2/23/2015: No Court of Appeals Published Criminal Opinions

In Deciding Motion For Judgment of Acquittal, Trial Court Must Apply the Two-Step Al-Naseer/Silverdnail Legal Analysis

State v. Sam, Minn.Ct.App., 2/17/2015.  A state trooper made a traffic stop.  Mr. Sam was the driver and R.S. was the front passenger.  One thing led to another – there were no challenges to either the stop or the search of the vehicle – and the officers found marijuana and a firearm in the center console.  There was methamphetamine in the glove box and on R.S.’s person.  The state charged Mr. Sam with several offenses, two of which were possession of narcotics with a firearm enhancement and prohibited person in possession of a firearm.  Mr. Sam stipulated that he was ineligible to possess a firearm.  A jury convicted him of these two offenses.

Mr. Sam moved for a judgment of acquittal after the verdict.  He said that there was insufficient circumstantial evidence to convict him of possession of the methamphetamine and the firearm.  The trial court declined to apply the Al-Naseer/Silvernail two-step analysis of the sufficiency of circumstantial evidence, believing that this was an appellate standard of review that trial courts didn’t have to bother with.

The court of appeals says that the trial court is incorrect.  Applying that two-step analysis,the court of appeals reverses both convictions.  The state conceded that Mr. Sam was not a person who was prohibited from possessing a firearm.  That was because he had been discharged from his conviction of felony escape from custody and he had had his civil rights restored. 

The firearm was still in play, however, because it enhanced the drug offense.  The firearm was in the center console and the meth was in the glove box.  No one argued that these items were in a place over which Mr. Sam exercised exclusive control so the state had to prove that Mr. Sam consciously exercised dominion and control over the two items of contraband.  The court concludes that the state failed to meet that burden.

As it turned out, it was R.S. whom the trooper saw squirming around in the passenger seat as the stop occurred; the trooper didn’t see Mr. Sam do anything other than drive the car.  Ammunition for the firearm was in a backpack in the back seat and the meth in the glove box was directly in front of R.S., who had more meth in his wallet.  The officers found no drugs on Mr. Sam’s person.  These facts, the court concluded, are not both consistent with guilt and inconsistent with any rational hypothesis other than guilt.  The narcotics could have been in the car when Mr. Sam borrowed it, or R.S. may have put the narcotics in the vehicle.  Because there are reasonable inferences from the circumstances proved that are inconsistent with Mr. Sam having consciously exercised dominion and control over the narcotics the state failed to meet its burden of proving constructive possession.

Although not an issue presented to the court here, the court does teasingly discuss whether a jury instruction that incorporates the Al-Naseer and Silvernail analysis ought to be given:

In ruling on the motion, the district court discussed whether a jury instruction may properly be given explaining the limitations on the use of circumstantial evidence. While the district court correctly recognized that several Minnesota appellate opinions have commented about the efficacy of incorporating the Al-Naseer and Silvernail analysis into jury instructions, see State v. Andersen, 784 N.W.2d 320, 340 (Minn. 2010) (Meyer, J., concurring and writing for three justices); State v. Tscheu, 758 N.W.2d 849, 871 (Minn. 2008) (Meyer, J. concurring); McCormick, 835 N.W.2d at 505 n.2, appellant did not argue to the district court, and does not argue on appeal, that the jury instructions were erroneous or insufficient. The absence of a jury instruction concerning the limitations on the use of circumstantial evidence elevates the importance of the district court’s proper evaluation of a motion for judgment of acquittal in circumstances such as are present here.

2/18/2015: No Supreme Court Published Criminal Opinions

A Breathalyzer Is a “Search” Incident to Lawful Arrest

State v. Bernard, Jr.,, Minn.S.Ct., 2/11/2015. Petition For Cert to U.S. Supreme Court GRANTED (12/1/2015).  This is the long awaited DUI test refusal opinion. Bernard, Jr. said that the refusal statute is unconstitutional because it makes criminal the exercise of a right to refuse to consent to an unconstitutional search. Whether in a particular case the submission to a breath test is an unconstitutional search turns largely on how (or how far) one reads the McNeeley opinion. McNeeley upended what had been the prevailing view that Schmerber established pretty much an unwritten rule that the natural dissipation of alcohol in the body was a sufficient exigency to permit a forced breath test without a warrant. The five justice McNeeley majority said, no, that's not what Schmerber meant. The cop on the scene of a DUI arrest needs a warrant unless the circumstances of that arrest make that an unreasonable endeavor.

