This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A15-1454 State of Minnesota, Respondent,

vs. Travis Richard Otto, Appellant. Filed July 18, 2016 Affirmed in part, reversed in part, and remanded Schellhas, Judge Sherburne County District Court File No. 71-CR-13-1076 Lori Swanson, Attorney Gene ral, St. Paul, Minnesota; and Kathleen A. Heaney, Sherbur ne County Attorney , Dawn R. Nyhus, Assistant County Attorney, Elk River, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Reyes, Presidi ng Judge; Schellhas, Judge; and Bratvold, Judge. U N P U B L I S H E D O P I N I O N SCHELLHAS , Judge Appellant challenges his convictions of fi rst-degree controlled-substance crime and fourth-degree driving while impaired, arguing that law enforcement detained him without2 reasonable, articulable suspicion; impermissi bly expanded the scope of the investigatory detention; and coerced his consent to a warran tless test of his blood. We affirm in part, reverse in part, and remand. FACTS While driving near Big Lake at about el even o’clock on a sunny, dry morning in August 2013, appellant Travis Richard Otto left Highway 10, sheared off a utility pole at its base, and downed at least one power line. The crash caused the air ba gs in Otto’s car to deploy and caused extensive front-end damage to the car, including engine-fluid leaks. 1
But Otto was able to dr ive the car about a quarte r-mile to a tavern parking lot. At least one witness to the crash called police. Big Lake Police Officer Ci ndy Finch located Otto’s ca r in the lot and saw Otto getting out of his car. Officer Finch spoke with Otto, who declined medical attention and told Officer Finch about the crash. A few mi nutes later, State Patrol Trooper Troy Morrell arrived, spoke with Officer Finch, and took over the investigation while Officer Finch remained at the scene. Trooper Morrell quest ioned Otto about the crash and observed his demeanor and behavior. As Otto conversed with Trooper Morre ll, he moved toward his car multiple times; Trooper Morrell asked Otto two or three tim es to “come away” from his car and finally directed him to “come closer” to Trooper Morrell’s squad car. Trooper Morrell asked Otto, “Is there anythi ng on you that I need to be aware of?” Otto responded that he had his cell phone onhim. Trooper Morrell as ked Otto whether he

1 The record is unclear regard ing Otto’s ownership of the ca r, but we refer to the car as “Otto’s car.”3 had “anything else in [his] pa nts pockets or otherwise on [his] person that [Trooper Morrell] need[ed] to be aware of,” and Troo per Morrell saw “a bulky-type object” in Otto’s pants pocket and asked Otto about it. Otto an swered, “Look, I have drugs.” Trooper Morrell handcuffed Otto and removed the object—a zippered pouc h—from Otto’s pocket. Trooper Morrell opened the pouch and found what he believed to be methamphetamine; he found more suspected methamphetamine and a roll of cash in Otto’s other pants pocket. Trooper Morrell then told Otto that he was under arrest, conducte d a pat-down search of Otto, and put Otto in the back of Tr ooper Morrell’s squad car. Neither Trooper Morrell nor Officer Finch gave Otto a Miranda warning. While Otto sat in the squad car, Trooper Mo rrell and Officer Finch searched Otto’s car. At one point, Otto asked Trooper Morrell to call his father to let him know that he had been arrested and stated that he would cooperate. Trooper Morrell asked him what he meant by “cooperate,” and Otto said that he wo uld tell Trooper Morrell where he was coming from and where he was headed. At a later point , Otto called out and complained that the squad car was hot and that he was sweating. Trooper Morrell tu rned up the air conditioning. Eventually, while th e search of Otto’s car continued, Otto complained of chest pains, saying that his chest hit the steering wheel duri ng the crash, and he o ffered to tell Trooper Morrell “where everything [wa]s.” Tro oper Morrell called for an ambulance. Before the ambulance arrived, Otto told Trooper Morrell that he had two children, had been sober for seven years until December 2012, had lost his job, had relapsed with drugs, and was addicted. Trooper Morrell asked Otto when he had used drugs, and Otto responded that he had used drugs around nine or ten o’clock on the previous night. When4 the ambulance arrived, medical personnel spoke w ith Otto as he sat in the squad car. With Trooper Morrell nearby, Otto told medical personnel that he used methamphetamine “yesterday.” Medical personnel took Otto to a hospital, wh ere Trooper Morrell later read the standard implied-consent advisory to Otto. Otto declined to cons ult with an attorney, agreed