to conclude
that Gonzalez did not knowingly and intelligently waive her
previously asserted right to counsel.

Deputy McCarthy told Gonzalez that, “Since you wanted to
talk to a lawyer — we can’t bring a lawyer in here.
. . . So it’s cut off.” Moments later, the following
confusing exchange took place just before Gonzalez agreed
to answer questions:

[McCarthy:] Okay. Okay. . . . [M]aybe you misunderstood
the questions.

[Gonzalez:] No, I understand, but, I mean, I —

[McCarthy:] You want to —

[Gonzalez:] — like, I’m really familiar to this,
you know, I mean —

[McCarthy:] We’re just gonna ask you some questions
—

[Gonzalez:] Okay.

[McCarthy:] — as far as, you know, you can have an
attorney here if you want ’em, you know, without. You
don’t have to have an attorney here.

[Gonzalez:] Okay. . . . But then they give me court am I
gonna have an attorney —

[McCarthy:] Yea[h], they’ll — you can get a
court-appointed attorney to represent you for all these
court, you know —

[Gonzalez:] Right.

[McCarthy:] For now, you know, —

[Gonzalez:] I just gotta answer some questions now.

[McCarthy:] Yeah.

[Gonzalez:] Oh, okay.

[McCarthy:] And you can have an attorney but you don’t
have to.

[Gonzalez:] Oh, okay.

[McCarthy:] But you’re — you can. I mean, that’s
totally up to you. Do you kinda understand that now?

[Gonzalez:] Well, I mean, yes, I can answer questions
—

[Nordseth:] Do you want to answer some question now
without your lawyer?

[Gonzalez:] Yea[h], I mean, it’s okay.

On this dialogue the record fails to show that Gonzalez
affirmatively acknowledged that she was revoking her
previously invoked right to counsel. Here, as in Staats,
neither officer discussed with Gonzalez her previously
invoked right to counsel. Staats, 658 N.W.2d at 214.

Additionally, the record does not support the conclusion
that Gonzalez’s waiver was knowing and intelligent. A
waiver is knowingly and intelligently made only if it is
made “with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to
abandon it.” Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct.
1135, 1141 (1986). Although the terms of the Miranda
advisory are not themselves constitutional rights, it is
well settled that they are required “measures to insure
that the [suspect’s] right against compulsory
self-incrimination [is] protected.” New York v. Quarles,
467 U.S. 649, 654, 104 S. Ct. 2626, 2630, (1984) (quotation
omitted). At a minimum, police must advise the suspect that
she has the right to remain silent and the right to an
attorney present during custodial interrogation. Edwards,
451 U.S. at 481-82, 101 S. Ct. at 1883. Here, the exchange
is anything but clear, and can be interpreted to suggest
that Gonzalez must answer questions “now” without a
court-appointed attorney. This conflicted with the accurate
Miranda advisory that Gonzalez previously heard, before she
had invoked her right to counsel. A valid waiver after
invoking the right to counsel is not established even by
showing that the accused responded to a second, accurate
Miranda advisory. Staats, 658 N.W.2d at 214. And Gonzalez
received only an inaccurate second description of her
rights before agreeing to answer questions. The facts here
compare unfavorably with those considered in State v. Earl,
where the interrogating officer appropriately re-engaged
the suspect only after first repeating the Miranda advisory,
then discussing the suspect’s prior invocation of the right
to counsel, and finally obtaining a waiver of those rights.
State v. Earl, 702 N.W.2d 711, 718 (Minn. 2005). We do not
see in this record that the state has met its heavy burden
to prove a valid Miranda waiver. See State v. Hannon, 636
N.W.2d 796, 806 (Minn. 2001) (discussing state’s burden to
prove suspect waived Miranda rights).

We have carefully considered the record and agree with the
district court’s conclusion that the officers were not
coercive in their tone or manner. And nothing in the record
suggests that either officer had any intent to mislead. But
the officers’ failure to have Gonzalez affirmatively
acknowledge that she was revoking her previously invoked
right to counsel, compounded by one of the officer’s
inadvertent misdirective that Gonzalez has “just gotta
answer some questions now,” leads us to conclude that
Gonzalez’s constitutional rights to remain silent and to
counsel during interrogation were violated when police
obtained her statements. We hold that the statements
elicited in the interrogation therefore should have been
suppressed.

Affirmed in part, reversed in part, and remanded.

WORKE, Judge (concurring in part, dissenting in part)

I respectfully dissent from the majority opinion that
appellant’s statements elicited during the police
interrogation should have been suppressed. The majority
concludes that, from its review of an audio recording and
the written transcript of the custodial interrogation,
appellant “unequivocally” invoked her right to counsel after
being advised of her Miranda rights, and that the officers
failed to have appellant affirm that she was revoking her
right to counsel before proceeding forward with
questioning. This court reviews findings of fact
surrounding a purported Miranda waiver for clear error, and
reviews legal conclusions based on those facts de novo, to
determine whether the state has shown by a fair
preponderance of the evidence that the suspect’s waiver was
knowing, intelligent, and voluntary. See State v. Burell,
697 N.W.2d 579, 591 (Minn. 2005).

It is undisputed that appellant invoked her right to
counsel after being advised of her Miranda rights. After
appellant invoked her right to counsel, the officer stated,
“Okay. Then the conversation will end.” Appellant continued
the conversation by saying, “Cuz [sic] I really don’t know
what . . .” Hence, appellant initiated further
communications with the police. The conversation
thereafter, however, did not consist of interrogation but
rather involved the police attempting to clarify and
explain to appellant when she would have a lawyer appointed
and emphasizing that they could not continue to speak with
her because she invoked her right to counsel. The district
court found that appellant again reinitiated the
conversation when she stated, “Cuz [sic] I can talk, but I
mean . . . do I have to have a lawyer here?” Immediately
after, the police reiterated that “you have to say that you
. . . you want to talk to us. Otherwise we can’t talk to
you.” Appellant responded, “Well, yeah, I can talk to you
but, I mean, I never been (indiscernible) last year was my
first time and . . .” Nonetheless, the conversation ended
and the officers stopped the tape recording. Three minutes
later, however, the officers started the tape recording
again, and stated, “Okay . . . maybe you misunderstood the
[Miranda] questions.” Finally, before proceeding with the
interrogation, the officers asked appellant point blank,
“Do you want to answer some question[s] now without your
lawyer?” Appellant responded “Yeah, I mean, it’s okay.”
Because appellant’s statements could be considered to show
a willingness and desire for general discussion, the
district court did not err in finding that appellant
reinitiated conversation.

In my opinion, the district court is in a better position
to decide whether an individual has “unequivocally” revoked
a previously invoked right to counsel. In finding that
appellant voluntarily, intelligently, and knowingly waived
her right to counsel, the court noted that the officers
were not coercive in their tone or manner when they spoke
to her, that appellant asserted that she understood her
rights, and that her tone and responses indicated she was
not confused. The district court had a full opportunity to
weigh the credibility of the officers and appellant and
determined that appellant validly revoked her previously
invoked right to counsel. While we have had the opportunity
on appeal to review the audiotapes and the transcript of
the interrogation, I cannot come to the same conclusion as
the majority. I believe that the officers were careful in
determining whether appellant understood her right to have
an attorney present during questioning, whether she wanted
to proceed without an attorney present, and that revocation
of her previous request for counsel was clear and valid. I
believe that appellant validly revoked her previously
invoked right to counsel, and therefore I would affirm.