Thursday, October 24, 2013

The Brooks Decision--coercion isn't even a real thing

Oh, how the Minnesota Supreme Court disappoints lately with its terrible, terrible, completely inane rulings. Yesterday was no exception. Yesterday they delivered a nonsense, ridiculous opinion that doesn't make any sense w/ already established case law. Because apparently, the Court isn't interested in making sense. 

Yesterday's decision was about a recent US Supreme Court case, Missouri v. McNeely and a couple of Minnesota cases, referred to as Brooks. Prepare yourself, kids, because this is gonna be a lengthy discussion.  I will do my best to not talk like a douchebag lawyer about it, so that everyone can understand how stupid this decision really is--I'm thoughtful like that. 

So, here's the situation: 

First thing to know is that, any time police want to search something or someone and/or want to take possession of items, they need a warrant.  That's the basic rule.  However, like everything in life, there are exceptions to the rule. Six of them, to be exact. Those are: 1) search incident to a lawful arrest; 2) plain view; 3) consent; 4) stop & frisk; 5) automobiles; and 6) exigent circumstances (aka emergency).  So, if the police want something, they either have to have a warrant or one of those 6 exceptions have to apply. If neither of those are true, then the evidence they seized/searched is subject to being thrown out of court. For this discussion, only 2 of the 6 exceptions apply: exigency and consent.

Now that we've got that baseline understanding, let's review how Minnesota's case law on DWIs has shaped up in the past. The usual routine in DWIs was that a person was pulled over or otherwise had some interaction w/ the police and while the officer is talking to the person, the officer starts to think the person might be under the influence. They do some field sobriety tests and if they fail, the officer arrests them for DWI.  After being placed under arrest, the officer reads the person what's called the Motor Vehicle Implied Consent Advisory.  This informs the person that the officer is requesting that they take a blood, breath, or urine sample to determine if they are under the influence and that refusing to take a test is a crime. Some people refuse to take a test and then no test is administered; others do take the test and the results are used against them in the case. 

A few challenges to this process have arisen in Minnesota law over the years; namely, people argued that the requirement to test or be charged w/ a crime was coercive, so the "consent" to the testing wasn't voluntary and therefore, couldn't be used as an exception to the warrant requirement.  The Courts in Minnesota basically decided that it didn't matter if the requirement was coercive, because that wasn't the exception police could use to get around the warrant requirement.  Rather, the Courts decided that the fact that alcohol eventually burns off in a person's system and thus, the evidence of the person's alcohol level would be lost over time, created an exigency. The Court held that fact alone was enough to allow officers to avoid having to get a warrant in order to obtain a sample.  So, essentially, the Courts skipped over the question of whether the "consent" was voluntary or not, because they said, "Who cares? It's not consent we're looking at to get around the warrant requirement, it's exigency." 

For a long time, that was the law in Minnesota--dissipation of alcohol in the system = exigency = no warrant needed = who cares if the "consent" to the test is invalid because we've got exigency to cover our butts. 

Then, along came McNeely in April 2013.  And in that case, the US Supreme Court said, "Hey, guess what? Just the fact that alcohol dissipates over time in the body does not create an exigency sufficient to get around the warrant requirement.  Police need more than just that single reason to avoid the warrant requirement." 

Boom--out goes basically the entire line of DWI case law in Minnesota. Now, the police need more than just that alcohol burns off over time to show an exigency in order to get around the warrant requirement. So, that leaves the police with only one other exception to rely on--consent. 

However, in order for consent to count, as I mentioned earlier, it has to be voluntary.  The police can't beat you until you consent, for an extreme example. If the consent to a search/seizure isn't voluntary, the evidence can't be used because it wasn't valid consent. 

So, along comes Brooks.  In this case, the argument was multi-faceted, but the main part that makes me want to beat my head against the wall is the holding regarding consent.  In the Brooks case (which was actually 3 cases consolidated into one), Brooks was arrested for DWI and eventually consented to give a test, after being arrested and being read the Implied Consent Advisory. 

Here's the defense's basic argument: when you're arrested, when you are handcuffed by a uniformed police officer, and when you are read an advisory that tells you that MN law requires you to take a test and that refusal to take a test is a crime, that's coercive. Any "consent" in that situation is coerced--how much more coercive can it get than being told "Do this or get charged with a crime?" 

The State's argument was basically, "No, it's not." 

The Court in Brooks decided that being arrested, handcuffed, and told to take a test or be charged with a crime is not inherently coercive. Excuse me for one moment while my head fucking explodes. I can think of only a few situations more coercive than being told to consent to a search or face charges and most of those are horribly obvious--beating someone into consenting; threatening to kill them or their loved ones unless they consent, etc. Being told you're going to be charged with a crime is pretty damn coercive, if you ask me. 

