The state Constitution provides protection independent of the federal Constitution. But its effectiveness as an independent source depends on lawyers remembering to use it and to articulate the basis for applying it.
Minnesota Constitution article I, section 10 varies from the U.S. Constitution’s Fourth Amendment only in the following ways:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
Although article I, section 10 is substantially identical to the Fourth Amendment, Minnesota courts have frequently construed article I, section 10 as affording greater protection against unreasonable searches and seizures than the Fourth Amendment. To effectively represent their clients, Minnesota criminal defense lawyers need to be aware of:
- the areas in which Minnesota courts have already construed article I, section 10 as affording greater protection against unreasonable searches and seizures than the Fourth Amendment, and
- areas that are good prospects for future similar rulings.
Conversely, Minnesota prosecutors need to be aware of:
- the areas in which Minnesota courts have refused to construe article I, section 10 as affording greater protection than the Fourth Amendment, and
- areas that are good prospects for future similar rulings.
The Minnesota Supreme Court has concluded that it will interpret the Minnesota Constitution more expansively than the federal Constitution when it has a “clear and strong conviction that there is a principled basis for greater protection of the individual civil and political rights of our citizens under the Minnesota Constitution.”1 The Minnesota court will interpret the Minnesota Constitution to provide greater protection than the federal whenever there is a principled basis for greater protection under the Minnesota Constitution, including:
- when greater protection under the Minnesota Constitution is justified by Minnesota-specific considerations,
- when the U.S. Supreme Court has made a sharp or radical departure from precedent, or
- when federal precedent does not adequately protect Minnesota citizens’ basic rights and liberties.2
More generally, the Minnesota court will interpret the Minnesota Constitution to provide greater protection than the federal when “a more expansive reading of the state constitution represents the better rule of law.”3
Although the court did not rely upon Minnesota-specific considerations in any of its many search-and-seizure decisions construing article I, section 10 more expansively than the Fourth Amendment, the court has relied upon such considerations in several non-search-or-seizure cases. In one of those cases, the court held that Minnesota’s “long tradition of affording persons on the periphery of society a greater measure of government protection and support than may be available elsewhere … compels us to deviate from the federal course on the question of denying funding to indigent women seeking therapeutic abortions.”4 In three other cases, the court discerned a long tradition of construing the right to counsel in Minnesota criminal cases more expansively than the U.S. Constitution’s Sixth Amendment.5
Although it did not do so, the Minnesota court might plausibly have relied upon Minnesota-specific traditions relating to ice fishing when it held that a fish house owner had a reasonable expectation of privacy that was violated when a conservation officer entered the fish house to conduct a routine license check.6 This would have been similar to the Colorado Supreme Court’s relying upon the facts that “[a]n integral facet of Colorado’s economy and allure is recreational tourism” and that “[v]isitors and residents of Colorado who choose to stay in a hotel room, cabin, or tent away from their permanent abode presumptively enjoy Fourth Amendment protection” when it ruled that a search of a tent in which the defendant had been camping violated the Colorado Constitution as well as the Fourth Amendment.7
Sharp or radical departure from precedent
The Minnesota court relied upon the presence of a U.S. Supreme Court sharp or radical departure from precedent in four cases construing article I, section 10 more expansively than the Fourth Amendment. In these four cases, the Minnesota court held:
- A person is seized who has been subjected to, but has not yet submitted to, police officer’s assertion of authority.8
- A sobriety checkpoint is an unreasonable seizure.9
- Confining a driver in a squad car’s back seat and requesting consent to search the driver’s vehicle unjustifiably expands the scope of a stop-sign-violation stop.10
- A second weapons sweep of a vehicle stopped for a license-plate-light violation is unreasonable where the police had no grounds for the second weapons sweep in addition to those they had for the initial weapons sweep.11
Conversely, the Minnesota court relied upon the absence of a U.S. Supreme Court sharp or radical departure from precedent in two decisions construing article I, section 10 consistently with U.S. Supreme Court Fourth Amendment interpretations. In these cases, the Minnesota court held that article I, section 10 permits:
- warrantless search of a probationer’s apartment based upon reasonable suspicion,12 and
- requiring persons upon felony conviction to provide biological specimens for the purpose of DNA analysis (in a case where a “cold hit” match yielded evidence to convict of a 2002 murder a person who provided a DNA sample after a 2004 burglary conviction).13
However, the Minnesota court did not allude to any U.S. Supreme Court sharp or radical departure from precedent in its other search-and-seizure cases construing article I, section 10 more expansively than the Fourth Amendment. For example, it did not allude to any such departure in either its earliest (1979) decision construing article I, section 10 more expansively than the Fourth Amendment or in more recent decisions thus construing article I, section 10.
