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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Just Saying No: The Limits of Warrantless Searches

A case involving Minnesota’s DWI test refusal statute could yield a major 4th Amendment decision from the United States Supreme Court

0216-Police-DWIMinnesota is one of a handful of U.S. states that have criminalized the refusal to submit to a warrantless search in suspected DUI cases. This term, the U.S. Supreme Court will review a Minnesota case as it determines whether states can make refusing to submit to a warrantless search a criminal act.

Minnesota is in the national spotlight, and in a very big way. This term we expect the United States Supreme Court to issue a major decision regarding the scope of the 4th Amendment warrant requirement, and the Court is using a Minnesota case to reach its decision: Bernard v. Minnesota.

It was the signed confession from a suspected rapist in Arizona that led the Court to issue its watershed decision regarding coerced confessions in Miranda v. Arizona.1 It was Illinois’ decision to relentlessly interrogate a suspected murderer for over 14 hours, while repeatedly denying his attorney’s demands to be present, that led the Court to issue its watershed decision regarding the right to counsel in Escobedo v. Illinois.2 When North Carolina went looking for a weapon used in a reported rape, and claimed that they found it during a “consensual” search despite the fact that the homeowner had been told that she had no right to refuse the search, the Court took the opportunity to reject “consensual” searches in the face of bald claims of lawful authority. That one was Bumper v. North Carolina.3

Why is a Minnesota case drawing such scrutiny from the Supreme Court? Bernard is a case about a drunk driver who refused to submit to an in-custody, warrantless search of his breath. Minnesota, not content to use the fact of his refusal against him as “consciousness of guilt” evidence at trial (something permitted since South Dakota v. Neville4), went one step further and criminalized the very act of refusing to submit to a warrantless search. This term, the Supreme Court is going to answer one broad question and one narrow one. The broad one is simply “can the states make refusing to submit to a warrantless search a criminal act?” The narrow question is closely tied to Minnesota’s (latest) rationale for claiming our test refusal crime is constitutional, and involves treating a breath alcohol concentration test as a “search incident to arrest” and therefore a search that is unprotected by the 4th Amendment.

Focus On The 4th Amendment

The United States Supreme Court has repeatedly restated the cautionary warning first uttered in Gouled v. United States,5 when the Court noted that the judiciary is charged with a continuing duty to liberally construe the 4th Amendment, “so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers.” In contrast, Minnesota courts have spent the past decade demonstrating a stubborn tendency to create newer and broader exceptions to the 4th Amendment (at least in the DWI context). But our test refusal law has never faced national scrutiny until now.

How did we get here? Minnesota is one of very few states that actually criminalize refusal to submit to chemical testing, zealously looking to combat drunk driving and, in doing so, rushing down a road that the vast majority of other states have not dared to tread. Alaska is among the small handful of states that also make it a completely independent crime to refuse to submit to testing.6 Note that Hawaii’s test refusal law comes with a giant asterisk: The Supreme Court of Hawaii recently issued a decision that effectively strikes down the state’s own test refusal law as unconstitutional, and will likely make its way to the United States Supreme Court alongside Bernard. But in any event, it is clear that while the motives behind such laws are undoubtedly honest and well-meaning, the same can be said of many other types of constitutionally questionable behavior, like internment camps, suspicionless traffic stops, and warrantless GPS tagging of private vehicles. Good motives do not always make for constitutional laws.

But we’re not talking about internment camps, we’re talking about Minnesota’s test refusal statute (Minn. Stat. §169A.20, subd. 2), which intentionally eliminates the protections of the 4th Amendment in DWI investigations, and manages to do so in just one relatively simple sentence. This statute takes a core American principle (the right to tell a law enforcement agent “show me a warrant”) and instead opens the door to a type of government where law enforcement agents are not bound by the law, but effectively are the law—a choice that, if made at all, must only be made to counter the most dire of circumstances.

