Just this week, Judge Alan F. Pendleton of Anoka County suppressed a breath test in a DWI case pursuant to the landmark case of Missouri v. McNeely, which we can now confidently assign the term “landmark” given its affect nationwide on DWI law. This particular ruling is a sea change in Minnesota because of the influence of this Judge. Judge Pendleton publishes bi-weekly judicial training updates and is particularly knowledgeable and well regarded for his fourth amendment jurisprudence. He has also added compliance with McNeely to his training update. The opinion is also far more detailed and comprehensive with regard to his historical analysis search and seizure than prior positive McNeely opinions in Minnesota.
The timing of this opinion could not be more critical. It follows on the heels of several test suppressions, including those in Rice County and Steele County, after an initial phase of districts erroneously upholding chemical testing without a warrant. It also comes right before the July 4th Holiday, and two weekends in a row of “increased DWI enforcement.” If County Attorneys offices were serious about protecting public safety, to the extent that means prosecuting drunk driving successfully, they would have begun implementing a system of telephonic warrants for chemical testing in DWI cases months ago. Instead, prosecutors remain obstinant, betting on the Court of Appeals or the Supreme Court of Minnesota issuing some opinion to get around McNeely. This lack of action on the part of Counties demonstrates a mentality of enitlement. The Counties believe they are basically entitled to a steady stream of DWI convictions and revenue, and similarly the Department of Public Safety and even some private companies have financial interests at stake in the fees and expenses surrounding the process by which a revoked driver comes to get their driving privileges back. The Judiciary in contrast has slowed it’s knee jerk reaction to try to distinguish McNeely as some radical opinion that is not applicable to Minnesota, and is instead taking action to RESTORE the Fourth Amendment, This is critical since this right has been dismantled over the past four decades by caselaw pertaining to traffic stops, vehicle searches, searches of the person, and DWI.
While McNeely is a landmark case, it is not truly a radical opinion, and is not unprecedented. In fact, before the advent of chemical testing in DWI, Fourth Amendment protections for searching a person’s body were fairly robust. Indeed, the current circumstance in which a person’s body has less protection than their home or office, seems counterintuitive, and stands in stark contrast to the state of the law just 50 or 60 years ago. A combination of several factors led to the rapid decline of this protection, with the automobile itself being a culprit of sorts. As car ownership increased, people began to travel greater distances and with more frequency, including daily commuting to and from work, and from the after bar. Inevitably, increased traffic accidents and fatalities followed leading to greater public safety concerns to which municipal and legislative bodies felt compelled to respond. This led to an array of laws and regulations relating both to the physical operation of a motor vehicle as well as licensing. This in turn dramatically expanded the entire criminal code, leading eventually to countless traffic stops and crowded court calendars. Over the course of a few decades, a series of deplorable rulings eroded many Fourth Amendment protections for motorists. This led ultimately to the current circumstance where an officer can pull a motorist over for any number of minor traffic infractions from an out tail light to momentary lane violations, and then arrest a person for “probable cause” of DWI based on observations that are nearly impossible to challenge in court, like bloodshot eyes, odor of alcohol, nystagmus, etc. As if this wasn’t bad enough, officers can force a person to submit to a chemical search of their body on penalty of license revocation or incarceration with no warrant or even any Fourth Amendment analysis whatsoever, because suspicion of DWI itself has essentially become an exception to the Fourth Amendment.
As Judge Pendleton points out, McNeely actually conforms to over a Century of precedent prior to the gross misinterpretation of Schmerber v. California, manifested in Minnesota through State v. Netland and State v. Shriner. “The Court clearly stated, and repeated twice, that the holding in Schmerber was to be confined to its facts and a single-factor, “bright-line” exigent circumstances rule should not be extrapolated therefrom.” Pendleton, Hon. Alan F., State of Minnesota v. John Roy Drum, Anoka Co. File No. 2-CR-12-08640 (2013). It important to begin to think of McNeely as the beginning of a return to applying the Fourth Amendment to DWI, and in particular, to the search of a person. Unlike the terms “consent” or “exigency” or “reasonable suspicion”, the word “person” actually appears in the Fourth Amendment. The search of the human person had at one time been protected as sacrosanct, just as the search of one’s home, and the papers and effects within that home or even at one’s office. In most circumstances it still is, and like a search of one’s home, or mail, or tapping their phone line, the law has always required the State to obtain a warrant, and considered warrantless searches to be “per se” unreasonable. There were always exceptions, such as consent to the search and exigent circumstances. However in Minnesota, we have literally taken DWI and made the offense itself an exception to a warrant requirement.
Emboldened by misinterpretation of exceptions to the warrant requirement, the Minnesota Legislature was given wide latitude and power to absolutely destroy the rights of its own citizens. In an effort to “crack down” on DWI, and under pressure from lobbying by Mothers against Drunk Driving, municipal interests, and law enforcement, the legislature has developed the ultimate insult to Fourth Amendment liberty: “Implied Consent.” The very term itself is an exercise in absurdity. The advisory in no way attempts to actually secure voluntary consent from the suspected drunk driver. As Judge Karen Duncan in Steele County pointed out in her recent opinion, “Minnesota courts have already held that the implied consent advisory laws and form do not seek to gain the “consent” of the driver to submit to chemical testing and that the term “consent” is a misnomer.”Duncan, Hon. Karen R., Interiano v. Commissioner of Public Safety, Steele Co. Court File No. 74-CR-13-501, citing State v. Wiseman, 816 N.W.2d 689, 693-694 (Minn. Ct. App. 2012); There is no other criminal offense, not even murder, where by virtue of the very crime itself one is suspected of, one “consents” to a search in advance by implication. There is no other charge wherein a warrantless search of the person can be justified by the “exigency” of a single factor, present in EVERY case, with no further analysis. The single factor exigency itself is the presence of alcohol while driving. It’s the very offense in question that is the exigency. There is no such thing as a DWI investigation that does NOT have a warrant exception under this theory, thus making the exception the very rule that governs the entire offense. Most importantly, there is no other offense, not even murder, under which not consenting to the search is itself a crime.
There’s been a lot of ribbing and humor between defense attorneys, prosecutors, and judges over the McNeely issue. It’s been cute up until now, but now is the time for all attorneys and judges to begin thinking like lawyers again, and really focus on the oaths they took to uphold the Constitution. It’s time to put aside the anecdotes perceptions we have memorized and developed with regard to this or that DWI defendant, put aside our jaded point of view, and recognize the nobility of the Fourth Amendment as it perpetually applies to us all. This is not a technicality. It’s a massive wound in Fourth Amendment jurisprudence that needs to be healed, and it is our job as members of the criminal justice system to administer the healing balm of diligence and intellectual honesty, both by respecting the Bill of Rights, and using common sense and applying the precedent of the United States Supreme Court squarely to our State. It is an affront to justice, and beneath the integrity of our profession, for a Judge or Prosecutor to say McNeely doesn’t apply to Minnesota or pretend it doesn’t change the law at all, especially after the United States Supreme Court has vacated and remanded two urine cases in our state. We have the opportunity to correct a grave error, and a failure to do so could serve to expand the decay of the Fourth Amendment to other offenses where we begin to make the offense itself the exception to the warrant requirement. Reversing this error now will preserve our rights in a consistent manner for the foreseeable future.