So, just as Schmerber did not - apparently - always dispense with the warrant requirement because of dissipation McNeeley does not always obligate a warrant because of dissipation.

A driver's refusal to submit to alcohol content testing is to go down the rabbit hole. Even drunks out on the roads who are annually causing roughly thirty percent (30%) of highway deaths nationally cannot be constitutionally punished for the exercise of a constitutional right. If McNeeley requires a warrant in the particular circumstances under review then the refusal to blow into the tube is constitutionally protected.

The court of appeals thought it could climb out of the rabbit hole by asking whether the cop on scene could have obtained a warrant. What came to be known as the "virtual warrant" was surely not going to survive and it did not. In its stead, Chief Justice Gildea, for five members of the court, extends a well known exception to the warrant requirement - search incident to lawful arrest - to extract the very breath out of your lungs. Back down (deeper) into the rabbit hole.

In the days between Schmerber and McNeeley, lower courts more or less glossed over just what the justification was for a forced alcohol test without a warrant. Schmerber, at least as it came to be applied, didn't require paying much attention to articulating a justification. Schmerber rather quickly morphed into a convenient "rule of thumb" that the dissipation of alcohol was enough to support the forced alcohol test without a warrant. Those sanguine days are, of course, now gone. After McNeeley, a warrant may be the default but McNeeley may still let the magistrate get a lot of shut eye.

In the interim between Schmerber and McNeeley a small handful of courts did say, without much thought, that a forced alcohol test without a warrant is a "search" incident to a lawful arrest. And a reasonable one at that. Schmerber did not say that; what it did say was:

Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.

See, generally, "Do Warrantless Breathalyzer Tests Violate the Fourth Amendment?." (Sorry, Westlaw subscription required.).

Justices Page and Stras, penning a joint dissent, were horrified by the adoption of this rationale. It finds no support from the U.S. Supreme Court and most of the opinions that have relied on this theory are before McNeeley and so are of dubious validity.

It's a disconcerting theory on which to rely for sure. While routine trips to the local ER for prostate exams or other body cavity intrusions of suspects doesn't seem to be on the horizon, what of more routine, less invasive intrusions? DNA cheek swabs? Or Heimlich maneuvers to force the expulsion of drugs from an arrestee's mouth? Cf. State v. Hardy, 577 N.w.2d 212 (Minn. 1998). Genital swabs? Cf. State v. Zornes, 831 N.W.2d 609 (Minn 2013). It was not lost on any of the justices that just last term the Supreme Court said that cops need a warrant to view the contents of a cell phone. That is not required, say five members of the Minnesota Supreme Court, to "view" an exemplar of breath in order to measure alcohol content. The juxtaposition of the constitutional protection afforded to one's "selfies" and one's breath is jolting. Bernard, Jr. creates the very "bright line rule" that McNeeley just rejected.

Which begs the question, did the court of appeals really get it so wrong, or did they just answer the wrong question? McNeeley asks whether the cop's decision to forgo getting the magistrate out of bed in the middle of night to sign (actually or electronically) a search warrant was reasonable under all the circumstances? Not whether the magistrate would have signed the warrant but whether it was reasonable to dispense with finding out. Was it really necessary for Justice Gildea to significantly expand the breadth of "search incident to lawful arrest" to save the refusal statute? Is not the analysis now required under McNeeley - a totality of circumstances analysis - the same whether the suspected drunk driver blew or refused to blow?

If asked to do so, Bernard's expansion of the search incident doctrine, in the face of Riley and Gant, both of which circumscribed the reach of the doctrine, may well provoke SCOTUS once again to take a look at Minnesota's handiwork.