Minnesota is not just one of few states to make test refusal a crime; it was one of the first to do so. The law has slowly evolved since its creation and faced numerous legal challenges leading up to Bernard. In 1993, the Legislature amended Minnesota’s original DWI test refusal law to apply to any driver suspected of driving while impaired (prior to that change, the crime of refusal only applied to drivers that had a previous impaired driving incident on their record). After these amendments, any driver who refused to submit to testing could be charged with the independent crime of test refusal, and were advised of that fact as part of the standard implied consent advisory.7

After the 1993 amendments, the defense bar began raising constitutional challenges to the law. In 2001 the Minnesota Supreme Court concluded that criminalizing the act of saying “show me a warrant” did not violate the 5th Amendment right against self-incrimination.8 At that time, the Minnesota Supreme Court withheld their opinion on the question of whether such a law violated the 4th Amendment right against unreasonable searches and seizures, but in 2002 the court of appeals ruled in cursory fashion (in State v. Mellett) that it would “defer to the Legislature’s judgment and hold that the refusal statute does not violate appellant’s Fourth Amendment rights.”9

In 2003, perhaps emboldened by the recent decision in Mellett, the Legislature again amended the DWI laws to enhance the criminal consequences for test refusal. This time, the amendments elevated the crime of test refusal to a gross misdemeanor, making the penalties more severe for those who refused a test than for those that failed a test.10 This was the point where Minnesota truly crossed the Rubicon; now, drivers could be found not guilty of the crime they were arrested for (driving while impaired) and yet face more jail time and higher fines for a crime that was committed entirely in the police station. The crime of refusing to submit to a warrantless search now carried greater consequences than actually driving drunk.

Scrutinizing a Statute

These changes sparked a renewed series of 4th Amendment and due process challenges, which culminated in a trilogy of decisions, two issued by the Minnesota Supreme Court and one by our Court of Appeals, each comprising a leg in the tripod of legal logic that was ultimately responsible for upholding the constitutionality of the test refusal law. First, in State v. Shriner, the Court re-purposed an old exception to the 4th Amendment in a manner that applied only to DWI cases: “single-factor exigency” based upon the “rapid, natural dissipation of alcohol in a driver’s bloodstream.”11 Shriner stood for the arguably narrow proposition that when a driver was arrested for the serious crime of criminal vehicular operation or homicide, police would never be required to obtain a warrant prior to executing a blood draw against a driver. While Justice Meyer wrote a compelling dissent in the Shriner case (remember this, as it will come up again later), the majority opinion created a new exception to the 4th Amendment that placed some DWI blood tests outside the scope of constitutional protection.

This “single-factor exigency” doctrine was expanded upon one year later in the case of State v. Netland.12 Netland, unlike Shriner, was a test refusal case. However, utilizing the logic in Shriner, the Minnesota Supreme Court concluded that Minnesota’s test refusal law was constitutional for the same reason the warrantless blood draw in Shriner was constitutional, namely, the single factor exigency doctrine. To be more specific, the Court concluded that because the underlying demand for a breath test in Netland was reasonable even without a warrant, there could be no due process violation for criminalizing the act of refusing to submit to that particular warrantless search.

Shriner crafted the single factor exigency exception to the 4th Amendment in Minnesota, and on its face only applied to blood draws performed during investigations into criminal vehicular operation and homicide. Netland expanded the doctrine to attempts to execute warrantless breath searches during relatively routine DWI investigations, and also used the doctrine to justify Minnesota’s test refusal statute. The trilogy of cases concluded in the case of Ellingson v. Comm’r of Pub. Safety,13 which simply extended the single factor exigency exception to warrantless urine tests. These three cases, read together, stood for the proposition that all types of DWI search (blood, breath, and urine) in all types of DWI cases (from routine first offenses to felony level offenses to vehicular homicide cases) were removed from the protections of the 4th Amendment—a per se exception that applied across the board.

