Wednesday, February 11, 2015

We'll find any way to get around that pesky 4th Amendment

So, remember back in March when I discussed a recent MN Court of Appeals case, State v. Bernard? And I was super incensed by how ridiculous it was and how it managed to completely destroy the entire 200+ years of 4th Amendment jurisprudence?  Well, it was appealed to the MN Supreme Court, which was exactly what everyone expected would happen.  And today, the MN Supreme Court made a decision on that case, which is still way off-base in my opinion, but at least it did not completely decimate the 4th Amendment the way the Court of Appeals' decision had done. 

It's still a decision that doesn't seem to grasp how the exceptions to the 4th Amendment work and still comes out with the wrong holding. And makes bad law that doesn't make sense with other laws already in place and established for a long time. 

So, as usual, let's review this case with swear words and colorful language:

As always, let's start w/ the background info needed to understand the court's decision. 

First up, let's go over what happens when you've been arrested for a DWI and you are being asked to submit to a blood, breath, or urine sample in order to determine your alcohol concentration. 

Prior to asking you to submit to the test, the cop is required by law to read you what's called the Motor Vehicle Implied Consent Advisory (MVICA for short). In that, you are informed that the officer suspects that you're driving a car while intoxicated and that he wants you to submit to a test. You are also informed that MN law makes it a crime to refuse the test and that if you want to contact an attorney before deciding whether or not to take the test, you can have time to do that. If you can't reach an attorney, you will eventually have to decide on your own if you will submit to the test. (The obvious outcome of reaching an attorney is that the attorney will tell you to take the test, since a lawyer can't encourage or advise you to break the law and not submitting to the test is breaking the law). 

The reason the police are required by law to tell you all this is that the MN Supreme Court has decided in the past that the MN Constitution provides you with a limited right to consult with an attorney before testing, since the testing is considered a "critical stage" of the criminal proceedings and you're entitled to an attorney during all critical stages of criminal proceedings.  If you were to be arrested for a DWI and you requested the officer allow you time to contact an attorney before testing and the officer didn't let you, the results of your test could be suppressed because your right to counsel had been violated. 

Second up, let's talk about searches incident to arrest.  I've probably talked about this topic in the past, but it's always good to have a refresher. 

When you're arrested, the law allows for police to conduct a warrantless search that is called a search incident to arrest.  This permits the officers to search you and the area in your immediate control in order to prevent the destruction of evidence and to protect officer safety. Essentially, this exception to the warrant requirement was established because they didn't want cops getting shot while they waited to get a warrant or for the suspect to destroy evidence while the cops waited to get a warrant.  The search has to be fairly close in time to the arrest--they can't search several hours after arresting you and claim it's a search incident to arrest, because that would defeat the purpose of the exception. 

For a long, long time, this exception allowed officers to arrest you during a traffic stop, put you into the back of the squad car, and then they would just go rummaging through your car to find whatever they could find. That was what the police routinely did. 

But, in 2009 or so, the US Supreme Court decided that the search incident to arrest exception was being improperly used. The Court decided in a case called Arizona v. Gant that the unchecked rummaging in people's cars after they'd been arrested really was not what they had had in mind when they created the search incident to arrest exception. The Court made it explicitly clear that if the person has been arrested and is secured (like in the back of the squad car) such that it would be impossible for them to destroy evidence or grab a weapon, then the exception didn't apply anymore so the cops couldn't go searching the car without showing an actual threat to the officers' safey or the need to preserve evidence related to the crime the suspect's been arrested for. So, no more arresting people and then going through their shit just because. So that's a good thing. 

Third up, you may recall that I've previously discussed the Brooks case on a couple of different occasions. The main thrust of the Brooks decision was that if you are read the MVICA and you agree to take the test, then the police don't have to get a warrant for the test because you consented to the test and consent is a valid exception to the warrant requirement.  The main argument against this by defense attorneys was that being told that refusing to take a test, after being handcuffed and arrested, is coercive, so that doesn't really count as actual consent since you're being forced to consent.  But, the MN Supreme Court disagreed, saying that while it might be an uncomfortable choice, the person still has a choice to submit or not submit. Brooks dealt with people who had agreed to give the test. 

Now, let's get to the meat of the discussion today--the Bernard case. Bernard deals with people who refuse to take the test. The argument that Bernard's attorney was making was that the state can't criminalize a person's right to refuse a request to submit to a warrantless search. In a nutshell--we all have the right to be free from warrantless, unreasonable searches and seizures.  The US Supreme Court said in McNeely that just because alcohol naturally dissipates in a person's system over time, that doesn't create an exigent/emergency circumstance to bypass getting a warrant. Cops need some other way around the warrant requirement to get a DWI test or they need to get a warrant. The defense attorney in Bernard argued that there was no other valid exception to the warrant requirement, so it was unlawful to FORCE a person into allowing a cop to search (and avoid getting a warrant) by making it a crime not to consent. 