2/9/2015: No Court of Appeals Published Criminal Opinions

No Constitutional Right to Morrissey Advisory During Revocation Hearing; Court Avoids Issue of Waiver of Those Rights

State v. Beaulieu, Minn.S.Ct., 2/4/2015.  This is a waiver case gone off the rails.  By the time it's over Justice Dietzen's 4-3 Opinion has got the whole thing so balled up and distorted it's become a house of mirrors.  It just shows that probation violations continue to be the Romanian orphanages from the '80's and '90's of the criminal justice system.  No hugs.

The trial court put Mr. Beaulieu on probation.  Time goes by and the probation officer hauls him into court on an alleged violation.  Not once during any of the appearances on the violation did the trial court comply with the requirements of Rule 27.04, Subd. 2(c): 

Subd. 2. First Appearance.

(1) When the probationer initially appears on the warrant or summons the court must:

(a) Appoint an interpreter if the probationer is disabled in communication.

(b) Give the probationer a copy of the violation report, if not already provided.

(c) Tell the probationer of the right to:

a. a lawyer, including an appointed lawyer if the probationer cannot afford a lawyer;

b. a revocation hearing to determine whether clear and convincing evidence of a probation violation exists and whether probation should be revoked;

c. disclosure of all evidence used to support revocation and of official records relevant to revocation;

d. present evidence, subpoena witnesses, and call and cross-examine witnesses, except the court may prohibit the probationer from confrontation if the court believes a substantial likelihood of serious harm to others exists;

e. present mitigating evidence or other reasons why the violation, if proved, should not result in revocation;

f. appeal any decision to revoke probation.

Not once during any of the appearances on the violation did the trial court inquire of counsel if he had informed Mr. Beaulieu of the procedural rights contained in this rule.  Not once did the trial court inquire of Mr. Beaulieu, himself, if he knew of, understood, and waived those procedural rights.  The trial court did accept Mr. Beaulieu's admission to the violation and the trial court did send him to prison.

Now, a long time ago the U.S. Supreme Court said that 14th Amendment due process required that certain procedures be adhered to before a court could revoke a probationer's probation and imprison him.  Gagnon v. Scarpelli, 411 U.S. 778 (1973).  Minnesota's Rule 27.04 enumerates those procedures, and goes one step beyond by imposing upon the trial court the obligation to inform a probationer of what those procedures are.  Neither Scarpelli nor its companion, Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation) imposes a constitutional obligation upon the trial court to inform the probationer/parolee of what these obligations are.  Mr. Beaulieu said on appeal that there was such a constitutional obligation.

Four of the justices believed that no such constitutional right to be given the advisory existed so Mr. Beaulieu lost on that issue.  All of them, however, believed that the trial court had made an error by failing to give the Rule 27.04 advisory.  The majority said that this error did not affect Mr. Beaulieu's substantial rights, part of the "plain error" test. 

But wait, there's more.  Mr. Beaulieu also complained that the record did not establish that he knowingly and voluntarily waived his Morrissey due process rights.  Justice Dietzen summarily disposes of this claim in a single footnote to the opinion.  It's impossible to parse this footnote for its meaning so the only thing to do is to set it out verbatim and go on to the dissent by Justice Lillehaug:

The dissent contends that Beaulieu’s brief raises an additional issue—whether Beaulieu waived his Morrissey rights. To support that contention, the dissent relies on the court of appeals’ opinion, the order granting review, the brief filed by Beaulieu in this court, and some of the questions asked during oral argument. With all due respect to the dissent, we conclude that the basis for Beaulieu’s waiver claim throughout these proceedings is that the district court failed to advise Beaulieu of his Morrissey rights on the record. For example, Beaulieu’s brief describes the issue presented as whether “the district court violated [his] due process rights by failing to inform him of his Morrissey rights prior to accepting his admission to the alleged probation violation.” He then argues that the district court erred by violating an alleged constitutional right “to be advised” of his Morrissey due process rights and by failing to comply with Minn. R. Crim. P. 27.04. Following these arguments, Beaulieu states, “The next question is whether despite this failure, was there a valid waiver of these rights.” Beaulieu contends the answer to this question is “no” because “he was never advised of his rights on the record.” Yet that is the precise claim we reject above. Because Beaulieu’s waiver claim is not independent of his “notice” argument, we need not separately address it.