In its 1979 O’Connor v. Johnson14 decision holding that a warrant may not authorize searching a lawyer’s office for evidence against a client when the lawyer is not suspected of criminal wrongdoing and there is no threat that the evidence will be destroyed if sought by subpoena,15 the Minnesota court did not accuse the U.S. Supreme Court of effecting a sharp or radical departure in its 1978 Zurcher v. Stanford Daily16 case holding that the Fourth Amendment did not require the use of a subpoena duces tecum rather than a search warrant to obtain evidence from a third party’s premises.17 Rather, after distinguishing Zurcher as involving a third party that was a newspaper with an announced policy to destroy any evidence that might aid in prosecuting protestors (as opposed to a lawyer with an ethical obligation to the legal system and subject to discipline were he to destroy subpoenaed documents and with no indication that the lawyer would have attempted to destroy the documents sought),18 the O’Connor court said simply: “A more important distinction between this case and Zurcher is that our decision rests not only on the Fourth Amendment of the United States Constitution, but also on Article I, section 10 of the Minnesota Constitution.”19
Neither in its 2003 In re B.R.K.20 case did the Minnesota court specify that it would be a sharp or radical departure from precedent for the U.S. Supreme Court to rule to the contrary before stating “we conclude that even if short-term social guests do not have a reasonable expectation of privacy under the Fourth Amendment, their expectation is legitimate under Article I, Section 10 of the Minnesota Constitution.”21
Similarly, when the Minnesota court more recently ruled that a drug-detection dog sniff outside a self-storage unit or outside an apartment door requires reasonable articulable suspicion of criminal activity, it acknowledged the U.S. Supreme Court’s position that a drug-detection dog sniff is not a search and departed from that position without accusing the U.S. Supreme Court of any sharp or radical departure from precedent.22
The Adequate-and-Independent-State-Ground Requirement
A holding that article I, section 10 provides protection will be preserved from possible U.S. Supreme Court reversal only if “the adequacy and independence of [the] state law ground is … clear from the face of the opinion.”23 Accordingly, the tasks of a Minnesota defense counsel with a search or seizure claim are to:
- make clear that the claim is based upon article I, section 10,
- using Minnesota decisions in the same area or related areas, U.S. Supreme Court concurring or dissenting opinions or majority opinions from overruled cases, cases from other states, and secondary authorities, demonstrate a principled basis for greater protection under article I, section 10, e.g., Minnesota-specific matters, a U.S. Supreme Court radical departure from precedent, federal precedent does not adequately protect Minnesota citizens’ basic rights and liberties, or a more expansive reading of the state constitution represents the better rule of law, and
- request the trial court and any other court that becomes involved to indicate clearly and expressly that its decision is independently based upon article I, section 10 by specifying, e.g., “even if [the protection is not afforded] under the Fourth Amendment, [it is afforded] under Article I, section 10 of the Minnesota Constitution.”24
The Minnesota Constitution’s protection is independent of the U.S. Constitution’s, but that independence sometimes needs to be emphasized.
1 Kahn v. Griffin, 701 N.W.2d 815, 828 (Minn. 2005) (declining to construe state constitutional voting-rights provisions as requiring speedier implementation of redistricting than the federal Constitution). See Paul H. Anderson & Julie A. Oseid, A Decision Tree Takes Root in the Land of 10,000 Lakes: Minnesota’s Approach to Protecting Individual Rights under Both the United States and Minnesota Constitutions, 70 Alb. L. Rev. 865 (2007).