Sounds like a good argument. What's the point of the Constitutional protection to be free from warrantless, unreasonable searches if the government can just make laws that make it a crime to exercise that right? That would defeat the entire purpose. 

The district court agreed and dismissed the Test Refusal charge against Bernard.  The Court of Appeals disagreed and reinstated the charge, coming up with some total and complete nonsense to support its decision. Finally, today, the MN Supreme Court came out and said--"Well, we disagree with the district court and the defense attorney, but not for the bullshit reason the Court of Appeals made up; instead, we're going to call a blood, breath, or urine test a search incident to arrest. And since a search incident to arrest is a valid exception to the warrant requirement, citizens don't have any right to refuse the search, so the Test Refusal law is perfectly legal and there's nothing wrong with it at all." 

Too bad that doesn't make much sense, given what the history of the search incident to arrest exception is and what it's purpose is for and a myriad of other reasons. 

Problem one: the Court ignores the entire basis for allowing a search incident to arrest exception, which is to allow officers to search to prevent the suspect from destroying  evidence or to protect officer safety. The fact that alcohol dissipates over time isn't "destruction" of evidence by the suspect. The suspect can't willfully speed up his metabolism to make the alcohol burn off faster or somehow magically make his body process it out quicker to get rid of it. Nor can a suspect quickly reach into his lungs or his bladder or his veins and grab a weapon from there with which to harm the officers. So, the entire premise of the search incident to arrest is completely ignored by the MN Supreme Court in reaching its decision that a DWI test falls under the search incident to arrest exception. They decided that the requirement that the search be to prevent destruction of evidence or officer safety only applies to the area immediately around the person, so the reasoning in Gant doesn't apply. They can search you--your body and now apparently, inside your body--without needing a warrant. It's a search incident to arrest to obtain bodily specimens from you. 

Problem two: This reasoning makes no sense with the Brooks reasoning. You have no right to refuse a search incident to arrest, so you do not have a choice in submitting to the search. But according to Brooks, you do have a choice, albeit one you may not particularly like. These two decisions do not make sense with one another. 

Problem three: No other situation where an officer is going to conduct a search incident to arrest requires the officer--by law--to read some kind of advisory to the person prior to conducting the search, request that the person submit to the search, and then allow the person to call an attorney before deciding if they want to submit to the search. In every other possible search incident to arrest situation, the officer doesn't ask the person's permission; the officer doesn't give them some nice advisory about what's going to happen; the officer doesn't provide them with a phone and phone books to contact a lawyer to discuss the situation--they just conduct the search because it's permitted by law. So, now according to the MN Supreme Court, we have a special kind of search incident to arrest specifically for DWI suspects who are being asked to submit to a test. Why even ask them? Just force them to get a blood test or force them to provide a breath or urine sample. They don't need to consent, because the police have an exception to the warrant requirement. 

Problem four: The law also says that if the person refuses, then no test shall be done. I'm not aware of any other situation where a person can say they don't want the officer to conduct a search incident to arrest and the officer is prohibited by law from conducting that search. That applies only to DWI tests, apparently. Which means that--oh, wait...maybe this isn't a search incident to arrest after all...

Here's what really went on in this decision--the state wants to be able to force people into giving blood, breath, or urine samples in order to convict people of DWIs. Because those are the most horrible of all crimes and we should do everything possible to prevent them, even if it means stomping all over the Constitution because who the fuck cares about that when someone is driving at a 0.08?  The Court wants the state to be able to force people into giving DWI tests, but the US Supreme Court crapped all over the previous excuse that Minnesota had been using forever--that it's an exigent circumstance that alcohol dissipates over time so the cop doesn't have to get a warrant. So, now the state and the Court have to get creative and figure out a way to keep forcing people to give DWI tests and pretend that it's not completely inconsistent with existing law and precedent. So, the Court plucked the "search incident to arrest" exception as the way to continue forcing people, since the other exceptions can't even arguably begin to apply to a situation where a person refuses to voluntarily provide the sample (the other exceptions are hot pursuit of a fleeing suspect, plain view of illegal evidence, consent, stop and frisk, and probable cause to believe there's evidence inside an automobile). So, they went with the only exception that could even remotely be argued to apply when a person refuses to give consent to the test--search incident to arrest. And then, ta-fucking-da, the Test Refusal statute gets to stay  in place! 

It's a nonsense holding and it creates a special category of searches incident to arrest that applies only to DWI tests, which is not how the 4th Amendment works but apparently the MN Supreme Court doesn't really care that much about that. 

Even if you don't read the entire opinion, the dissent by two of the justices, Page and Stras, is well worth the read. They make sense. The majority--not so much. 

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