The reason that this is even more stupid of a holding is that the Court relied on a South Dakota case, Neville, which is so completely not the same situation that it's ludicrous the Court even used it.  In Neville, a person was arrested for a DWI and told that if they refused to take the test, they could lose their license and that the fact that they refused could be used against them in any prosecution for the DWI charge. 


The South Dakota Court determined that the fact that the person would face administrative penalties such as losing their license was not coercive enough to make any consent to the test invalid. 

But, that is a completely different situation than what happens in Minnesota. In Minnesota, refusing to take a test doesn't just result in you losing your license--it results in you being charged with a crime and facing the possibility of losing your liberty and freedom. That's a much, much, much more severe penalty than simply losing your license if you refuse to take a test. But this distinction is apparently lost on the Minnesota Supreme Court, who determines that the fact that a choice may be "uncomfortable" for a suspect doesn't mean it's a coercive choice, and Neville is helpful in explaining why that's the situation. 

No. Just no. 

Neville is a case about losing a privilege--the privilege of operating a car.  There was no separate crime that a South Dakota person who refused to test would be facing.  But in Minnesota, suspects do face a separate crime. In fact, it's very, very common for people to be charged with a Test Refusal and a DWI in the same charging document. 

The fact that the Court completely ignored the difference between losing your license and losing your freedom is mind-boggling.  Especially when you consider the fact that a first time DWI offense is a misdemeanor (maximum sentence is 90 days in jail) but a first time Test Refusal offense is a gross misdemeanor (maximum sentence is 365 days in jail). 

This ruling is so off-base it's insane.  If being arrested, handcuffed, transported to a police station, and then told to consent to a test or face a criminal charge isn't a coercive situation, it's hard to imagine what is.  This undermines the very idea that consent has to be voluntarily given in order to be valid. It guts that whole concept, because now it's going to be nearly impossible to argue that a suspect was coerced into consenting to a search, short of the police beating the suspect or something completely outrageous like that.  Threats of new, separate, and additional criminal charges aren't coercive, apparently. 

Even more troubling than the Court's holding is Justice Stras's concurrence.  While Stras holds that Brooks's consent was invalid because it was coerced (yay for someone thinking logically!), he goes on to say that the police acted in "good faith" pursuant to the law at the time, so the illegally seized evidence should not be thrown out of court. 

The US Supreme Court has allowed for a so-called "good faith" exception to the general rule that illegally seized evidence is not admissible in court.  Basically, if officers thought they were doing things the proper way, then even if there was a violation of a person's rights, it wasn't intentional, so the evidence can still be used.  But, state supreme courts can make tighter, more restrictive controls for police officers' conduct.  And the Minnesota Supreme Court has specifically declined to adopt a "good faith" exception. There have been cases where the State has advocated for such an exception and the MN Supreme Court has specifically refused to adopt it.  That has been the precedent in Minnesota since at least 1996--almost 20 years. 

However, Stras seems to just ignore that 20 years of settled case law and precedent by saying that in Brooks, the officers were acting in good faith, so the good faith exception should apply and the evidence shouldn't be suppressed.  Because he apparently missed the fact that Minnesota doesn't have a good faith exception so what in the actual fuck is he basing his decision on??  Not only does Minnesota not have that exception, the Court has specifically refused to have that exception.  It's not as if the issue has never been raised before or the Court has never made a decision one way or the other about it.  The Court has--it was no.  And prior court rulings are supposed to control the Court's future decision unless there is some compelling reason to deviate from precedent.  Stras's concurrence doesn't give any reason as to why the precedent on the good faith exception in Minnesota should be ignored.  He just willy-nilly decides that there should be a good faith exception and to hell with all that prior case law and precedent. 

Everything about the Brooks decision makes me want to tear my hair out.  It's illogical and stupid and Stras's concurrence is frightening in how cavalierly it dismisses precedent.  There is nothing good about this decision and it further chips away at our rights as citizens.  Now, being forced to consent to a search upon a threat of being charged with a crime is not coercive. Where does it end? Right now it's requests to test for DWIs.  But this case law is now precedent, and it can be used to argue that it should apply to "requests" to "consent" to other types of searches.  And it will be, I'm sure.


  1. Anonymous4:03 PM

    Should the police be required to get a warrant for all DWI tests then or would there be another legally sound way around it?

    1. My understanding after the McNeelydecision is they need a warrant, unless all the circumstances created an exigency (for example, one officer responds to an accident, is busy attending to people who are injured, and there isn't time to obtain a warrant because the officer is trying to deal w/ the accident). There is no dispute that DWI tests are a search so that means they need a warrant or an exception to the warrant requirement.