Testing the Trilogy

This was the state of the law in Minnesota in 2013, when the United States Supreme Court issued its watershed decision in Missouri v. McNeely.14 The McNeely case could just as easily have come from Minnesota. In it, the Missouri Supreme Court had considered adopting Minnesota’s “single factor exigency” exception for DWI cases—and had roundly rejected it. On appeal, the United States Supreme Court agreed, and discarded the very concept of single factor exigency as being applicable in DWI investigations. Instead, the Court held that any exigency must be analyzed under the traditional “totality of the circumstances” standard; in effect, the Court concluded that there is no per se DWI exception to the Constitution.

The McNeely decision specifically cited the Shriner case (and even more specifically, cited with approval the dissent penned by Justice Meyer), and left no doubt that Minnesota’s reliance on a blanket exception to the 4th Amendment was at an end. Defense attorneys in Minnesota immediately dusted off their old memorandums of law and suppression motions, and began challenging Minnesota’s test refusal law with renewed vigor, dancing in the ashes of Shriner, Netland, and Ellingson.

It was a flurry of litigation that would last for years, reaching a crescendo in the case of State v. Bernard. The Bernard case symbolized a second attempt to have Minnesota’s test refusal law struck down as unconstitutional. Recall that the previous attempt to strike down the test refusal law, in the 2009 Netland case, failed due to the creation of the new per se exception to the 4th Amendment by the Minnesota Supreme Court… because, as everyone knows, history has a way of repeating itself.

Breaking Down Bernard

Throughout its lifespan in Minnesota courts, the Bernard appeal has echoed the Netland case in one major respect: At each level of appeal, our appellate courts would (once again) either create a new per se exception to the warrant requirement, or re-purpose an old one, en route to again finding it permissible to criminalize the act of refusing to submit to a warrantless search. The court of appeals in Bernard started by acknowledging the rejection of single factor exigency by the United States Supreme Court—and then adopted what could be called the “inevitable warrant doctrine.”15 In so many words, the court of appeals crafted a new exception to the warrant requirement, interestingly selecting one that had been repeatedly rejected for decades by the United States Supreme Court, concluding that in circumstances where law enforcement could have obtained a warrant, there is no need to for them to actually obtain a warrant. In a nutshell, for a period of time Bernard stood for the proposition that there is no need to bother a judge or magistrate with the constitutionally mandated warrant process, as long as law enforcement were confident that they could have gotten a warrant if they had made the attempt. On this logic, the court held that it is perfectly constitutional to charge someone with a crime for refusing to submit to a warrantless search, because it was only technically a warrantless search (not actually a warrantless search).

Of course, the Minnesota Supreme Court accepted review of Bernard, and spent less than a paragraph discarding the “inevitable warrant” doctrine that was espoused by the court of appeals.16 The Court then went on to replace one per se exception to the warrant requirement with another one, selecting the “search incident to arrest” exception. Recall that in Netland, the Court had previously repurposed the single factor exigency exception for use in DWI cases; now, the Court was repurposing the search incident to arrest exception in the same way.

For those who do not practice in the area of criminal defense, and are far removed from their criminal procedure courses, the search incident to arrest exception is premised upon the need for law enforcement to make sure that arrested suspects do not have any weapons and/or contraband on their persons before they are transported to jail. The twin goals of officer safety and securing destructible evidence underpin the traditional search incident to arrest exception. Now, in Bernard, the Minnesota Supreme Court extended this doctrine to cover the “deep lung air” that is sought after during a DWI breath test. Once again, a per se exception to the warrant requirement had been crafted to cover DWI investigations, which once again led the Court to the conclusion that it was still constitutional to charge DWI suspects with a crime if they refused to submit to a warrantless search.

