Text and Subtext

Unfortunately, you must read to the end for the Game of Thrones pay-off.

Unfortunately, you must read to the end for the Game of Thrones pay-off.

What does the Minnesota Supreme Court really care about?  Consider:  For his analysis of the Fourth Amendment consent issues in Brooks, Justice Stras required only 308 words, a mere two paragraphs.  But he needed 21 opinion pages in February’s State v. Nelson to explain why, in the criminal care-and-support statute,  “care” and “support” do not mean the same thing.  Granted, Nelson was a majority, and Brooks a concurring opinion — the writing conventions for each are different.  But the basic point remains. Add to Stras’s output in Nelson that of the two dissenting justices, and you wind up with 46 opinion pages devoted to the meaning of a three-word phrase.  The Minnesota Supreme Court cares a great deal about statutory construction.

Nelson reminds me of State v. Lessley, the case from a few years ago which addressed whether the state has the power under the Minnesota constitution to veto a defendant’s decision to waive a jury trial.  The surprise in Lessley was the extent to which originalism framed the terms of the debate, even at the state supreme court level. Originalism, of course, is the view that constitutions mean what their framers thought they meant, as versus the view that constitutions evolve with the times.  The majority opinion in Lessley was authored by Justice Paul Anderson, presumably no great fan of the Federalist Society.  As retired Rice County Judge Bill Johnson noted on this blog in 2010, it consisted of a “lengthy historical explication going back to the two competing constitutional conventions at the time of Minnesota statehood.”  There was “almost no discussion of the values, principles, and purposes underlying a right to waive a jury trial.”

Nelson strikes me as comparably telling.  Its combined 46 pages (imagine the Minnesota Supreme Court of a generation ago expending that kind of ink on a statutory construction case) attest to the influence of textualism in today’s legal culture.  Textualism is an approach to statutory construction that counsels reliance on text alone.  It discourages excursions into legislative history or pragmatic assessments of the problems a statute was intended to remedy.

On the surface, originalism and textualism do not appear to have much in common. Originalism requires that you examine history; textualism prefers that you ignore it. Originalism treats its framers as all-knowing.  Textualism treats its framers as no-knowing.  But fundamentally, originalism and textualism are both about the tending of sacred texts.  Originalists focus on what the texts’ framers intended while textualists just focus on the texts, but for both the words represent roughly the same thing:  a fixed point, a kind of legal pole star from whose stationary position knowledge may be measured with apparent certainty.  Originalism and textualism are both hedges against relativism. Their principal concern is curbing unconstrained judging.  And their stars have risen in tandem over the last 30 years.

In today’s climate, judges to whom the “restraint” tag is important demonstrate their bona fides by the manner in which they undertake the dissection of a statute.  In this regard, Justice Stras’s opinion for the Court in Nelson is interesting, not because it adopts a hyper-textualist stance, but because it takes such pains to answer to its critics for declining to do so.  Nelson deals with Minn. Stat. 609.375, which criminalizes a person’s failure “to provide care and support” to a spouse or child.  The Court holds that the phrase “care and support” is ambiguous.  An unambiguous statute needs (theoretically) only to be applied; an ambiguous statute must be construed.  Textualists fret that the process of construction gives the opening to courts to substitute their own judgments about what the law should be.  It takes cojones these days for a conservative-leaning judge to find a statute ambiguous.

Justice Stras’s 2o-odd pages in support of his ambiguity finding are actually kind of a romp. We encounter legal doublets, the canon against surplusage, the canon of in pari materia, and DeMorgan’s Theorem, which states (in case you were wondering) that the negative of a conjunctive phrase is equivalent to the disjunction of the negated terms and the negative of a disjunctive phrase is equivalent to the conjunction of the negated terms. Justice Stras writes well, and there is something weirdly gripping about his uber-geeky analysis, like Carl Sagan expounding on The Bluebook.

I found the exchange between Justices Stras and Dietzen over the role of dictionaries particularly interesting.  The practice of decision-by-dictionary has grown in recent years, fueled in part by textualists’ insistence that the existence of dictionary definitions rebuts most arguments that words are ambiguous.  Justice Dietzen criticizes the majority for not applying the most common dictionary definition in its analysis (specifically, of “care,” the most common definition of which is “to worry”).  Justice Dietzen proposes, in effect, a most-literal-meaning rule.  But were Justice Dietzen’s rule applied, then “doublet” would denote Tyrion Lannister’s fitted jacket, and not, as Justice Dietzen uses the term, two ways of saying the same thing that reinforce its meaning.  Justice Stras responds that the relevant definition of a term depends on the context in which it is used.  This would seem too obvious for words, except that in an era of increasing formalism in legal interpretation, it is not too obvious.  Today, common sense needs a champion.