to submit to a blood te st, and submitted to the test, wh ich revealed the presence of methamphetamine in Otto’s blood. Respondent State of Minnesota charged Otto with first-degree controlled-substance crime and fourth-degree driving while impa ired (DWI). Otto m oved to suppress his inculpatory statements and “any and all evidence taken as a result of search and seizure.” The district court conducted a contested omni bus hearing at which O fficer Finch, Trooper Morrell, and Otto testified. The court suppresse d Otto’s inculpatory st atements to Trooper Morrell, declined to suppress O tto’s inculpatory statements to medical personnel, declined to suppress the physical evidence, and “reope n[ed] the hearing” to receive evidence and argument regarding the warrantless blood test. The parties agreed to submit the blood-test issue to the district court on the basis of documentary evidence and an y written submissions. The court declined to suppress the blood-test evidence. Otto then waived his jury and trial rights and stipulated to aspects of the state’s case, and the parties submitted the case to the court under Minn. R. Crim. P. 26.01, subd. 4. The court foun d Otto guilty as charged and sentenced him to 135 months’ imprisonment for first-degree controlled-s ubstance crime and 90 days’ concurrent confinement for fourth-degree DWI. This appeal follows.5 D E C I S I O N “When reviewing a district court’s pretrial order on a motion to suppress evidence, the district court’s factual findings are revi ewed under a clearly er roneous standard. But legal determinations, such as whether there wa s a seizure and, if so, whether that seizure was unreasonable, are reviewed de novo.” State v. Eichers , 853 N.W.2d 114, 118 (Minn. 2014) (citation omitted), cert. denied , 135 S. Ct. 1557 (2015). “[ Appellate courts] accept the district court’s factual findings unless they are clearly erroneous.” State v. Smith , 814 N.W.2d 346, 350 (Minn. 2012). “Findings of fact are clearly erroneous if, on the entire evidence, [the reviewing court is] left with th e definite and firm conviction that a mistake occurred.” State v. Diede , 795 N.W.2d 836, 846–47 (Min n. 2011). “Deference must be given to the district court’ s credibility determinations.” State v. Klamar , 823 N.W.2d 687, 691 (Minn. App. 2012). “We will not reverse a correct decision by the district court simply because we disagree with its reasoning.” State v. Eichers , 840 N.W.2d 210, 216 (Minn. App. 2013), aff’d on other grounds , 853 N.W.2d 114 (Minn. 2014). Investigatory detention Otto challenges the district court’s conclu sion that his investigatory detention was constitutional, first arguing th at law enforcement did not ha ve reasonable, articulable suspicion to stop his car. This argument is mi sguided because law enforcement did not stop Otto’s car: it already was parked in the ta vern’s lot when Offi cer Finch located it, approached Otto, and asked hi m about the crash, and it still was parked when Trooper Morrell arrived on the scene and began questioning him about the crash.6 “[C]ourts generally have held that it doe s not by itself constitute a seizure for an officer to simply walk up and ta lk to a person standing in a pub lic place or to a driver sitting in an already stopped car.” State v. Vohnoutka , 292 N.W.2d 756, 757 (Minn. 1980); see also Klamar , 823 N.W.2d at 693 (concluding that tr ooper’s approach of already-stopped vehicle to check welfare of occupants was not seizure). Here, having been alerted to a serious crash involving Otto’s car, Office r Finch and Trooper Morrell were entitled to approach the car in a commercia l parking lot to check the welf are of its occupants and to offer help if necessary. Cf. Kozak v. Comm’r of Pub. Safety , 359 N.W.2d 625, 628 (Minn. App. 1984) (stating that “an officer has not on ly the right but a duty to make a reasonable investigation of vehicles parked along roadways to offer such assistance as might be needed and to inquire into the physical co ndition of persons in vehicles” (citing Vohnoutka , 292 N.W.2d at 756)). Because Otto was not sei zed by Officer Finch’s or Trooper Morrell’s initial contact with him, we need not consid er whether that contact was justified by reasonable, articulable susp icion of criminal activity. But we conclude that Trooper Morrell’s subs equent verbal attempts to restrict Otto’s physical movements in the parking lot cons tituted an investigator y detention—i.e., a temporary seizure of Otto’s person. See State v. Hanson , 504 N.W.2d 219, 220 (Minn. 1993) (stating that a seizure occurs when, “looki ng at all of the facts, the conduct of the police would communicate to a