Cass County District Court File No. 11-CR-12-2585
Lori Swanson, Attorney General, St. Paul, Minnesota; and Christopher Strandlie, Cass County Attorney, Benjamin T. Lindstrom, Assistant County Attorney, Walker, Minnesota (for appellant).
Richard C. Kenly, Kenly Law Office, Backus, Minnesota (for respondent).
Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Cleary, Judge.
In this pretrial appeal, the state argues that the district court erred by suppressing respondent's alcohol-concentration test results, which were obtained under Minnesota's implied-consent law. The district court suppressed the test results based on its conclusion that a law-enforcement officer violated respondent's limited right to pretest counsel by listening to and audio recording both sides of respondent's attorney-client consultation. Because the proper remedy for violation of the right to a private attorney-client consultation is suppression of any overheard statements and not suppression of the test results, we reverse and remand.
On December 7, 2012, respondent Luke Joseph Freeman was arrested for driving while impaired (DWI). State Patrol Lieutenant David Zumberge transported Freeman to the Cass County Jail and read Freeman the implied-consent advisory. The lieutenant audio recorded his reading of the advisory, but he did not turn off the recording device after he read the advisory. Freeman asked to speak to an attorney before deciding whether to submit to chemical testing. Freeman contacted an attorney by telephone, and the attorney advised Freeman to submit to testing. The attorney-client consultation occurred over a speaker phone. The lieutenant was present in the room while Freeman spoke with his attorney. Because the lieutenant had not turned off the recording device, both sides of the conversation between Freeman and his attorney were audio recorded. Freeman submitted to a breath test, which revealed that his alcohol concentration was in excess of the legal limit.
The state charged Freeman with two counts of second-degree DWI. Freeman moved to suppress the test results, arguing, in part, that the lieutenant violated his right to counsel by audio recording his entire attorney-client consultation. The parties agreed that the district court would decide the suppression issue based on the parties' written submissions, as well as a copy of the audio recording. The district court therefore did not hold an evidentiary hearing on Freeman's motion, and the resulting record does not indicate why a speaker phone was used or whether the lieutenant's failure to turn off the recording device was intentional.
The district court granted Freeman's motion to suppress, reasoning that the lieutenant's conduct in listening to and recording both sides of the attorney-client conversation "constructively denied" Freeman's right to counsel. The state filed this pretrial appeal, in which Freeman has not participated.
When the state appeals a pretrial order suppressing evidence, it must "clearly and unequivocally show both that the [district] court's order will have a critical impact on the state's ability to prosecute the defendant successfully and that the order constituted error." State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted). Critical impact is shown "in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution." State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). As a result of the district court's suppression order, the state no longer has evidence to prove that Freeman's alcohol concentration was above .08, which is a necessary element of one of ...