For all my reservations about textualism, though, I must confess I am jealous of statutory construction for its ability to command the Court’s attention.  Would that the Court would approach its Fourth Amendment docket with anything like the brio and intellectual curiosity that Justice Stras shows in Nelson.

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The Hypothetical Warrant Rule

Now there are two published appellate decisions from which to begin a sketch of the contours of post-McNeely Minnesota.  There is just one problem.  What is it, exactly, that the courts in the two cases have held?

Brooks purports to apply a case-specific totality-of-the-circumstances analysis, à la Schneckloth.  The Court says it is focused on “the nature of the encounter, the kind of person the defendant is, and what was said and how it was said.”  Its approach, the Court tells us, is contextual, not categorical.  If that is so, then the holding of Brooks should be that Wesley Eugene Brooks — one man (and an unusually obdurate one at that) — was not coerced by the police into submitting to blood alcohol testing.  Indeed, that’s how the Court characterizes its holding:  “”[B]ased on our analysis of the totality of the circumstances, we hold that Brooks voluntarily consented to the searches at issue in this case.”

Why, then, are so many judges around the state reading Brooks as a bright line case?  In the unpublished State v. Drum, the Court of Appeals characterizes Brooks as holding “as a matter of law” that “the criminal test-penalty in the implied-consent law is not coercive.” A number of trial court judges have concluded (some reluctantly) that Brooks holds that consent is voluntary as a matter of law any time the implied consent procedures are followed.

Brooks creates a dilemma for trial court judges.  In its legal analysis, the Court ignores everything it said about Brooks-the-man in its factual narrative.  The Court fails to heed its own charge to assess “the kind of person the defendant is.”  Traditional Fourth Amendment voluntariness analysis has always taken into account a defendant’s individual characteristics — her age, intelligence, education, sophistication, and emotional and mental states — including any effect of intoxication.  The legal analysis in Brooks never reaches these subjects.  Its sole focus is “the nature of the encounter,” which it characterizes as “how the police came to suspect Brooks was driving under the influence, their request that he take the chemical tests, which included whether they read him the implied consent advisory, and whether he has the right to consult with an attorney.” These, of course, are the structural elements of every DWI investigation.  Brooks suggests that the police would need to flub one of these elements before a finding of involuntariness could be made.  But a test that fails to consider characteristics of the individual assesses nothing more than police misconduct. It does not genuinely assess voluntariness.

So what is a trial court judge to do?  Take the Court at its word and construe Brooks as just another Fourth Amendment totality-of-the-circumstances case, mindful of the United States Supreme Court’s admonition that in applying the totality-of-the-circumstances test, courts should “eschew[ ] bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry“?  Or focus on what the Brooks Court does, rather than what it says it is doing, and find voluntariness “as a matter of law” whenever the police have omitted to screw up?  A judge electing the latter course, though, must needs ignore that a finding of “voluntariness as a matter of law” is utterly oxymoronic in Fourth Amendment terms.

*     *     *

The lede in last week’s online Minnesota Lawyer seemed straight out of The Onion:

“The Minnesota Court of Appeals has affirmed the state’s implied consent law in an opinion that seems to say a law enforcement officer does not actually need to get a warrant if the officer could have gotten a warrant.”

I do not expect that the three judge panel which issued State v. Bernard intended to hold that the warrant rule is dead in Minnesota.  Presumably, the Court would say that Bernard’s holding is narrow, and must be strictly confined to the situation out of which it arose.  Still, it is a head-thumper of a case.

Bernard tests an argument that defense lawyers have been doubling down on ever since McNeely came out, namely, that it is a substantive due process violation to criminalize a person’s refusal to submit to a search for which a warrant is required.  The Court is principally concerned with distinguishing State v. Wiseman (authored, interestingly, by Justice Wright, who was then sitting on the Court of Appeals.  Bernard’s author, Judge Ross, was also on the Wiseman panel.)  Predating McNeely, Wiseman found that there was no fundamental right (the prerequisite to a substantive due process violation) to refuse to submit to blood alcohol testing because the police had the ability to search without a warrant under the automatic exigent circumstances rule.  Flash forward: McNeely requires a warrant; it rejects automatic exigency.  Aren’t Wiseman’s underpinnings undone?        

Bernard’s explanation why they are not is a tour de force of form over substance.  It is analysis that substitutes the trappings for the things.  Bernard’s parsing revolves around what it characterizes as Wiseman’s “broader proposition,” namely, that ” ‘[t]he imposition of criminal penalties for refusing to submit to a constitutionally reasonable police search . . . is a reasonable means to facilitate a permissible state objective.’ ”

Here is Bernard’s holding in diagram form.

