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  In the unpublished State v. Drum, the Court of Appeals characterizes Brooks as holding “as a matter of law” that “the criminal test-penalty in the implied-consent law is not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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7 Responses to The Hypothetical Warrant Rule

  1. Of course, there is never a need for a scary “Bernard Hearing” in the first place because the SCOTUS has already concluded that you can’t criminalize the act of refusing to consent to a warrantless search. It’s a red herring that would never materialize if the Court simply followed precedent.

  2. cweissenborn says:

    No need for Bernard hearing if IC facially unconstitutional? But in the meantime, haven’t courts who’ve been finding individual due process violations doing exactly that, evaluating whether there would have been multi-factor exigent circumstances to permit the search?

  3. Your analysis is so much more well-written and well-stated than mine. 🙂

  4. cweissenborn says:

    But much less entertaining.

  5. Fred. B. says:

    I see this difficult opinion as something like a “inevitable warrant” rule.

    • cweissenborn says:

      I am hearing that phrase. An analogy to the inevitable discovery rule? I’m guessing the court of appeals intended something more confined but it’s certainly arguable that that’s how it reads. An “inevitable warrant rule” couldn’t possibly withstand constitutional scrutiny.

  6. Britt says:

    Great analysis Carol. Spot on.

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