2 Kahn, 701 N.W.2d at 828.
3 State v. Askerooth, 681 N.W.2d 353, 362 n.5 (Minn. 2004).
4 Women of State v. Gomez, 542 N.W.2d 17, 32 (Minn. 1995).
5 See Friedman v. Comm’r of Pub. Safety , 473 N.W.2d 828, 836 (Minn. 1991); State v. Risk, 598 N.W.2d 642, 648-49 (Minn. 1999); Deegan v. State, 711 N.W.2d 89, 95, 97-98 (Minn. 2006).
6 See State v. Larsen, 650 N.W.2d 144, 148-50 (Minn. 2002). Compare State v. Colosimo, 669 N.W.2d 1, 5 (Minn. 2003) (holding that where already-stopped open boat admittedly contained fish, a conservation officer may demand to search parts of the boat where fish are typically stored).
7 People v. Schafer, 946 P.2d 938, 944 (Colo. 1997).
8 In re E.D.J., 502 N.W.2d 779, 780, 783 (Minn. 1993) (refusing to follow California v. Hodari D., 499 U.S. 621 (1991)).
9 Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183, 186 (Minn. 1994) (refusing to follow Mich. Dept. of Pub. Safety v. Sitz, 496 U.S. 444 (1990)).
10 State v. Askerooth, 681 N.W.2d 353, 361-63 (Minn. 2004) (refusing to follow Atwater v. City of Lago Vista, 532 U.S. 318 (2001)).
11 State v. Flowers, 734 N.W.2d 239, 258 (Minn. 2007) (refusing to follow Atwater v. City of Lago Vista, 532 U.S. 318 (2001)).
12 State v. Anderson, 733 N.W.2d 128, 140 (Minn. 2007) (following United States v. Knights, 534 U.S. 112, 118
(2001)). Significantly, the Anderson court added, “Moreover, we are not convinced that federal precedent inadequately protects our citizens’ basic rights and liberties.” Id.
13 State v. Bartylla, 755 N.W.2d 8, 11, 12 &: n.2, 15, 17-19 (Minn. 2008) (following Samson v. California, 547 U.S. 843, 848-56 (2006), where the Court allowed suspicionless searches of convicts on parole as long as the searches are not arbitrary, capricious, or harassing). Significantly, in addition to referring to the absence of a U.S. Supreme Court sharp or radical departure from precedent, theBartylla court specified that it was satisfied that the protections adopted by the federal courts provide adequate protection for Minnesota citizens’ basic rights and liberties. Id. at *8.
14 287 N.W.2d 400 (Minn. 1979) (per Wahl, J.).
15 Id. at 405.
16 436 U.S. 547 (1978).
17 nO’Connor, 287 N.W.2d at 405.
19 Id. (quoting People v. Brisendine, 531 P.2d 1099, 1114 (Cal. 1975)).
20 658 N.W.2d 565 (Minn. 2003).
21 Id. at 577-78.
22 See State v. Carter, 697 N.W.2d 199, 207-08, 211 (Minn. 2005) (citing Illinois v. Caballes, 543 U.S. 405 (2005)); State v. Davis, 732 N.W.2d 173, 177 n.8, 182 (Minn. 2007) (citing Caballes, 543 U.S. at 408). See Rachel Bond & Theodora Gaitas, State v. Carter: The Minnesota Constitution Protects Against Random and Suspicionless Dog Sniffs of Storage Units, 32 Wm. Mitchell. L. Rev. 1287 (2006); Marjorie A. Shields, Annotation, Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of State Constitutions, 117 A.L.R.5th 407 (2004).
23 See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Anderson & Oseid, supra note 1, at 876, 917-18.
24 See In re B.R.K., 658 N.W.2d 565, 578 (Minn. 2003).
KENNETH F. KIRWIN, author of “Kirwin on Minnesota Search & Seizure” (Minn. CLE 2008), is professor emeritus at the William Mitchell College of Law, having served on the William Mitchell faculty since 1970. He is a graduate of St. John’s University and the University of Minnesota Law School.