Bernard explains Wiseman:

No fundamental right to say “no” because law enforcement –>

"constitutionally reasonable police search"

“constitutionally reasonable police search”

–>Bernard calls this Wiseman’s “hypothetical warrantless test”

Bernard then applies Wiseman’s “broader proposition” post-McNeely:

No fundamental right to say “no” because law enforcement –>

"constitutionally reasonable police search"

“constitutionally reasonable police search”

–>Bernard calls this the “hypothetical warrant-sponsored test”

You might have expected that the second diagram would look like this after McNeely:

Fundamental right to say “no” because law enforcement –>

constitutionally UNREASONABLE police search

constitutionally UNREASONABLE police search

But you would be wrong.  The analysis in Bernard is all about filling in the yellow boxes. It is necessary only that a hypothetical “constitutionally reasonable police search” be identified.  Bernard turns Wiseman from a case with a meaning into a case with a structure.  Bernard’s method is analogous to saying that a sentence is true so long as it contains a subject and a predicate.  It is content-blind.  Only as a result of such reasoning could a hypothetical “constitutionally reasonable police search” — a hypothetical warrant — be deemed comparable to an actual warrant, and adequate to satisfy the Fourth Amendment

As I said, I do not believe the Bernard Court intended to hold that the warrant rule is dead in Minnesota.  What is there, however, about Bernard’s reasoning that would prevent it from being applied where the police had probable cause to search a home?

Bernard is most persuasive when it envisions the “Bernard hearing” that would likely have resulted from a finding of a constitutional violation:

The new constitutional rule would put the myriad test-refusal factual scenarios on a spectrum . . . On one end, exigent circumstances would have clearly justified a hypothetical warrantless search at the time of the refused test request, so the refusal to test could certainly be prosecuted.  On the other end, exigent circumstances would clearly not have justified a warrantless search, so the refusal could certainly not be prosecuted.  And in the vast majority of cases in the middle, one could reasonably argue either way as to whether the temporal and logistical and practical circumstances supported a hypothetical warrantless search, so another round of collateral litigation would become necessary.

The Minnesota Supreme Court will doubtless worry over the prospect of burdensome Bernard hearings when, in all likelihood, it takes up Bernard.  Brooks does not augur well for the possibility that our state supreme court will eliminate the issue by finding the whole criminal refusal scheme unconstitutional.  Hopefully, however, our high court will reaffirm, in unmistakeable terms, the cardinal position of the warrant rule in our criminal law.

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Complete Practical Directions for the Cultivation of Scalia

It was — yup, I’m a geek — marvelous fun reading all the trial court orders that accumulated in the run-up to the Brooks decision.  Credit attorney Barry Edwards for creating the catalog of these cases; in Brooks’s aftermath, I hope that somebody is putting together an anthology of the trial court consent cases.  The most entertaining of the pre-Brooks orders was the one authored by Stearns County Judge Frederick Grunke:

Suddenly, shots rang out from the canyon rim.  “It’s the McNeely gang!”



Now the gang is aiming its sights on the well-defended United States Supreme Court.  If I were advising it, I would tell the gang to clear a space between the whiteboards and easel paper on its war room walls for this –>

because Justice Scalia is in play.

This past June, Scalia dissented, thrillingly, in Maryland v. King, the 5-4 decision that allows the police to take a person’s DNA without a warrant at the time of arrest.  Jeffrey Rosen of The New Republic called Scalia’s opinion “one of the best Fourth Amendments dissents, ever.”  The King dissent quickly became the catalyst for a swell of Scalia Reassessments.  “The arch-conservative is suddenly siding with left-wing justices in a raft of Fourth Amendment cases” read the headline in Salon.

No so suddenly, actually.  Scalia has long been the champion of a certain kind of Fourth Amendment orthodoxy.  That is not to say that last term was not noteworthy.  As Professor Kerr observed, Scalia was “on the defense side of every non-unanimous Fourth Amendment case” last term.  These included, in addition to King, Bailey v. United States, in which Scalia joined the majority in holding that Michigan v. Summers does not allow the police to detain people outside the immediate vicinity of the premises where a search warrant is being executed; Florida v. Jardines, in which he wrote the majority opinion holding that a dog sniff at the front door of a house constitutes a search; and, of course, McNeely itself.

