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:

Minnesota's high court gets it wrong again

I'm a bit late on this, but it's still interesting, so I wanted to touch base on it.  Recently, the Minnesota Supreme Court ruled that the necessity defense does not apply in cases that deal with a person's loss of their driver's license for a DWI. 

It's a case called State v Axelberg and it's a case where the court had a perfectly situated defendant for the necessity defense, but instead of doing justice, the Court did nothing and furthered the injustice of the situation. 

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?

The U.S. needs a new Constitution like a fish needs a bicycle

Recently, there was an article in The Atlantic about why the U.S. needs a new Constitution. Primarily, the concerns expressed were that the current Constitution is full of holes, promotes gridlock, and is extremely difficult to change. The problem w/ this premise is that the Constitution was designed to do precisely those things; those are not failures on the part of the Constitution, those are the things it was intended to do. 

More about Brooks

So recently, I ended up having a "discussion" on Twitter (if you can ever actually have a real discussion in 140 characters or less) about the Brooks decision, which I previously discussed over here. Because the conversation required more than 140 characters, I said that I'd blog more about it, since goodness knows I love any reason to run my damn mouth about things. 

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: 

Where are we going? And why are we in this handbasket?

SIGH. 

It's like a never-ending onslaught of destroying people's rights lately! Did no one take civics class in high school?? What is wrong with people lately?! Recently, this little piece by Lawrence O'Donnell from MSNBC started circulating on Twitter. And I saw it. And it made my head almost explode. 

Defending the public defenders

This article is probably the most offensive thing I've read about public defenders in a long time. It's so full of ridiculous assertions I barely even know where to begin. Let's review the idiocy put forth in this moronic article, bc I'm angry about it and feel like eviscerating it. 

DNA swabs and the Fourth Amendment, Round Two: Why Fingerprints and DNA are Different

First of all, OMG you guys, I made it into the MPR News Cut blog! I've made it in there a couple of other times, with a couple other posts, and I always feel really honored that my stream-of-consciousness ramblings are worthy of Bob Collins' notice. But this one was super exciting because he said yesterday's DNA post was "outstanding" and that "this is the kind of writing that legal reporting needs; it needs to wake up the people who think if they didn't commit a crime, what's the big deal about cases involving people who do?" So basically, I kind of felt like I won an Emmy or something. :D  

Now that I'm done gushing w/ excitement, let's get down to business.  Today's post is in response to a few reactions that I got about the DNA analysis from yesterday. Mainly, the primary question I was seeing was, "How is this different than taking someone's fingerprints for identification?"

I did answer that a little bit in yesterday's discussion, but I didn't fully go into it since there were so many things to be upset about and the post was getting pretty long. So, let's go into it a little bit more thoroughly and explore why this is NOT like fingerprints.

Fourth Amendment, Schmourth Amendment.

So, I couldn't not get mouthy about the latest Supreme Court travesty decision, Maryland v. King.  It was just released today and it's pretty much the worst.  If you're not familiar w/ it (and I'm guessing you're not because you probably have a life and don't read this kind of stuff for fun), the quick and dirty version of the case is as follows: 

Guy named King gets arrested for a "serious" offense (assault charges).  While he's being booked for this charge, the police collect a buccal swab from him as part of the booking process. (This is not routine in all states--yet. But I am guessing it will be soon after today's decision...).  Once they had this, they eventually ran it through a database of unknown DNA samples collected from other crimes and--what do you know--it matched DNA collected from an unknown perpetrator of a rape.  Boom, Mr. King now finds himself facing a new charge because his DNA matches that unknown DNA from the rape. 

The question presented was whether police could obtain a DNA sample from a person who was arrested--not convicted, just arrested and thereby still presumed innocent--without needing to get a warrant.  Now, pretty much every state allows the collection of DNA evidence to be collected from convicted persons.  That's a different situation entirely--those people have actually been found guilty and convicted of a crime.  However, when we are at the arrest stage of the proceedings, the person is not convicted and is not guilty of any wrongdoing. 

