Court Concludes Under Totality of Circumstances that Driver “Consented” to Alcohol Testing

State v. Brooks, Minn.S.Ct., 10/23/2013.  Three times, police stopped Mr. Brooks on suspicion of driving while intoxicated.  In each instance officers read the implied consent advisory to him and provided him with the opportunity to consult with counsel.  In each instance, Mr. Brooks eventually submitted to testing, urine twice and blood once.  In each instance, Mr. Brooks moved to suppress the results of the tests because police had taken the samples without a warrant.  In two of the cases the trial court denied the suppression motion, relying upon the “single factor exigency” rationale of State v. Netland, 762 N.W.2d 202 (Minn. 2009).  In the third case, the trial court denied the suppression motion because it concluded that Mr. Brooks had consented to the test.

While all this was going on the U.S. Supreme Court decided McNeeley, which among other things threw out Chief Justice Gildea’s “single factor exigency” Netland opinion and adopted a “totality of the circumstances” fact specific approach in its stead.  The Chief Justice gets a redo with Mr. Brooks.

And hones in on “consent”.  Writing an Opinion for five members of the court – including Justice Lillehaug – the Chief Justice concludes that Mr. Brooks was not coerced into “consenting” to the tests.  (Justice Wright did not participate.)  The court is not finding “consent” based upon the implied consent statute; rather, it is looking at the “totality of the circumstances” on the ground. These circumstances included:  Police had probable cause to believe that he had been driving under the influence.  They followed the proper procedures under the implied consent law.  Police read Mr. Brooks the advisory “which makes clear that drivers have a choice of whether to submit to testing.”  Police gave Mr. Brooks a telephone and time to use it to chat up his attorney.  All these things support the conclusion that the police did not overcome Mr. Brooks’ capacity for self-determination.

The court does reject Mr. Brooks’ assertion that his “consent” was invalidly coerced because the police advised him that it was a crime to refuse the tests.  The court insists that Mr. Brooks had choices - take the test or not – because the police were required to honor that choice, unlike a search warrant where there really is no choice, or “consenting” to a warrantless search in the face of a boatload of armed and screaming officers.  The cops also had to inform Mr. Brooks that he could refuse the testing and allow him to consult with an attorney before deciding. 

Justice Stras joined in the judgment but disavowed the opinion.  Justice Stras pointed to Prideaux v. State, 310 Minn. 405, 247 N.W.2d 385 (1976), which said “the 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 …”  He also observed that the court had said this even before it was a crime to refuse.   Now, Justice Stras hints that he has a “secret” theory of consent that the majority might have considered but presumably he now doesn’t have to disclose his secret.

The Justice thought all of this angst about “consent” could have been set aside for another day by concluding instead that when the cops stopped Mr. Brooks each time Netland was the law of the state on which the cops were entitled to rely.  Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419 (2011).  The Justice was attempting to coerce the court to adopt the Leon good faith exception to the exclusionary rule; he got no votes for that push.