State of Minnesota, Respondent, vs. Elvira Gonzalez, Appellant.

State of Minnesota, Respondent, vs. Elvira Gonzalez, Appellant. A05-2151, Court of Appeals Unpublished, January 9, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2151

 

State of Minnesota,

Respondent,

 

vs.

 

Elvira Gonzalez,

Appellant.

 

Filed January 9, 2007

Affirmed in part, reversed in part, and remanded

Ross, Judge

Concurring in part, dissenting in part,

Worke, Judge

Rock County District Court

File No. K2-04-103

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Donald R. Klosterbuer, Rock County Attorney, P.O. Box 438, Luverne, MN 56156 (for respondent)

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

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.

D E C I S I O N

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 black¾not 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, 31213 (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, 108586 (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. VVI.  Once a person in custody invokes her right to counsel, all police interrogation must cease.  Edwards v. Arizona, 451 U.S. 477, 48485, 101 S. Ct. 1880, 188485 (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 mya 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 questions¾effectively 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 lawyerwe 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'llyou 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'reyou 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.