But partnering with the more liberal justices on Fourth Amendment issues does not represent an aberration for Scalia.  Two terms ago, he wrote the majority opinion in the much-anticipated United States v. Jones, the GPS case.  He voted with the majority in Arizona v. Gant.  In 2011, Scalia authored the majority opinion in Kyllo v. United States, which remains a law student favorite with its Doctor Whovian Agema Thermovision 210, able to detect “at what hour each night the lady of the house takes her daily sauna and bath.”  Finally, Scalia wrote the majority opinion in that most intractable of cases, Arizona v. Hicks, its signature line an ode to Fourth Amendment absolutism:  “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” 

Image source: The Founding Drunkards, R. English, http://www.drunkard.com/issues/56/56-founding-drunkards.html

Image source: The Founding Drunkards, R. English, http://www.drunkard.com/issues/56/56-founding-drunkards.html

Per Kerr, “defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing.”  What kind of argument is that?  One that can claim, persuasively, to be “faithful to the text and tradition of the Fourth Amendment.”  The lodestar, of course, would be a search involving a specific practice that the Framers abhorred, but short of that, is there something in the common law that says your search requires a warrant?  In Jones and Jardines, Scalia turned to old property law precepts for his Fourth Amendment construction.  Bear in mind that Scalia is almost congenitally averse to the pragmatic Katz approach. He is a legal formalist, after all.  He’ll take reasonableness rules over reasonableness balancing any time.  But, you live by the sword, you die by it. One day, Scalia draws a bright Fourth Amendment line, and we get the sizzling King dissent.  On a different day, his bright line brings us Whren.

But enough of the legal spiel.  I promised some practical advice.

1.  Include some citations that look like this:

Dumbledore’s Case, 3 How. St. Tr. 1315, 1318 (Star Chamber 1637); Gryffindor’s Case, 168 Eng. Rep. 383 – 401 (1554); Snape’s Case, 1 Leach 199 – 277 (1611).

And if you can find any reason at all to do so, by all means cite Raleigh’s Case, 2 How. St. Tr. 1 (1603). That one slays Scalia.

2.  Read The Screwtape Letters

It may or may not turn out to be important to your quest to capture Scalia’s imagination, but the man seems very focused on the devil lately.  If you haven’t yet read the lengthy interview with Justice Scalia that appeared in New York Magazine last month, click away and come back when you’re done.  It’s a lot more entertaining than this blog post.

Can we talk about your drafting process—

[Leans in, stage-whispers.] I even believe in the Devil.

A surprisingly extended devil discussion ensues, with Justice Scalia and his interviewer appearing to disagree about the existence of that being.  It ends with Justice Scalia asking, “Have you read The Screwtape Letters?”

Yes, I have.

So, there you are. That’s a great book. It really is, just as a study of human nature.

Justice Scalia brought up the devil again at the public prayer case oral arguments last week:

Later in the argument, Alito asked the attorney for the two women challenging the practice, Douglas Laycock, to give an example of “a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists [and] Hindus….Wiccans, Baha’i.”
“And atheists,” Roberts chimed in.
“Throw in atheists, too,” Scalia insisted, later urging the lawyer to also come up with something that “devil worshipers” could accept.
Laycock said atheists were out of luck as a result of the court’s past decision upholding ceremonial prayers, but satanists might be satisfied with a prayer referencing “the almighty.”

Look, this business of cultivating isn’t strictly linear.  You must open to the Scalia gestalt. Go read The Screwtape Letters.

3. Feel the Marines

It is the most timeless of advertising phrases.

And it is clear that a similar strain swells in Scalia’s chest.

Consider what he had to say about Terry frisks in Minnesota v. Dickerson:

I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity[.]

Here’s what he had to say about DNA swabs in Maryland v. King:

But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

You need to come up with a trenchant and manly romantic line about the founding fathers.  I am trying to help.  I am channeling the Marine Corps . . . channeling . . .

That’s what your whiteboards are for.

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Why Brooks Fell Flat

Now I remember why my expectations are low in consent-to-search cases.  They end in opinions like the one we got in Brooks.  The Court performed a totality of the circumstances analysis.  Like many such analyses, it was substantively choppy and composed of parts that did not necessarily follow one from the other so that, if you shuffled the pieces and recombined them, you would wind up with an opinion that was not very different than the one with which you started.  Once the Court launched in on its lengthy factual description, it was a foregone conclusion that Mr. Brooks would be found to have consented.  The reasoning that supposedly connected facts and conclusion was obstinately narrow.  Part of what plagues Brooks is a problem that our Court did not create, one which is common to all consent-to-search cases.  Still, the Minnesota Supreme Court had the opportunity to reckon honestly with the nature of coercion in the implied-consent-to-search context but, whether from a failure of inclination or imagination, it did not do so.

