State v. Banks ( 2010 )

BROWN, C.J.

¶ 49. (dissenting). The majority opinion faults the prosecutor's entreaty to the jurors that asked them to penalize the defendant, Tarence A. Banks, for exercising his Fourth Amendment right to be free from a warrantless search. I agree with the majority that a defendant's invocation of his or her rights under the Fourth Amendment may not be used by the State to demonstrate consciousness of guilt. But I believe the real question in this case is whether an arrestee has a Fourth Amendment right to object to the collection of a DNA sample. Unless there is an established Fourth Amendment right, there is no corresponding constitutional right to refuse to submit to a DNA swab without a warrant and, therefore, it is no violation by the State to offer the refusal as consciousness of guilt.

¶ 50. I am satisfied that the law is in flux as to whether law enforcement may obtain a DNA sample of an arrestee without a warrant. Consequently, I would apply the ruling of our supreme court in State v. Maloney, 2005 WI 74, ¶ 23, 281 Wis. 2d 595, 698 N.W.2d 583, where the court stated: "the rule that an attorney is not liable for an error of judgment on an unsettled proposition of law is universally recognized." And I would also apply State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), where we said that "[cjounsel is not required to object and argue a point of law that is unsettled." My view is that Bank's counsel was not ineffective for failing to object to the consciousness of guilt argument made by the prosecutor because it is not yet known whether such an argument runs afoul of the law. I respectfully dissent.

¶ 51. To begin, I want to make clear that I agree with the majority and disagree with the State regarding one important point. The State points out that there is a substantial body of case law holding that it is improper for the government to comment on an accused's exercise of his or her Fourth Amendment right to refuse to consent to a search. The State cites a litany of cases in support. But the State then takes a ninety-degree turn and posits that because Wisconsin has not yet adopted this body of law for its own, the question is still unsettled in this state. I contend that the State's argument shows a rather myopic understanding of the Maloney and McMahon holdings. The question is not whether Wisconsin's appellate courts have adopted universal holdings documented in other foreign jurisdictions, but whether the law of those jurisdictions is "universally recognized" across this great land. And I am convinced that a prosecutor may not use a defendant's refusal to consent to a search protected by the Fourth Amendment as evidence of guilt. See United States v. Moreno, 233 F.3d 937, 941 (7th Cir. 2000). The reason for this universal rule is aptly explained in one terse statement by the Alaska Supreme Court in Padgett v. State, 590 P.2d 432, 434 (Alaska 1979), that the right to refuse to consent to a warrantless search would be "effectively destroyed if, when exercised, it could be used as evidence of guilt."

¶ 52. But as I see the issue here, the question is not whether Banks had a right to refuse to consent to a search protected by the Fourth Amendment, but whether the search is protected by the Fourth Amendment at all. If there is no Fourth Amendment protection, there is no right to refuse.

¶ 53. Certainly, there are a few areas of the law where our courts have universally held that a search is not protected by the Fourth Amendment. For example, our implied consent law relating to drunk driving is one such instance. The government's right to compel a blood sample after or contemporaneous with a lawful arrest means that an arrestee has no Fourth Amendment right to refuse such a test. See Schmerber v. California, 384 U.S. 757, 767-72 (1966).

¶ 54. The question is whether this is another kind of search that is unprotected by the Fourth Amendment. And as to this question, my research reveals that "the jury is still out." In fact, it is my opinion that "the jury" has hardly begun to deliberate. I note that the expansion of DNA database laws to cover arrestees is an emerging issue across the United States and questions have arisen about whether arrestee status would be sufficient to allow the taking of DNA samples without a warrant. See John D. Biancamano, Arresting DNA: The Evolving Nature of DNA Collection Statutes and their Fourth Amendment Justifications, 70 Ohio St. L.J. 619, 644 (2009).

¶ 55. The commentator of the foregoing article discussed two cases, going different ways. In In re Welfare of C.T.L., Juvenile, 722 N.W.2d 484, 492 (Minn. Ct. App. 2006), the Minnesota Court of Appeals struck down a statute directing law enforcement officials to take a biological specimen from a person who has been charged with an offense, but not convicted, as violating the Fourth Amendment. The Minnesota court considered the taking of a DNA swab to be an "intrusion" justifying Fourth Amendment protection. Id. at 489-90. But, the Virginia Supreme Court, in Anderson v. Commonwealth, 650 S.E.2d 702, 706 (Va. 2007), reached a different conclusion regarding Virginia's statute. The Virginia court thought a DNA swab to be "minimally intrusive" and an arrestee's privacy concern therefore pales in relation to the legitimate state interest of identifying suspects for not only the crime for which the suspect was arrested, but to solve past and future crimes. Id. at 705-06.

¶ 56. Of course, Wisconsin does not have a statute directed to arrestees. At least, not yet. Still, the issues permeating those two cases reveal the unsettled nature of the question. Is the taking of a swab minimally intrusive or much more intrusive? Is the taking of an arrestee's DNA justified under the "totality of the circumstances" and "special needs" approaches or not? As far as I am concerned, these are open questions — not only in Wisconsin, but elsewhere. The law is therefore not universally settled. As such, Banks' attorney cannot be deemed deficient for failing to object to the prosecutor's comments at closing arguments. Because I agree with the rest of the majority's opinion on the remaining issues, it is my contention that the judgment should be affirmed.