Correction: It will be Brooks oral argument, parts 1, 2 and 3. Today, the consent issues
The Tale of the Many-Horned Dilemma
I am not above engaging in a bit of soothsaying when I listen to the arguments in a case, but when it comes to the consent issues in Brooks, this pastime seems more than ordinarily ill-advised. Brooks asks the Minnesota Supreme Court to solve a riddle that juxtaposes Fourth Amendment consent and that euphemistical creature, implied consent. Or, more precisely, our Court is asked to discern how SCOTUS would solve that riddle, since, when it construes the Fourth Amendment, the Minnesota Supreme Court tries its best to follow a path laid down by SCOTUS.
On this occasion, it is an awfully obscure path.
Implied consent tells us that Mr. Brooks consented to be searched long before police officers handed him a plastic cup and asked him to unzip his trousers. His consent was consummated the moment he got behind the wheel of his car and drove it onto a road.
Minnesota’s version of implied consent adds a critical twist: if Mr. Brooks declined to submit to testing, he would be charged with the separate crime of test refusal. (Mr. Brooks did not refuse.) Fifty states have implied consent laws. Only nine of them criminalize test refusal.
Brooks’s counsel, Jeffrey Sheridan, argued that the “consent” imposed by implied consent (even Chief Justice Gildea used air quotes to describe it) is something other than Fourth Amendment voluntary (i.e., uncoerced) consent. Sheridan challenged the claim that Mr. Brooks consented for Fourth Amendment purposes just by electing to get in his car and drive. He argued that it is unconstitutional to condition an individual’s privilege to operate a motor vehicle on the forfeiture of his right against warrantless searches.
Sheridan also argued that, given the inclusion of criminal test refusal in Minnesota’s implied consent scheme, Mr. Brooks’s actual submission to testing cannot be considered as consent in the Fourth Amendment sense. Sheridan cited Bumper v. North Carolina, in which the suspect’s grandmother told the police officers who came to her front door to “go ahead” after one of them announced, untruthfully, “I have a warrant.” Bumper holds that mere acquiescence to a claim of lawful authority is not genuine consent. Chief Justice Gildea observed that Bumper “seems to me to be pretty similar to the statute here that says, if you don’t agree to take this test, it’s a crime.”
But Justice Stras brought up what may prove to be the biggest fly in Brooks’s ointment. What, he asked, is the Minnesota Supreme Court to make of this language from McNeely?:
States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 states have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. . . . Such laws impose significant consequences when a motorist withdraws consent; typically the motorists’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.
As Justice Stras noted, this passage appears in a portion of Justice Sotormayor’s opinion that only a plurality of the Court — Justices Scalia, Ginsburg and Kagan — joined. It does not count as a holding, but it may serve as a portent. After all, the five justices who dissociated themselves from Justice Sotomayor’s language — Justice Kennedy, the fallen-away fifth vote, who felt it necessary to reassure in his separate opinion that “[s]tates and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment”; Chief Justice Roberts, joined by Justices Breyer and Alito, who proposed a hard-and-fast rule that would permit a warrantless blood draw in any situation in which a warrant could not be obtained in the time it took to transport a suspect from the site of the stop to a medical facility; and Justice Thomas, who would permit all blood draws without a warrant — are not likely to be less supportive of implied consent laws than the four justices who signed on to McNeely’s endorsement of them. There is simply no appetite on the United States Supreme Court for adopting a constitutional theory that would do away with implied consent laws en masse.
In South Dakota v. Neville, SCOTUS held that forcing a suspect to choose between submitting to blood alcohol testing or face having evidence of his refusal admitted at his DWI trial did not constitute “compulsion” for purposes of the Fifth Amendment. “[T]he criminal process often requires suspects and defendants to make difficult choices” is Neville’s most-quoted line. The Minnesota Supreme Court applied Neville in McDonnell v. Com’r of Public Safety. That a new horn, a criminal test refusal charge, had been added to the defendant’s dilemma did not in the view of the McDonnell Court alter Neville’s Fifth Amendment compulsion calculus at all.
Our Court must decide to what extent the analyses of Fifth Amendment compulsion and Fourth Amendment coercion coincide. Assuming some overlap, Sheridan distinguished Neville as permitting difficult choices, not impossible ones. He argued that criminalizing test refusal turns the “choice” to refuse testing into a sham, an illusion. The line that Sheridan draws seems reasonable. Among other things, it is faithful to McNeely’s nature as a categorical warrant case. But does it represent, for our Court (which would doubtless prefer not to have to guess), a sure step, a confident move in a direction clearly laid out by SCOTUS?
Nah. It’s kind of a crapshoot.