Monday, March 17, 2014

MN Court of Appeals says, "If the police COULD get a warrant, then it's totally fine if they don't."

I am so appalled today by the recent MN Court of Appeals decision regarding Test Refusals that I can't even express it in words.  I'm sure I'll have more to say once I've had time to stop beating my head against my desk, but here's today initial reactions to this wrong, wrong, wrong decision. 

The case is State v. Bernard.  It's a published decision, which means that the lower courts (such as the ones I spend all my time working in) are required to follow the holding in the case.  And what was that holding?  Well, here it is: 

"The state is not constitutionally precluded from criminalizing a suspected drunk driver’s refusal to submit to a chemical test under circumstances in which the requesting officer had grounds to have obtained a constitutionally reasonable nonconsensual chemical test by securing and executing a warrant requiring the driver to submit to testing."

Let's pull out the important pieces of that extremely wordy sentence and break it down. "The state is not constitutionally precluded from criminalizing...refusal to submit...under circumstances in which the requesting officer had grounds to have obtained...a warrant." 

Okay. What does that mean, exactly?

Well, here's the case background in a nutshell--this guy, Bernard, gets arrested for a DWI and the cop reads him the Motor Vehicle Implied Consent Advisory which asks him to submit to a blood, breath, or urine test and that refusing to take the test is a crime. Bernard says no, he's not going to take the test. Bernard then gets charged with the crime of Test Refusal. 

Bernard's attorney argues at the district court level that a person can't be charged with a crime for refusing to submit to a warrantless police search.  No warrant and no exception to the warrant requirement applies, so Bernard's attorney argues that Bernard has a right under the 4th Amendment to refuse to allow police to search him. The district court agrees and throws out the charges. 

State then appeals to the Minnesota Court of Appeals and says they should be able to charge people for refusing to submit to a search of blood, breath, or urine. 

Then, either the Court has lost its mind or I have absolutely no functional understanding of the 4th Amendment jurisprudence for the last 200+ years, because the Court decided the reinstate the charges.  And here's what the Court had to say in order to reach its holding: 

"Because the officer indisputably had probable cause to believe that Bernard was driving while impaired (he was identified by witnesses as the driver, he was holding the truck keys, and his wardrobe, instability, and odor indicated that he was intoxicated), the officer also indisputably had the option to obtain a test of Bernard’s blood by search warrant....  So at the time the officer asked Bernard whether he would submit to a breath test, the officer could have just as lawfully asked an independent jurist to issue a search warrant to test Bernard’s blood.  
In other words, the officer had a lawful option to require Bernard to submit to a chemical test, based on a search warrant, and he instead gave Bernard the choice to voluntarily submit to warrantless testing. That the officer chose one approach (the authority to make the request under the implied consent statute) rather than another (the authority to obtain a warrant under the impaired driving statute) does not make penalizing Bernard’s decision unconstitutional because the consequent testing under either approach would have been constitutionally reasonable. 
We recognize that the officer did not actually possess a search warrant at the time of his request, but the constitutional and statutory grounds for a warrant plainly existed before the request."

This both makes my head hurt and terrifies the living shit out of me. Since an officer has the option of obtaining a search warrant, BUT DOESN'T ACTUALLY DO IT, I can be charged with a crime for not submitting to his request to search?? The Court couldn't have done a better job of completely gutting the 4th Amendment's requirement for a neutral and detached magistrate to issue a warrant if it tried!! The entire purpose of a fucking warrant is so that someone other than the cop who might not be in the best position to decide can review the cop's information and decide if it's sufficient for probable cause.  

But now, according to Bernard, if the cop had the option of getting a warrant (which, by the way, technically they have that option at any given time--going and asking for a warrant doesn't require anything besides filling out some paperwork. Whether there's sufficient info to have that warrant signed by a judge is a different story, but the option to fill out that paperwork is always there!), but decided to just ask the suspect instead, then it's fine to charge the suspect for not consenting to that warrantless search. 

I can't even wrap my head around this nonsense.  Honestly, the logic in this is something I can't even begin to understand. Maybe I'm just a complete idiot and should stop being a lawyer because I don't get it. I don't understand how the Court of Appeals reached this decision with a straight face because it's going to open the floodgates for the government to make all sorts of laws criminalizing refusal to submit to a warrantless search. Imagine, a law that's passed that says if police have probable cause to believe you committed a crime--any crime--and they arrest you for that and then they ask you to search your home, if you say no, then you get charged with a crime for refusing.  Guess what? Pursuant to Bernard, that's totally fine!! Fuck off, stupid Constitution! The legislature made a law requiring suspects to consent and if the police could have gotten a warrant (and why, OF COURSE they could, because clearly if they've arrested you, that's enough for a judge to sign off on that search warrant), but didn't and just asked for your consent instead, well, then you can get charged with a crime.  Screw your right to refuse to consent to a search. 

Here's an idea to make sure we ALWAYS have access to whatever evidence we need to prosecute people. Why doesn't the legislature make a law that says, "If a person is lawfully arrested on probable cause of having committed any criminal offense, an officer may request to search the suspect's home, vehicle, place of work, and any other areas/locations where evidence may be contained.  Failure of a person to consent to this request is a crime." 

Because apparently, the Court of Appeals thinks it's perfectly fine to have a law like that in place, since the police could go get a warrant.  But, why make them?  That's just too much to ask. 

If you're not terrified by this decision, you should be. Because here's the real bitch--let's say, for example, that the cop was wrong.  Let's say it's you, dear NotfortheMonosyllabicer, that is arrested for a DWI.  But, you know you're not drunk.  In fact, you know you haven't had anything to drink--but, the cop doesn't agree with that.  The cop thinks you are and he arrests you.  He reads you the Implied Consent Advisory and you think to yourself, "no, I'm not consenting to a search because I don't have to--the cop can go get a warrant if he thinks I did something wrong." So you say no, you're not going to provide a test.  And then, you get charged with a Test Refusal.  Even if you are 100% innocent of the underlying suspected crime for which you were arrested, you are still guilty for not cooperating with the police officer's request to search you without a warrant. 

Fucking terrifying. 


  1. Anonymous8:38 PM

    If I understand what you're saying, then if the defense tries to suppress the evidence found in the warrantless search, the judge will have to decided if the cops would have had probable cause if they had chosen to ask for a warrant at the time of the search. Wow. In my mind the argument against the suppression motion includes something like this: "Hi Judge, We could have come to you earlier to ask for a warrant, and if you had turned it down, we maybe could have gone back to do more work to strengthen the probable cause or find evidence some other way. Instead, we just grabbed what we wanted without a warrant, and now if you refuse to agree we had probable cause then there's no way to fix it because we already did the search so our whole case falls apart and a criminal goes free. So let us know what you want to do. No pressure."

  2. That's pretty much my read on it. It's a ridiculously nonsensical outcome in the case.

  3. Anonymous6:55 AM

    ok now whats going to happen to all the pending dwi cases that are out there

    1. I would expect that this will get appealed to the MN Supreme Court, so all the pending DWI cases will continue to be in limbo for now. the district courts will have to follow the holding in Bernard unless & until a different ruling comes from the MN Supreme Court. so basically, everything is still in limbo for now.

  4. Cops can’t arrest anyone just because he thinks he can. He can go and get a warrant but nothing can be done before that. If you are facing charges, have an honest discussion with your DUI attorney about the fees in advance. Also make sure that lawyer has never been reprimanded, suspended, or dis-barred. My brother is system admin at a DUI lawyer office and he often tells me how DUI cases if not fought properly can destroy your life.