So, here's the Twitter conversation that precipitated this post:
@MyLittleBloggie 5x8 fodder: PDGirl's latest blog/rant on Brooks decision last week. h/t goes to @NFTmonosyllabic http://notforthemonosyllabic.blogspot.com/2013/10/the-brooks-decision-coercion-isnt-even.html …
(Sidenote: I'll ignore that he referred to it as a "rant," but only because I'm nice. And because I refer to this blog as a rant frequently.)
@RunOfTheShipe @NFTmonosyllabic I think that was a lousy case to test the law. Isn't there someone who DIDN'T verbally consent somewhere?
@MyLittleBloggie @NFTmonosyllabic The concurrence was interesting, sounds like Stras only partially agreed; not enough to fully disagree.
@RunOfTheShipe @NFTmonosyllabic To me Stras' concurrence made no sense. "Sure it's coercion; use it anyway, prosecutors."
@RunOfTheShipe @NFTmonosyllabic but what killed 'em was in arguments, Brooks' attorney didn't challenge implied consent itself.
@MyLittleBloggie @RunOfTheShipe they actually did challenge the IC as coerced & unconstitutional but the Court disagreed w/ that argument.
@NFTmonosyllabic @RunOfTheShipe in the args, gildea asked if he was, and he said no. I didn,t get the legal nuance
@MyLittleBloggie @NFTmonosyllabic He ended up saying evidence came from "good faith seizure," voiding the point the defendant was coerced.
@MyLittleBloggie @NFTmonosyllabic Scary because Stras basically said that 4th amendment doesn't apply to your bodily fluids.
@RunOfTheShipe @MyLittleBloggie actually I think Stras said it did apply, but it didn't matter bc of "good faith."
@RunOfTheShipe @NFTmonosyllabic I got the impression the court was inviting a Better challenge than this one.
First, I'm super excited that people are talking about nerdy legal stuff because it's important and people should talk about it but they often don't. So, woo-hoo for discussions!
Now that that is out of the way, on to the task at hand. More on Brooks and the Implied Consent.
I will start by saying my statement that they did challenge the IC as coerced and unconstitutional was not entirely accurate, because I only have 140 characters on the Twatter machine. What Brooks's attorney argued was that the IC was coercive and thus, the "consent" provided by Brooks was invalid. Brooks's attorney didn't argue (so far as I know) that the IC itself was a problem.
As Bob Collins properly notes, the cases may not have been the best ones to challenge the law, since Brooks actually did consent in his cases. In the defense's defense (see what I did there?!), they were stuck w/ the facts that they had and that meant a situation where the defendant had consented.
How did Brooks's cases get to be our test cases in the first place? Well, because Brooks's cases were sent to the Supreme Court of the United States, who then vacated the convictions and remanded them back to the State to review them pursuant to McNeely. So, Brooks became the first case on this issue to go up to our Court because SCOTUS said so.
The problem with the Brooks case is that, while it doesn't directly address a case where a defendant refuses to give consent to a test, the language of the ruling does strike at the heart of many of the refusal cases' main argument. The coerced-consent and test-refusal arguments are closely related arguments.
First, we have the coerced consent argument, when the challenge is to a test given with the defendant's consent after being informed that refusal to consent is a crime: Being told to consent or face being charged with a crime = coercive = no validly obtained consent = results suppressed..
Next, we have the test refusal argument, when the person refuses to consent to a test and is then charged with a crime for refusing to give a test: The IC says that a person must consent or face criminal charges = violation of a person's right to be free from unreasonable searches and seizures = crime of test refusal is unconstitutional because you're being forced to "consent" or be charged with a crime.
Brooks argued that the coerced consent meant his tests couldn't be used against him, because it was unconstitutional to condition a privilege (driving) on a waiver of your right (to refuse to submit to testing). The Court found this to be a faulty argument:
..."Specifically, Brooks contends that the Legislature does not have the power to imply someone’s consent to waive his or her Fourth Amendment rights as a condition of granting the privilege to drive in Minnesota. Brooks’s constitutional argument fails.
As a threshold matter, Brooks’s argument is inconsistent with the Supreme Court’s discussion of implied consent laws in McNeely. As the Supreme Court recognized in McNeely, implied consent laws, which “require motorists, as a condition of operating a motor vehicle within the State, to consent to [blood alcohol concentration] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense,” are “legal tools” states continue to have to enforce their drunk driving laws. ___ U.S. at ___, 133 S. Ct. at 1566 (plurality opinion) (emphasis added). The Court noted that these laws typically require suspected drunk drivers to take a test for the presence of alcohol and mandate that a driver’s license will be revoked if they refuse a test. Id. By using this “legal tool” and revoking a driver’s license for refusing a test, a state is doing the exact thing Brooks claims it cannot do—conditioning the privilege of driving on agreeing to a warrantless search."
So far, the arguments at the district court level are precisely that--the government cannot condition a privilege on agreeing to a warrantless search, as that violates a person's right to be free from unreasonable searches and seizures. While there is certainly more argument to be made in a straight test refusal case than there was in Brooks, the language of Brooks seems to shoot the test refusal cases argument right in the heart. Although the Court determined that Brooks consented in his cases, this language is problematic for test refusal and implied consent cases, as the Court clearly believes that conditioning a privilege on a waiver of your constitutional rights is completely reasonable and not at all problematic. Because, as I previously noted, the Court missed that whole thing about being charged with a separate crime for test refusal and why that's different than just losing your license temporarily.
Of course, it is problematic, because exactly where does this end? There are lots of privileges we have as citizens. Will they all be conditional on waiving your constitutional rights so that it's easier for law enforcement to "catch the bad guys?" It's a slippery slope till we are at a place where you must consent to allow officers into your home or otherwise search your personal items or lose a privilege (AND in Minnesota, be charged with a whole separate crime for extra fun!).
However, Brooks was not solely or mainly about the IC and test refusal cases. I'm sure that eventually there will be an IC/test refusal case in front of the Court (or quite possibly, SCOTUS) that will force the courts to more specifically answer whether the government can force you to give up your constitutional rights.
Let's hope that they decide not to grant the government that much power.