State v. Brooks

STRAS, Justice

(concurring).

The court is mistaken when it concludes that Brooks voluntarily consented at the scene to any of the three searches conducted in this case. In each of the three encounters, a police officer read Minnesota’s implied-consent advisory, which informed Brooks that refusal to consent to a blood-alcohol test is a crime. Perhaps contemplating this moment, we observed in Prideaux v. State that “[t]he 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, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense.” 310 Minn. 405, 409-10, 247 N.W.2d 385, 388 (1976) (emphasis added). Since Prideaux, Minnesota’s implied-consent law has become even more coercive because it now imposes criminal liability for test refusal.1 It is *574hard to imagine how Brooks’s consent could have been voluntary when he was advised that refusal to consent to a search is a crime. See Schneckloth v. Bustamante, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (stating that consent must be voluntary, not “the product of duress or coercion, express or implied ” (emphasis added)); Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (“Where there is coercion there cannot be consent.”).

I do not mean to suggest that a driver can never voluntarily consent to a blood, breath, or urine test during a traffic stop. Nor do I express any opinion about what effect, if any, we might give to a driver’s decision to drive on Minnesota roads in light of the implied-consent law.2 But in this case, I cannot join the court’s opinion because the particular theory of consent advanced by the court cannot withstand constitutional scrutiny. I therefore concur only in the judgment of the court.

I would affirm the decision to admit the blood-alcohol evidence from each of the searches in this case based on the rule from Davis v. United States, — U.S. -, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). Under Davis, “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Id. at -, 131 S.Ct. at 2422. Davis builds upon the good-faith exception to the exclusionary rule first articulated in United States v. Leon, which held that the Fourth Amendment does not require suppression of “evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate,” even if the warrant is later found to be defective. 468 U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The exclusionary rule, which requires courts to suppress unlawfully seized evidence, is a prudential rule developed by the Supreme Court to compel respect for the Fourth Amendment and to deter Fourth Amendment violations. Davis, - U.S. at -, 131 S.Ct. at 2426. Although both the Fourth Amendment and Article I, Section 10 of the Minnesota Constitution *575protect the right of citizens to be free of unreasonable searches and seizures, neither mandates that courts suppress evidence obtained in violation of either provision. U.S. Const. amend.IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”); Minn. Const. art.I, § 10 (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.”).

The prudential nature of the exclusionary rule has led to the development of a prudential exception to it: the good-faith exception. The good-faith exception recognizes that excluding evidence imposes significant costs on society and the criminal-justice system, and that “[f]or exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Davis, — U.S. at -, 131 S.Ct. at 2427. When law-enforcement conduct is highly culpable, the deterrence benefits of exclusion are high; conversely, when law-enforcement conduct is less culpable, the deterrence benefits of exclusion are lower. Id. (“The basic insight of the Leon line of cases is that the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue.” (citation omitted) (internal quotation marks and brackets omitted)).

Although this court has yet to adopt the good-faith exception, State v. Jackson, 742 N.W.2d 163, 180 n. 10 (Minn.2007), this is an appropriate case for us to do so.3 Nothing in the Minnesota Constitution or in our case law undermines Davis’s reasoning, and the deterrence benefits of excluding the test results from the blood and urine evidence in this case are essentially zero.

Indeed, there is no dispute that the police officers fulfilled the requirements of Minn.Stat. § 169A.51, subd.(2012), when they read the implied-consent advisory to Brooks. The officers also fully complied with Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 837 (Minn.1991), when they gave Brooks an opportunity to consult with an attorney before providing a *576blood or urine sample. And most importantly, when the officers collected blood and urine samples from Brooks, they did so in accordance with this court’s decision in State v. Netland, which approved of the warrantless collection of blood-alcohol evidence based on a single-factor exigency derived from the evanescent nature of alcohol in the bloodstream. 762 N.W.2d 202, 214 (Minn.2009) (“[U]nder the exigency exception, no warrant is necessary to secure a blood-alcohol test where there is probable cause to suspect a crime in which chemical impairment is an element of the offense.”), abrogated in part by Missouri v. McNeely, — U.S. -, 138 S.Ct. 1552, 185 L.Ed.2d 696 (2013); see also State v. Shriner, 751 N.W.2d 538, 549-50 (Minn.2008) (“The rapid, natural dissipation of alcohol in the blood creates single-factor exigent circumstances that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular homicide or operation.”), abrogated by McNeely, — U.S. -, 133 S.Ct. 1552. In short, the police officers in this case followed the law, including binding precedent from this court, to the letter.