Justice Lillehaug correctly reminds the majority that revocation of probation implicate a liberty interest.  That's why there are constitutionally required due process obligations that must be followed before that revocation occurs.  There is a presumption against waiver of constitutional rights.  State v. Finnegan, 784 N.W.2d 243 (Minn. 2010).  There must be something in the record from which to conclude that Mr. Beaulieu knew of and waived his rights voluntarily.  Justice Lillehaug sums up the long and the short of what the record here established (or failed to establish):

The record before us does not contain a single piece of direct or circumstantial evidence that Beaulieu knowingly and voluntarily waived his constitutional rights. We know that the district court did not tell Beaulieu of his rights, as it should have. We know that the prosecutor did nothing to secure a waiver. We know that defense counsel and Beaulieu said nothing on the record about his rights. The record fails to show anything that comes close to a waiver, much less one that was knowing and voluntary.

Joining Justice Lillehaug were Justices Page and Wright.  One more quote from Justice Lillehaug to round this out:

There is sidestepping going on here, but it’s not in Beaulieu’s brief. By imagining that the most important issue in the case is not before it, the majority fails to protect constitutional rights.

2/2/2015: No Court of Appeals Published Criminal Opinions

No Sixth Amendment Violation From A Defendant’s Request to Close the Courtroom Because Closure Did Not Seriously Affect the Fairness of the Judicial Proceedings

State of Minnesota v. Benton, Minn.S.Ct., 1/28/2015.  During Mr. Benton’s jury trial he made two requests to the trial court to close the courtroom.  The trial court granted both requests without objection by the state.  During the first courtroom closure Mr. Benton complained about some testimony that had been received in evidence and about his dissatisfaction with his trial counsel.  During the second courtroom closure Mr. Benton asked to be absent from that day’s proceedings.  During that discussion Mr. Benton was apparently in restraints and dressed in a jail jumpsuit.

On appeal, Mr. Benton said that these courtroom closures violated his Sixth Amendment right to to a public trial.  Justice Anderson, writing for a unanimous court, rejected this argument.  Justice Anderson did so for two reasons:  first, Mr. Benton invited the alleged error and the alleged error did not seriously affect the fairness, integrity,or public reputation of the judicial proceedings.  This “invited error” doctrine has been applied in courtroom closures in the past.  State v. Kortness, 284 Minn. 555, 170 N.W.2d 210 (1969).  Even in an “invited error” situation, an appellate court is still required to review the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings.  Such review is akin to plain error review.  Mr. Benton not only consented to the courtroom closures he requested them.  He made the requests in the belief that they would benefit his defense.  Mr. Benton cannot, therefore, meet the “seriously affect” test.

Mr. Benton also complained about the admission of relationship evidence.  The court had admitted such evidence that was against persons other than the victim of the offense for which he was on trial.  He said that such non-victim relationship evidence should not have been admitted and that the probative value of that evidence was substantially outweighed by the danger of unfair prejudice.  Justice Anderson did not say whether admission of this evidence was error because in the court’s view admission of this evidence did not significantly affect the verdict.

The state had charged Mr. Benton with first degree domestic abuse murder, which requires proof of a “past pattern” of domestic abuse.  On his motion, the trial court bifurcated that element of first degree domestic abuse murder from the other elements.  Despite the bifurcation, the trial court admitted relationship evidence during both phases of the trial.  Justice Anderson didn’t seem to think this mattered, even though the upshot was to vitiate the bifurcation; the whole point of the bifurcation was to keep relationship evidence out of play during the jury’s determination of guilt/innocence of the actual homicide.  The Justice avoids this problem by eschewing deciding whether admission of the relationship evidence – regardless of when it came in – was an error at all.