David Scott Wilsey v. Commissioner of Public Safety ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1995
David Scott Wilsey, petitioner,
Respondent,
vs.
Commissioner of Public Safety,
Appellant.
Filed July 14, 2014
Reversed
Peterson, Judge
St. Louis County District Court
File No. 69DU-CV-13-1144
Peter J. Martin, Martin Law Firm, Minneapolis, Minnesota (for respondent)
Lori Swanson, Attorney General, Joseph M. Simmer, Assistant Attorney General, St.
Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Connolly, Judge; and
Willis, Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
PETERSON, Judge
Appellant Commissioner of Public Safety challenges a district court order
rescinding the revocation of respondent’s driver’s license under the implied-consent
statute. We reverse.
FACTS
Respondent David Scott Wilsey was stopped in Duluth by Trooper Mike LeDoux
just before 11:00 p.m. on February 27, 2013, for having a taillight out. LeDoux detected
a strong odor of alcohol and observed that respondent had bloodshot and glossy eyes.
LeDoux asked respondent if he had consumed alcohol, and respondent said that he drank
two beers that evening. After respondent failed three field sobriety tests and a
preliminary breath test, LeDoux arrested him for driving while under the influence of
alcohol.
Respondent was read the standard implied-consent advisory, which, in part,
informed him that “[r]efusal to take a test is a crime.” Respondent said that he
understood the advisory, he did not want to consult with an attorney, and he would take a
blood test. The test showed that respondent’s alcohol concentration was .09.
Appellant revoked respondent’s driver’s license effective April 8, 2013.
Respondent petitioned for rescission of the revocation, arguing that the blood test was an
involuntary search and, under Missouri v. McNeely, 133 S. Ct. 1552 (2013) (plurality
opinion), which was decided on April 17, 2013, exigent circumstances did not exist to
excuse a failure to obtain a warrant to permit the search. Appellant did not dispute that
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there were no exigent circumstances that allowed a warrantless search and, instead,
argued that respondent consented to the search.
The district court determined that while it was required to “consider the totality of
circumstances in making a factual conclusion on whether [respondent’s] consent was
coerced or voluntary, one particular factor sticks out—that [respondent] was informed
that if he did not submit to the testing, he would be committing a crime.” The district
court further determined:
The options for [respondent] here were “consent” to a blood
test or be charged with an additional crime on top of the
crime the State already had probable cause to arrest you for.
The court sees no world where such an option provides an
actual choice.
The State has a burden of showing by a preponderance
of evidence that consent was freely and voluntarily given.
The State has failed to meet that burden. The facts and
circumstances present indicate that [respondent’s] “consent”
was actually acquiescence to a show of authority rather than
true consent. Therefore, the court finds that [respondent] did
not provide voluntary consent, and results of the test shall be
suppressed.
The district court then rescinded the license revocation because it was based on the
blood-test result.
Appellant filed a notice of appeal on October 21, 2013, and on October 23, 2013,
the supreme court released its opinion in State v. Brooks, 838 N.W.2d 563 (Minn. 2013),
cert. denied, 134 S. Ct. 1799 (2014).
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DECISION
The United States and Minnesota Constitutions guarantee persons the right to be
free from “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art.
I, § 10. “This guarantee establishes the right to privacy ‘as one of the unique values of
our civilization,’ and ‘with few exceptions, stays the hands of the police unless they have
a search warrant.’” Brooks, 838 N.W.2d at 568 (quoting McDonald v. United States, 335
U.S. 451, 453, 69 S. Ct. 191, 192 (1948)).
In Brooks, a driver who agreed to take a blood or urine test on three separate
occasions after being told that refusing to take a test is a crime moved to suppress the test
results because the police took the blood and urine samples without a warrant. Id. at 565-
66. The supreme court explained:
Taking blood and urine samples from someone constitutes a
“search” under the Fourth Amendment. But police do not
need a warrant if the subject of the search consents.
For a search to fall under the consent exception, the
State must show by a preponderance of the evidence that the
defendant freely and voluntarily consented. Whether consent
is voluntary is determined by examining the “totality of the
circumstances.” Consent to search may be implied by action,
rather than words. And consent can be voluntary even if the
circumstances of the encounter are uncomfortable for the
person being questioned.
Id. at 568-69 (citations omitted). Then, citing Bumper v. North Carolina, 391 U.S. 543,
548-49, 88 S. Ct. 1788, 1792 (1968), the supreme court explained that “[a]n individual
does not consent, however, simply by acquiescing to a claim of lawful authority.”
Brooks, 838 N.W.2d at 569.
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Like respondent, Brooks argued
that he did not truly have a choice of whether to submit to
[blood and urine] tests because police told him that if he did
not do so, he would be committing a crime, and . . . the fact
that police advised him that it is a crime to refuse the
chemical tests renders any consent illegally coerced.
Id. at 570.
The supreme court rejected this argument and explained:
[A] driver’s decision to agree to take a test is not coerced
simply because Minnesota has attached the penalty of making
it a crime to refuse the test.
. . . In Bumper, police sought to justify their search of a
house based on the owner’s consent, contending that she
consented to the search by saying “[G]o ahead” after police
told her they had a warrant. The Court held that this sort of
submission to authority did not constitute consent. The Court
concluded that when a police officer claims authority to
search a house under a warrant, “he announces in effect that
the occupant has no right to resist the search. The situation is
instinct with coercion — albeit colorably lawful coercion.
Where there is coercion there cannot be consent.”
Unlike Bumper, the Minnesota Legislature has given
those who drive on Minnesota roads a right to refuse the
chemical test. If a driver refuses the test, the police are
required to honor that refusal and not perform the test.
Although refusing the test comes with criminal penalties in
Minnesota, the Supreme Court has made clear that while the
choice to submit or refuse to take a chemical test “will not be
an easy or pleasant one for a suspect to make,” the criminal
process “often requires suspects and defendants to make
difficult choices.” Bumper therefore does not support
Brooks’s argument that the State unlawfully coerced his
consent.
Id. at 571 (alteration in original) (footnotes omitted) (citations omitted).
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Unlike the homeowner in Bumper, who had no right to resist the search of her
house, respondent had a right to refuse to submit to a blood test, and as in Brooks, his
consent was not just acquiescence to a show of authority. Therefore, in light of Brooks,
the district court erred in determining that respondent did not provide voluntary consent
to testing because he “was informed that if he did not submit to the testing, he would be
committing a crime,” and we reverse the order rescinding respondent’s license
revocation.
Reversed.
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