The Nature of the Choice

third-degree22The Brooks majority approved the Hennepin County District Court’s coercion findings: Brooks’s “will” was not “overborne”; his “capacity for self-determination” was not “critically impaired.”  This is the language of the traditional Fifth and Fourteenth Amendment due process voluntariness test.  It was crafted to address oppressive police methods in the interrogation room at a time when physical brutality and protracted incommunicado questioning were routinely used to extort confessions.  The test had a calamitous history in the confession setting — the fact-specific voluntariness cases did not lend themselves to the kind of rule making that could help to resolve future cases, and the language of the test bordered on the metaphysical. (Justice Felix Frankfurter once likened the due process voluntariness test to “an amphibian.”  Who really cares what this means?  It is abstruse and imponderable, like the voluntariness test itself.)

The voluntariness test’s ineffectualness in curbing coerced confessions was the main impetus for Miranda, which has now largely displaced it.  Nonetheless, seven years after Miranda, the United States Supreme Court decided in Schneckloth v. Bustamonte that the  due process voluntariness test should be the measure of consent for Fourth Amendment searches as well.

“Overborne will,” with its connotations of a suspect who “breaks” or “snaps,” who experiences an event that annihilates volition, is an inadequate metaphor for the mental state that coercion induces, even in the confession context.  “Except where a person is unconscious or drugged or otherwise lacks capacity for conscious choice, all incriminating statements—even those made under brutal treatment—are `voluntary’ in the sense of representing a choice of alternatives.”  “Overborne will” is an even worse metaphor for the mental processes of a person who is pressured to consent to a search; coercion manifests differently in the interrogation room than it does at the side of a road or in a breathalyzer room.  Consider:  It is late at night; Jones is African-American; the police activate lights and sirens to effect a motor vehicle stop; they shine a flashlight into Jones’s rear windshield; the police ignore Jones when he asks why he was stopped; Jones finds himself surrounded, at gun point, by seven officers.  Oh, and we want to search your car.  These circumstances do not rob Jones of the capacity for volitional choice.  There is “a choice of alternatives”:  Jones may choose to throw cargo off a ship sinking in a storm, in the hope of sinking more slowly.   Or he may choose to simply sink.

Brooks’s principal argument was that he did not voluntarily consent because he was told that his refusal to submit to testing would be a crime.  He relied on 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, “I have a warrant.”  Bumper is widely understood to stand for the proposition that mere acquiescence to a claim of lawful authority does not constitute consent.  In Brooks, the Court construed Bumper so narrowly as to distort its significance.  Per Brooks, Bumper holds that consent is coerced only when the police ” ‘announce[ ] in effect that the occupant has no right to resist the search.’ ”  No right to resist the search is synonymous with no choice to resist the search. Brooks says, in so many words, that there is no coercion under the Fourth Amendment when a choice of alternatives presents itself.  The Court’s rationale badly misapprehends the character of a coercive search encounter.  There is always a choice.  It is the nature of the choice that bespeaks the presence of coercion.

The Nature of the Threat

The Court toppled a due process straw man when, in the course of finding that Brooks’s will was not overborne, it observed that “Brooks was neither confronted with repeated police questioning nor was he asked to consent after having spent days in custody.” Surely, no one was urging an analogy to the film noir voluntariness cases, where suspects sweat under bright lights and relays of officers interrogate through the night. Unfortunately, the Court did not consider the example of a different part of the voluntariness due process canon, the cases dealing with promises of leniency and threats of criminal prosecution to coerce confessions.  The injunction against promises and threats dates back to the common law; a case from eighteenth century England counsels that “a confession forced from the mind by the flattery of hope, or the torture of fear, comes in so questionable a shape when it is to be considered as evidence of guilt, that no credit ought to be given to it.”  Minnesota’s felony Rule 15 plea petition contains an averment at line 21b that no one has threatened the accused or his family to get him to plead guilty.

The confession cases frown on false threats of criminal prosecution  The threat is usually that some third party, the suspect’s wife or his brother-in-law, will be charged with a crime if the suspect does not confess.  By contrast, the threat of criminal prosecution that is written into Minnesota’s implied consent advisory is true.  The administration of the threat involves no police trickery or deception.  Does that mean that the due process voluntariness cases are not instructive for our purposes?