reasonable person in the defendant’s physical circumstances an attempt by the police to capture or seize or otherwise to significantly intrude on the person’s freedom of movement”); see also Klamar , 823 N.W.2d at 693 (concluding, in case involving welfare check, that seizure did not occur until trooper7 ordered driver to exit vehicl e and approach trooper’s vehi cle). We therefore consider whether reasonable, articulable suspicion of criminal activity justified that seizure. See Smith , 814 N.W.2d at 350 (“[Appellate cour ts] review de novo a district court’s determination of reasonable su spicion of illegal activity.”). Under Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868 (1968), a police officer may temporarily seize a person to investigate that person for criminal wrongdoing if the offi cer reasonably suspects that person of criminal activity. Re asonable suspicion must be based on specific, articulable fact s that allow the officer to be able to articulate at the omnibu s hearing that he or she had a particularized and objective ba sis for suspecting the seized person of criminal activity. . . . A hunch, without additional objectively articulable facts, ca nnot provide the basis for an investigatory stop.
Diede , 795 N.W.2d at 842–43 (quotations and cita tions omitted). In this case, the district court found that [b]ased on [Trooper Morrell’s] experience, [Otto]’s explanation regarding . . . why he hit a [utility] pole appeared inconsistent and suggested [O tto] may have been under the influence. Further, [Otto]’s body movement including moving to and from [his car] during hi s discussions with Officer Finch and Trooper Morrell indicated to Trooper Morrell, based on his experience, that [Otto] ma y be concerned about law enforcement discovering contraband in [his car]. In addition, [Otto] appeared nervous a nd was slow to react. These findings are supported by Trooper Morre ll’s testimony, which the court expressly found credible. Otto does not specifically challenge the court’s findings but points to portions of Trooper Morrell’s testimony that pur portedly show that Trooper Morrell acted on a bare “hunch” rather than on the observabl e facts identified in other portions of the testimony.8 “To be reasonable, the basis of the office r’s suspicion must satisfy an objective, totality-of-the-circumstances test.” Smith , 814 N.W.2d at 351; see also State v. Jackson , 742 N.W.2d 163, 179 (Minn. 2007) (“An individual office r’s subjective state of mind is not the relevant consideration.”). The test is “whether the facts available to the officer at the moment of the seizure would warrant a man of reasonable caution in the belief that the action taken was appropriate.” Smith , 814 N.W.2d at 351

− 52 (quotations omitted). Here, Trooper Morrell had about two decades of law- enforcement experience, which was “heavy into DWI enforcement” and in cluded “hundreds” of impaired-driving investigations, and he had training regarding standardized field- sobriety testing and indicia of impairment by alcohol or controlled substances. He also had conducted investigations, numbering “possibly in the hundreds,” that led to char ges of controlled-substance crime. Regardless of Trooper Morrell’s subjective state of mind, Otto’s demeanor and behavior would have led an officer with Trooper Morrell’s training and experience to reasonably suspect Otto of criminal activity related to controlled substances. We conclude that reasonable, articulable suspicion supported O tto’s investigatory detention. Otto also argues that Trooper Morrell’s que stions regarding items on Otto’s person were equivalent to a Terry frisk that lacked the required officer-safety justification or otherwise impermissibly expanded the scope of the investigatory deten tion. Otto is correct that a Terry frisk is justified by a reasonable, articulab le suspicion that the suspect is armed and dangerous. State v. Lemert , 843 N.W.2d 227, 230 (Minn. 2014). But he offers no support for his conflation of a Terry frisk—that is, “a carefully limited search of the outer clothing to discover weapons which mi ght be used against the officer,” State v. Wiggins ,9 788 N.W.2d 509, 513 (Minn. A pp. 2010) (quotation omitted), review denied (Minn. Nov. 23, 2010)—and open-ended verbal questi ons regarding items on a suspect’s person. Because Trooper Morrell’s questions were a reasonable and increm ental step in his investigation of suspected crim inal activity related to contro lled substances, and regardless of Trooper Morrell’s subjective motivation for asking the ques tions, the questions did not impermissibly expand the scope of Otto’s investigatory detention.