This is weird

This is a real picture I took as I was walking back from the courthouse to my office.  I don't even understand what this is.  I've named it "Flamingo Graveyard" because apparently it's where plastic lawn flamingos go to die.  It's also the side of a church, so a graveyard seems fitting. 

Seriously.  What is going on?

I'm not sure what this says about my life

The two biggest high points of my day today were managing to pull off wearing a cardigan instead of a suitcoat in court this morning and having the gas pump stop on $32.00 even without even trying.

Well that's good to know

Let's say you are mad and decide to choke/strangle someone. Not enough to cause them to black out or suffer any substantial bodily harm. Just a good ol' choking to let out your frustrations with them. And in this scenario, you are in Minnesota.
If you choke a "household or family member" (meaning anyone who you live with, have a kid with, are married to, had a significant sexual or romantic relationship with, etc.) then you will be charged w/ Felony Domestic Assault by Strangulation.
If you choke a stranger, your annoying co-worker, your kid's teacher, your friend, or anyone who isn't a family or household member, you will be charged w/ a Misdemeanor Fifth Degree Assault.
That misdemeanor could be knocked down to a disorderly conduct if it's a first offense. That's pretty much nothing.
So, the lesson here is only strangle friends, co-workers, or total strangers.
Thanks, silly Minnesota laws!

It's safe to say most women would not appreciate this...

I find the most disturbing part of this story that, not only did this lawyer have sex with his client, he then BILLED her for it! Insanity...
http://m.twincities.com/twincities/db_39164/contentdetail.htm?contentguid=DOPbyP8h

Oh Law & Order: SVU, you're so silly

I love L&O:SVU but sometimes they are so off-base it's silly. This particular episode is ridiculously full of errors it's insanity.
1. Judge sustained an objection for leading on cross-exam. In real life, leading questions are the whole point of cross-exam.
2. Just as the judge in criminal court was about to accept a plea bargain, a lawyer who represented the victim walked in and handed the judge a restraining order from civil court barring the judge from accepting the plea and ordering all the criminal court parties (including the judge) to appear in civil court the next day. Say whaaaaaaaaa? That makes zero sense! For one, it would be an injunction, not a restraining order, or possibly a writ of prohibition, but not a restraining order. For two, what the what? A judge who isn't a higher court judge ordering another judge how to do their job? Not happening.
Oh, silly script writers...maybe ask a lawyer about stuff...

Here is what I did this weekend

So, my step-dad went back in the hospital again and then back out. It's an ongoing debacle with his health right now. Blood too thick, then too thin, clots, pneumonia, necrotic section of his lung...it's a mess. But he is hanging on, so that is good. But he looks terrible. He is definitely struggling.
Other than that, Thanksgiving went well. It was small, just me and my mom, step-dad, my brothers, and a couple other people. But it was laid back, which was nice. I went over to my mom's place the night before and had a nervous-then-later-funny experience.
When I got to the house, the radio in the kitchen was on and it looked like Mom was in the middle of making something, but she wasn't there. I asked my brother where she was and he said she went to the store. But her car was still in the driveway, so I called her cell to find out where she was at and how long she would be. Then her phone rang in the kitchen. I went into the kitchen again and realized her cell phone, her purse, her wallet and her keys were all still on the kitchen table. So, at this point, I was getting concerned. I went outside and noticed there were wet tire tracks in the driveway. Out of an abundance of caution, I used my cell phone camera to take pictures of the tracks (and no, they weren't mine...I parked on the street).  I figured it couldn't hurt to have pics since they would eventually evaporate.
Turns out my mom had cash and had walked (in the dark) to the store. She made fun of me for taking pics but I reminded her that if something HAD happened to her, she should be glad I'd taken them. She kept calling me CSI all night. I told her it was her fault for leaving and making it look like an episode of Forensic Files.
So that is our funny story for this holiday season.