This long and winding path paved the way for the Bernard case to reach the United States Supreme Court. Which, in turn, is why Minnesota finds itself in the national spotlight on an issue that reaches far beyond routine DWI investigations and instead touches the very core of the 4th Amendment. Justice Marshall, dissenting in the case of Skinner v. Railway Labor Execs. Ass’n, was almost prescient when he warned that, “damage done to the Fourth Amendment is not so easily cabined. The majority’s acceptance of dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens.”17 Justice Marshall then added, “the Court today takes its longest step yet towards reading the probable cause requirement out of the Fourth Amendment.” We’re expecting a decision from the Supreme Court in June; until then, judges, prosecutors, defense attorneys, and every other Minnesotan are waiting with bated breath to see what the future holds for the 4th Amendment. At stake is nothing less than the right to say “get a warrant” when law enforcement come knocking.

Decades of Decisions

But, constitutional rights aside, are we actually any safer when we make refusal to submit to a warrantless search a crime? Do fewer people overall risk driving drunk knowing that refusal is a criminal act, or, in the words of one author, does a test refusal crime simply mean that the worst casualty of the war on drunk driving is actually the “precious liberties of our citizens”? Consider the raw data regarding drunk driving incidents in Minnesota and compare that data to the Legislature’s efforts at eliminating the constitutional right to a warrant. Minnesota’s DWI arrest rate hovers consistently around 30,000.18 From 30,088 reported incidents in 1993, impaired driving incidents peaked in 2006 with 41,951, and since that time have declined to 28,418.19

Now, remember the changes to the test refusal law in 1993, making our test refusal law apply to all drivers regardless of their prior record. From 1993 to 1998, after these changes were implemented, impaired driving incidents increased by approximately 2,000 (32,422).

And by 2002, Minnesota reported 33,163 annual impaired driving incidents. The next year, in 2003, recall that the Legislature again amended the DWI laws to enhance the criminal consequences for test refusal, making the level of offense more severe for those who refuse a test versus those that failed a test. 2003 saw 32,266 reported incidents, a slight decline from 2002, but 2004 saw an increase of approximately 2,000 incidents (34,202). 2005 saw the rate of reported incidents increase again by approximately 3,000 (37,002). This rate went up yet again in 2006, when 41,951 incidents were reported—a steady and dramatic increase in impaired driving incidents after we stiffened the penalties for test refusal. Now, these incidents steadily decreased from 2006 onward . . . but that can likely be attributed to a different legal change that had nothing to do with criminalizing test refusal. It was near the end of 2005 when the Legislature amended the per se legal limit from .10 to .08.20

So there is no evidence that criminalizing the act of refusing to submit to a warrantless search reduces DWI offenses. Does it help in some other way? Note that in 2005, Minnesota’s rate of breath test refusals compared to overall DWI incidents was 13 percent – higher than many states that did not criminalize the act of refusal, and lower than other states (like Alaska) that also make refusal a crime.21 In a different study, the National Highway Traffic and Safety Administration (NHTSA) concluded that implementing a procedure whereby warrants are obtained against drivers who refuse to submit to testing can make it less likely that drivers will even try to refuse, because they “understand their right to refusal does not terminate the ability of law enforcement to obtain BAC evidence…”22

While these figures may also be affected by external factors, such as increased (or decreased) enforcement and/or reporting errors, the simple fact remains that there is no evidence that legislating away a driver’s constitutional right makes our roads any safer, or even do an effective job of collecting more damning evidence to use against our citizens. However, when law enforcement agents are trained on how to use the established warrant procedure, and then take advantage of that procedure, there is evidence that more convictions are obtained, and that our roads are indeed made safer.

Conclusion

In the end, Bernard v. Minnesota will undoubtedly become a case memorized by generations of future law students, a watershed decision that will stretch much further than the narrow DWI-related question being presented to the United States Supreme Court. Here at home, it represents the culmination of decades of litigation levied against an almost trivial one-sentence law that carries with it major repercussions for the future of the 4th Amendment warrant requirement.