I don’t think so.  The due process cases teach us about the fearsome power of the threat of criminal prosecution.  They help us to recognize that, in Minnesota’s criminal refusal implied consent scheme, we encounter something entirely new:   a state-sanctioned threat of criminal prosecution.  As a more artless Minnesota Supreme Court pointed out in Prideaux, the case Justice Stras cites, the “obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing.”  Brooks swallows Neville, the Fifth Amendment case, whole.  The Court reduces the issues in both cases to “the existence of a consequence for refusing to take a chemical test.” But the threat of criminal prosecution is more than a “difficult choice.” It is a dividing line that derives from centuries of Anglo-American law.  It should have divided Neville and Brooks.

Which brings me to what I, personally, find most troubling about Brooks.  Brooks’s conversations with his attorneys were deemed to contraindicate coercion.  This strikes me as perverse.  When my client calls at 3:00 a.m., I, an unwitting conscript in the corps tasked with administering the state-sanctioned threat, will inform him that his situation is even more desperate than Officer Buckle has told him. Not simply is refusing the chemical test a crime; it is a worse crime than the DWI.  I shall thus assist to turn the screws on my client, and the fact that I assisted will be touted as evidence that no screws were turned.

It is a new role that I do not relish.

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Brooks’s Eve: A Hasty Part 3

Word is, the Brooks decision will be released tomorrow at 10 a.m.   Though my comments here may look completely cuckoo in just a few hours, the Court’s treatment of good faith at the Brooks arguments was sufficiently provocative that I want to say just a bit about it.

Did you happen to catch this article by the New York Times’s Adam Liptak a couple of weeks ago?  SCOTUS has a “hot bench,” i.e., one that asks a lot of questions.  The justices quoted in the story explained that their questions are intended more for each other than for the lawyers.  Justice Kagan said that oral argument is about “the justices talking to each other with some helpless person standing at the podium who you’re talking through.”  [SCOTUS apparently also keeps a “humor index.”  Justice Kagan reported that Justice Scalia has “lapped [the rest of] us 10 times.”]

The Minnesota Supreme Court is a much more polite host than SCOTUS.  When, however, the Brooks arguments reached the good faith issue, some of the exchanges between the justices reduced the normally-assured Sheridan to the role of ventriloquist’s dummy.

At issue is whether the Minnesota Supreme Court should adopt some variety of the Leon good faith exception to the exclusionary rule.  To date, our Court has refrained from applying Leon, relying on article I, § 10 of the Minnesota Constitution.  The caselaw fails to offer a rule or even a rationale in support of Leon’s rejection.  It is, rather, an accretion of not-gonnas:  don’t want to address, much less adopt, here; need not, here and here; don’t have to because good faith wouldn’t cure anyway, here.  If there was an Illustrated Guide to the Minnesota Supreme Court’s Good Faith Declination Doctrine, it would look like this →Hear-No-Evil-See-No-Evil-Speak-No-Evil-300x225

The most extensive discussion of the good faith exception by our Court appears in Justice Barry Anderson’s dissenting opinion in State v. Jackson from 2007.  Joined by then-Associate Justice Gildea, Justice Anderson made clear that he would recognize an exception, and that the exclusionary rule ought to be applied “only where its deterrence benefits outweigh its substantial social costs.”

At the Brooks arguments, Justice Stras brought up Davis v. U.S., in which SCOTUS extended good faith to the situation in which the police conduct a search in compliance with precedent that is later overruled.  Justice Stras proposed that the Minnesota Supreme Court could adopt the Davis exception without embracing all of Leon, but for one problem:  Sheridan had omitted to argue article I, § 10 in his brief.  Absent the article I, § 10 argument, Justice Stras asked, isn’t this “purely a Fourth Amendment case — so there’s at least a colorable argument that we are bound by Leon and Davis in this context and we may in fact adopt a different rule when someone alleges an article I, § 10 claim?”

Justice Lillehaug interjected: Counsel, I would not want you to too hastily give up your state constitutional argument.  We took a look at the motions that were made in the trial court, and in at least two of the cases, it looks like Mr. Brooks’s then-attorney did make an argument under both the Fourth Amendment and its Minnesota counterpart.

Chief Justice Gildea’s question-in-reply:  In your arguments to this Court, you did not articulate that your client’s rights under article I, § 10 are greater than your client’s rights under the Fourth Amendment.

Sheridan:  That is not in the brief.  You are correct.

Then it was Assistant Scott County Attorney Zettler’s turn at the podium.

Justice Lillehaug:  Regarding article I, § 10, do you understand the state constitutional right to be before this Court?

Zettler:  In my view, it was not raised in the briefs.

Justice Lillehaug:  Do you know if Mr. Brooks’s motion below was based on both the federal and state constitutions?

Chief Justice Gildea:  I thought the argument below in the trial court — article I, § 10 was cited but there wasn’t any argument based on article I, § 10 — even below it was based on the Fourth Amendment.