Warrantless blood test Otto challenges the warrantless test of hi s blood, acknowledging that he verbally and physically consented to th e test but asserting that Trooper Morrell coerced his consent by “false[ly] threat[ening]” hi m that withholding consent is a crime and by asking him for consent “in the radiology room of a hospital while Otto was r eceiving treatment for injuries sustained during a major traffic accident.” Otto also notes that he did not consult with an attorney before giving co nsent and claims a causal link between Trooper Morrell’s elicitation of inadmissible inculpatory statem ents from Otto regard ing his drug use and Trooper Morrell’s later success in obtaining Otto’s consent to a test of his blood for drugs. Taking [a] blood . . . sample [] from someone constitutes a “search” under the Fourth Amendm ent. But police do not need a warrant if the subject of the search consents. For a search to fall under the consent exception, the State must show by a preponderance of the evidence that the defendant freely and vo luntarily consented. State v. Brooks , 838 N.W.2d 563, 568 (Minn. 2013) (citations omitted). The voluntariness of a defendant’s consent to chemical testing is assessed under “the totality of the circumstances, including the nature of the en counter, the kind of person the defendant is,10 and what was said and how it was said.” Id. at 569 (quotation omitted). “The question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact.” Diede , 795 N.W.2d at 846 (quotation omitted). Here, the district court considered Otto’s arguments and found that “the taking of [Otto]’s blood was consensual as part of th e Implied Consent statutory scheme.” In an opinion issued after the district court’s ruling, the United States Supreme Court held that a state may not constitutionally criminalize a driv er’s refusal to submit to a warrantless blood test, even where the driver was arrested la wfully for DWI, absent case-specific exigent circumstances justifying the state’s failure to seek a search warrant. Birchfield v. North
Dakota , No. 14-1468, 2016 WL 3 434398, at *12, *25–27 (U .S. June 23, 2016). The implied-consent advisory that Trooper Morre ll read to Otto therefore was partially inaccurate insofar as it conveyed to Otto that withholding consen t to a warrantless blood test is a crime. See id. at *27 (noting that de fendant “submitted to a blood test after police told him that the law required his submi ssion,” labeling as “erroneous” state court’s assumption that state permissibly could comp el warrantless blood test , and characterizing as “partial[ly] inaccura[te]” a dvisory given to defendant). The partial inaccuracy of the implied-consen t advisory is one circumstance in the totality of the circumstances faced by Otto when he agreed to take a blood test. See id. (noting that state court “held that [defe ndant]’s consent was voluntary on the erroneous assumption that the State could permissibly co mpel both blood and breat h tests,” reiterating that “voluntariness of consent to a search must be determin ed from the totality of all the11 circumstances,” and directing state court “to reevaluate [defendant]’s consent given the partial inaccuracy of the officer’s advisory” (quotation omitted)); cf. Brooks , 838 N.W.2d at 569 (stating that the totality of the circ umstances includes “what was said and how it was said” (quotation omitted)). Yet the partia l inaccuracy of th e advisory was not considered by the district court, which la cked the guidance pr ovided by the recent Birchfield opinion. We therefore reverse the district court’s judgment as to Otto’s DWI conviction and sentence, and we remand to the district court to reassess the voluntariness of Otto’s consent to the blood test in light of all the relevant circumstances, including the partial inaccuracy of the advisory, and to consider the applicability , if any, of the good-faith exception to the exclusionary rule. See Birchfield , 2016 WL 3434398, at *27 & n.9 (vacating judgment of state court, remanding for state court “to reev aluate [defendant]’s consent given the partial inaccuracy of the officer’s a dvisory,” and noting that stat e court “will have to address whether the evidence obtained inthe search must be suppressed” if state court finds on remand that defendant did not voluntarily cons ent to blood test). Affirmed in part, reversed in part, and remanded.