Of course, with the benefit of hindsight, we now know that Netland was wrongly decided. But that was our mistake, not a mistake by law-enforcement officials. Law-enforcement officials cannot foretell the future — nor would we want them to try. Rather, as in Davis, “[t]he police acted in strict compliance with binding precedent, and their behavior was not wrongful.” — U.S. at -, 131 S.Ct. at 2428-29. Excluding the blood-alcohol results in this case would not deter future unlawful searches — the “sole purpose” of the exclusionary rule. Id. at -, 131 S.Ct. at 2438. Instead, applying the exclusionary rule in this case would allow Brooks to escape criminal liability not because he is innocent or the police acted culpably, but rather because this court failed to foresee McNeely when it decided Netland. Neither the Fourth Amendment nor Article I, Section, dictates such a result.

. Prideaux involved an earlier version of the implied-consent law, under which test refusal resulted only in license revocation, not criminal liability. 310 Minn. at 409-10, 247 N.W.2d at 388; Minn.Stat. § .123, subd.(1974), repealed by Act of May, 2000, ch., art., § , 2000 Minn. Laws 1484, 1537. I have my doubts about whether license revocation, standing alone, is so coercive that a person threatened with it could not voluntarily consent to a blood, breath, or urine test. But given that we described the lesser threat of license revocation in Prideaux as intended "to coerce” a driver into " 'consenting' to chemical testing,” 310 Minn. at 409, 247 N.W.2d at 388, surely the greater threat of criminal liability coercively extracts a driver's consent to chemical testing. See State v. Dezso, 512 N.W.2d *574877, 880 (Minn.1994) ("Consent must be received, not extracted.”).

Contrary to the court’s assertion, neither South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), nor McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848 (Minn.1991), undermines Prideaux. Nor does either case support the court’s conclusion that Brooks voluntarily consented to any of the three searches. Ne-ville held that "no impermissible coercion is involved when [a] suspect refuses ” to take a blood-alcohol test, even when the legal consequences for his refusal included the loss of his driver’s license and use of the test refusal against him in a criminal trial. Neville, 459 U.S. at 562, 103 S.Ct. at 921-22 (emphasis added). The issue in Neville — whether a suspect’s refusal to submit to a test was coerced — is the exact opposite of the issue presented in this case and in Prideaux— whether a suspect’s submission to a test was coerced. Similarly, McDonnell (following Re-ville ) held that ”[t]he fact that certain individuals may face criminal charges for refusing to undergo testing in no way compels those individuals to refuse." 473 N.W.2d at 855-56 (emphasis added); see also id. at 854 (citing Prideaux with approval). It is a mystery how the court starts from the premise that the penalties for test refusal in the implied-consent statute do not compel test refusal — the holdings of Neville and McDonnell — to reach the conclusion that the penalties for test refusal in the implied-consent statute do not compel submission to testing — the very purpose of the criminal penalties.

. The plurality opinion in Missouri v. McNeely described implied-consent laws as among a "broad range of legal tools” that states can use "to enforce their drunk-driving laws and to secure [blood-alcohol-concentration] evidence without undertaking warrantless non-consensual blood draws.” — U.S. -, -, 133 S.Ct. 1552, 1566, 185 L.Ed.2d 696 (2013) (plurality opinion).

. Brooks argues that Minn.Stat. § 626.21 (2012) bars this court from adopting the good-faith exception to the exclusionary rule. Section 626.21 sets forth seven grounds on which a person "aggrieved by an unlawful search and seizure" may move a court "for the return of the property and to suppress the use, as evidence, of anything so obtained.” According to Brooks, section 626.21 requires the exclusion of unlawfully seized evidence because the statute also provides, in relevant part, as follows: "If the motion is granted the property shall be restored unless otherwise subject to lawful detention, and it shall not be admissible at any hearing or trial."

Brooks is incorrect for at least two reasons. First, the provision on which Brooks relies relates only to seized “property,” and it is undisputed that Brooks is not seeking the return or suppression of his property (i.e., blood and urine samples), but rather the suppression of the result of tests conducted on that property. Second, the disputed provision sets forth a remedy "[i]f [a] motion [to suppress] is granted,” but does not provide any substantive guidelines for when a court must grant such a motion. Stated differently, even if a defendant establishes one of the seven grounds on which a motion under section 626.21 may be brought, nothing in the statute forecloses a court from denying the defendant's suppression motion on the basis of a good-faith exception to the exclusionary rule (or on some other basis, such as a procedural defect in the motion itself).