Zettler:  Yes.

Chief Justice Gildea:  Before Mr. Sheridan standing here today, no court has been asked to extend broader protection than Mr. Brooks would be entitled to under the Fourth Amendment.

Zettler:  That’s right.

No case that has come before the Court seeking recognition for a good faith exception has been as compelling as this one.  Justice Wright is not participating in Brooks, so the composition of the Court is six.  Given the justices’ comments at the oral argument and their decisions in past cases, I would be surprised if more than one of the six continued to support a policy of abstention vis-a-vis the good faith exception.  If Mr. Brooks’s article I, § 10 claim has been preserved, the Court could adopt a limited and well-defined version of a good faith rule, a Davis rule for reliance on overturned precedent.  But from Chief Justice Gildea’s repeated challenges to the sufficiency of the preservation, I think we may infer that there is support on the Court for the importation of SCOTUS’s entire good faith canon, which is increasingly hostile to the exclusionary rule.  As it is modernly formulated, the exclusionary rule is less a rule than a utilitarian cost-benefit equation.  Per Herring v. U.S.:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.

It is hard to overestimate how dramatic the effect on state court criminal practice would be were this case-by-case, cost-benefit suppression formula adopted as the law in Minnesota.

You would think that if the Court reaches good faith in its opinion tomorrow, Brooks must needs have first won on SIA and consent.  But you might be wrong.  “I’m buoyed,” Sheridan declared, when the Court asked him about good faith during his rebuttal, “because to arrive at good faith would mean that I prevailed on all the other issues.”

Not so fast.  “Well, counsel,” said Chief Justice Gildea, “it could be a short circuit way of not having to answer any of those other questions.  We could, for example, assume without deciding here but say the evidence shouldn’t be suppressed because of Davis.  So, you know, I don’t want to pop your balloon but — ”

Sheridan:  “It’s too late . . . “

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ORAL ARGUMENT: STATE V. BROOKS, Sept. 11, 2012, Part 2

Correction:  It will be Brooks oral argument, parts 1, 2 and 3.  Today, the consent issues

The Tale of the Many-Horned Dilemma

euphemistical creature

euphemistical creature

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.

horns-of-a-dilemmaIn 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.

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ORAL ARGUMENT: STATE V. BROOKS, Sept. 11, 2013, Part 1

The outcome(s) of the consolidated Brooks cases will doubtless have huge practical consequences for DWI practice in Minnesota, but that is not even what is most interesting about the cases. Forget the mechanistic and uninspiring field of law that used to be called DWI — now we have the United States Supreme Court’s decision in McNeely. In McNeely’s aftermath, the Minnesota Supreme Court must decide Brooks, which showcases — and gives the Minnesota Supreme Court an opportunity to weigh in on — the most significant Fourth Amendment debate of the last several decades.

Part 1 of the Brooks oral argument post will address the special needs and search incident to arrest issues.  Part 2 will address consent and the Court’s potential adoption of some sort of good faith exception to the exclusionary rule.

Categorical Warrant Rule vs. Reasonableness Balancing

which wayThe text of the Fourth Amendment does not mandate that searches be preceded by warrants.  The amendment requires only that searches not be “unreasonable.” But the United States Supreme Court has held repeatedly that the warrant requirement is an indispensable component of reasonableness. The resulting rule has come to be known as the categorical warrant rule. You know that SCOTUS is about to invoke the categorical warrant rule when it begins its analysis by reciting that the warrant requirement is subject

to a few specifically established and well-delineated exceptions.

On other occasions, however, SCOTUS has disregarded the categorical rule in favor of a “reasonableness alone” balancing test.  Justice Scalia has tweaked the Court for “lurch[ing] back and forth” between the two approaches.  SCOTUS is teeing up reasonableness when it opens with the maxim that 

the touchstone of the Fourth Amendment is reasonableness.

McNeely is a categorical warrant case.  The State of Missouri was asking for a categorical non-warrant rule for blood testing in DWI cases. SCOTUS held that the metabolization of alcohol in a driver’s bloodstream does not, of itself, create a sufficient exigency to justify a warrantless blood draw. 

“In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Minnesota’s Justice Stras read this passage out loud a couple of times during the Brooks arguments, observing that “it sounds pretty categorical.” Though McNeely calls for case by case adjudication and totality of the circumstances assessments, it is a categorical warrant case, not a reasonableness balancing one.  The rule is the warrant.  Yet most of the arguments against applying McNeely beyond its facts involve reasonableness methodology.   And the oral arguments in Brooks featured a contest between categorical rule and reasonableness balancing proponents.