One final note: After the Minnesota Supreme Court issued the Bernard decision, the Minnesota Court of Appeals dealt with two other challenges to Minnesota’s test refusal law. Both challenges raised the same legal arguments as Bernard, but factually differed from Bernard in that they dealt with refusal to submit to blood tests.23 In both cases, the court of appeals reached the opposite decision of the Minnesota Supreme Court in Bernard, and struck down our test refusal law as unconstitutional. What this means for the future of Minnesota’s DWI laws is unclear, but to say that those laws are “unsettled” is putting it mildly.


 

CHARLES A. RAMSAY has practiced Criminal Defense since 1995 and gained acquittals in a wide variety of criminal cases.  He prides himself on being on the cutting edge of criminal defense, including becoming the first (and currently only) Minnesota attorney to receive the prestigious “Lawyer-Scientist” designation as recognized by the Chemistry and Law Division of the Congressionally chartered American Chemical Society. Charles has helped pioneer a number of defenses in Minnesota, including faulty eyewitness identification, false confessions, and the right of a defendant to present alternative suspects to a jury.  He is a faculty member for the National College of DUI Defense and practices primarily in the area of DWI/DUI criminal defense and appeals.  

DAN KOEWLER  is an associate attorney with Ramsay Law Firm, PLLC, licensed to practice law by the Supreme Court of the State of Minnesota, the United States Supreme Court and the Federal District Court in Minnesota.  Dan is a member of a broad array of prestigious associations – he is the current Chairman of the Amicus Committee for the Minnesota Association of Criminal Defense Lawyers and on the Executive Council for the Criminal Law section of the Minnesota State Bar Association. He is also a member of the Minnesota Society for Criminal Justice, an exclusive, invitation-only group of 50 defense attorneys who practice in Minnesota.


 

Notes

1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 Escobedo v. Illinois, 378 U.S. 478 (1964).

3 Bumper v. North Carolina, 391 U.S. 543 (1968).

4 South Dakota v. Neville, 459 U.S. 553 (1983).

5 Gouled v. United States, 255 U.S. 298, 304 (1921).

6 Alaska Stat. §28.35.032(f) (2012). Nebraska does the same, as does Hawaii. Neb. Rev. Stat. §60-6, 197(3) (2011); Haw. Rev. Stat. §291e-68 (2012).

7 Minn. Sess. Law Serv. Ch. 347 (May 1993).

8 McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848 (Minn.1991).

9 State v. Mellett, 642 N.W.2d 779, 785 (Minn.Ct.App.2002).

10 2003 Minn. Sess. Law Serv. 1st Sp. Sess. Ch. 2 (May 2003).

11 State v. Shriner, 751 N.W.2d 538 (2008).

12 State v. Netland, 762 N.W.2d 202 (Minn.2009).

13 Ellingson v. Comm’r of Pub. Safety, 800 N.W.2d 805 (Minn.Ct.App.2011).

14 Missouri v. McNeely, 133 S.Ct. 1552 (2013).

15 State v. Bernard, 844 N.W.2d 41 (Minn.Ct.App.2014).

16 State v. Bernard, 859 N.W.2d 762 (Minn.2015).

17 Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 636 (1989).

18 Minnesota Department of Public Safety, Impaired Driving Facts 2012. Office of Traffic Safety (August 2013).

19 Id. at 2.

20 2004 Minn. Sess. Law Serv. Ch. 283 (May 2004).

21 Berning, A., Beirness, D., et. al.  (November 2007). Breath Test Refusals. (Report No. DOT HS 810 871). Washington, DC: National Highway Traffic Safety Administration at 2.

22 Haire, E., Leaf, W., et. al., (April 2011). Use of Warrants to Reduce Breath Test Refusals: Experiences From North Carolina. (Report No. DOT HS 811 461). Washington, DC: National Highway Traffic Safety Administration.

23 State v. Trahan, A13-0931 (10/13/2015) rev. granted (11/25/2015) and urine tests (State v. Thompson, A15-0076 (12/28/2015).

One Comment


  1. Jon K. Sannes
    Feb 09, 2016

    Thanks for writing this article (exactly as it was written), addressing realistic constitutional concerns.

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