Off the Hook:  Special Needs & Reasonableness Balancing

Mr. Brooks’s counsel, Jeffrey Sheridan, emphasized that the Court’s starting point should be the purpose of the search, rather than the nature of the intrusion.  The former refers to categorical warrant rule methodology, the latter to reasonableness balancing.  Because the purposes of the searches in the consolidated Brooks cases was evidence gathering, argued Sheridan, the Court could rule out the “special needs” rationale as a potential justification for the searches. school-drug-testing The free-wheeling special needs category green-lights warrantless and suspicionless searches in non-criminal contexts including administrative investigationsemployment and school drug testing, border checkpoints, and custodial post-conviction DNA collection

While there did not seem to be much interest from the Court in trying to rationalize DWI blood alcohol testing as a special needs search, Chief Justice Gildea did linger over the idea, asking whether the special needs analysis would be different if test refusal had not been made a criminal offense in Minnesota.  The discussion shifted elsewhere, and the point did not get followed up.  Presumably, however, removing the criminal refusal sanction would bolster the claim that Minnesota has a dual- or mixed-purpose alcohol testing scheme, with a purely administrative implied consent side.  That might open the door to special needs treatment.

Assistant Scott County Todd Zettler did not, in any event, claim to be relying on the special needs rationale.   He explained, rather, that his theory was “inherent reasonableness” under the United States Supreme Court’s Samson v. California.  Samson upheld a statute permitting suspicionless searches of California parolees.  Samson is notable for permitting a more improvisational form of reasonableness balancing than even the special needs cases.  (The Samson dissenters charged that “the Court for the first time upholds an entirely suspicionless search unsupported by any special need.”)  Chief Justice Gildea asked Zettler whether SCOTUS has ever applied pure reasonableness balancing in a situation (like Brooks’s) where there was probable cause for searches intended to yield evidence in a criminal prosecution.  Zettler demurred a bit, but the answer is no.  I cannot imagine that the Minnesota Supreme Court would do so, either.      

Is There Room for Reasonableness Balancing in SIA Analysis?

The parties seemed to talk particularly at cross purposes when it came to search incident to arrest.   Sheridan’s argument was classic categorical rule.  Gant‘s prong one holding, said Sheridan — namely, that police may search a vehicle incident to arrest only when there is a genuine possibility that, at the time of the search, the arrestee can get at the passenger compartment to destroy evidence — underscores that the SIA exception is concerned with an arrestee’s ability to deliberately destroy evidence. A driver does not deliberately destroy evidence when his body metabolizes alcohol.  The causal agent is simply the passage of time, which McNeely treated as an exigent circumstances factor, not a search incident to arrest factor.  

Zettler relied on a patchwork of cases from around the country that hold that certain inspection-of-the-body procedures are so petty that they are considered reasonable when made incident to custodial arrest.Killian-300x236  Zettler urged the Court to adopt this form of reasonableness balancing, and to find that breath and urine testing are relatively inconsequential intrusions that fail to move the unreasonableness needle. Justice Dietzen appeared to like Zettler’s argument, comparing breath and urine to fingerprints.  But Justice Stras expressed misgivings.  Doesn’t Skinner treat urine more like blood than breath?  (Skinner describes peeing as “an excretory function traditionally shielded by great privacy.”)  Urine is a “negligible” intrusion, replied Zettner, citing SCOTUS’s Vernonia.  That is one of the problems with reasonableness analysis.  It puffs up intrusions when searches are struck down, and deprecates them when searches are upheld.     And characterizations such as “shielded by great privacy” and “negligible” are not just subjective and inconsistent.  They are doctrinally silly.  

As is illustrated by the following exchange, a graver problem may be what happens to traditional Fourth Amendment protections if nature-of-the-intrusion analysis becomes the dominant SIA paradigm:  

Justice Page:  Would your SIA theory would permit the police to swab a suspect’s cheek for DNA without a warrant in a criminal sexual conduct investigation?

Zettler:  A cheek swab would involve a bodily intrusion, which would differentiate it from breath and urine testing.

Justice Page:  Why would it be different from urine?

Zettler: Because there’s no intrusion into the body with urine testing.

Justice Page:  But there’s an intrusion into privacy.

Justice Stras:  Would your theory permit the police to do a rape kit on a suspected perpetrator?  You have the same evidence preservation issues.  Presumably, he could go into the bathroom and wipe off the evidence.

Zettler:  You would have to balance the privacy interest . . . and there would be no intrusion into the human body . . . so I believe that it probably would.

That, I expect, was the proverbial bridge too far. 


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