Disorderly Conduct Statute For Disturbing Public Meeting Survives First Amendment Challenge

State v. Hensel, Minn.Ct.App., 1/25/2016.  Ms. Hensel went down to the Little Falls city council meeting.  She kept moving her chair into a kind of DMZ between the front of chairs and the dais where the council members sat.  The first time she did it the public works director moved it back, telling Ms. Hensel that her chair had to stay where it was.  The second time she moved her chair into the DMZ she and the police chief exchanged words, which soon included the city attorney and city council members.  Ms. Hensel offered to compromise by moving her chair part way back from the dais but still in the DMZ.  At that point the police chief removed her from the meeting.

The state charged Ms. Hensel with disorderly conduct for disturbing a public meeting, which is apparently a misdemeanor. She launched a First Amendment facial challenge to the statute, which required her to prove that there were no set of circumstances under which the statute would be valid, that the statute lacks any plainly legitimate sweep, or that a substantial number of its applications are unconstitutional.  The court concluded that Ms. Hensel wasn't able to do that.  The court construes the statute to proscribe only the disturbance of lawful meetings, and only reaches conduct (including speech) that would both be expected to interfere with the ability to conduct a meeting and intended to interfere with that ability.

Identity Theft Statutory Restitution Award Survives Procedural Due Process and Statutory Interpretation Challenge

State v. Moua, Minn.Ct.App., 1/25/2016, petition for further review denied (4/19/2016).  Time was, crooks stole a credit card, check, what have you, and ran as quickly as possible to the nearest Daytons to ring up as many purchases as the store would allow. Fast forward to today and now crooks steal a credit card, check, what have you, in order to manufacture a "clean" form of payment.  So, the legislature enacted a statute that said that one who steals another's "identity" with the intent to commit a crime owes each "direct victim" a thousand bucks.  No questions asked, just pony up.

Mr. Moua had four hundred plus "identities" in his car when the cops stopped him.  He pled guilty to one count of identity theft and then challenged the statutory restitution on substantive and procedural due process grounds.  The trial court eventually awarded restitution to the fourteen individuals who had incurred economic loss and to one person who had spent over one hundred hours attempting to clear his or her name.  The trial court declined to award restitution to those individuals who were likely to suffer some form of inconvenience due to the identity theft but did not experience economic loss.

The court of appeals rejected the procedural due process challenge, saying, look, Mr. Moua had notice and multiple opportunities to challenge the restitution award.  Because Mr. Moua abandoned his substantive due process claim on appeal the court didn't address it except to say that it seemed the better of the two due process arguments.

Mr. Moua's other argument was that economic loss had to be shown to prove the statute's requirement of "loss or harm."  The court of appeals also rejected this argument.  "Loss" and "harm" have to mean different things or one of the words was superfluous. The statute, itself, defines "loss" in economic terms:  "value obtained ... and expenses incurred by a direct or indirect victim." Minn. Stat. 609.527, subd. 1(f).  There is no definition of "harm". In the era of "law by dictionary" the court pulled out this week's favorite dictionary to find "loss" defined as "physical or psychological damage" or "immoral or unjust effects."  That definition is not limited just to economic loss.  So:

In sum, we hold that when a defendant possesses an individual’s name and private identifying information with the intent to commit a crime, the individual has incurred loss or harm and is thus entitled to $1,000 minimum restitution under the identity-theft statute.

The court does not sanction awarding the statutory restitution to individuals who only had "junk mail"  stolen which contained only publicly available information like names and addresses because that information on its own would be of little use to an identify thief.

1/27/2016: No Supreme Court Published Criminal Opinions

1/20/2016: No Supreme Court Published Criminal Opinions

01/19/2016: No Court of Appeals Published Criminal Opinions

01/13/2016: No Supreme Court Published Criminal Opinions

Search Warrant To Obtain Blood Sample Authorizes Testing For Any Substances

State v. Fawcett, Minn.Ct.App., 01/11/2016.  This is a riff on the unrelenting litigation over the supposed right to drive drunk but a clever one all the same.  The question here is what happens when the cops request and get a search warrant for a blood draw to test for suspected alcohol impairment but then the lab tests that blood sample for drugs as well?  Is the positive drug test admissible at trial?

Officers responded to a two-car injury accident.  Ms. Fawcett, the driver of one of the cars, was one of those injured.  Two officers suspected that Ms. Fawcett may have been driving under the influence of alcohol; she admitted to having had two or three beers. An officer read the implied consent advisory to Ms. Fawcett, but because the officer only suspected alcohol consumption, she only read the part about testing to determine if Ms. Fawcett was under the influence of alcohol.  Ms. Fawcett was not advised about testing to determine whether she was under the influence of a controlled substance.

Meantime, another officer was getting a search warrant for a blood draw.  The application said nothing about suspicions of drug use:

In his application for a search warrant and supporting affidavit, Detective Johann stated the following facts: There had been a motor-vehicle crash and one or more persons suffered bodily harm as a result of the crash. Officers identified Fawcett as the driver of one of the vehicles and stated that she admitted that she had two or three drinks “just prior to” the crash. Fawcett smelled of an alcoholic beverage. Officers at the scene believed that Fawcett had been drinking. Detective Johann applied for the warrant on the grounds that Fawcett’s blood sample “constitutes evidence which tends to show a crime has been committed, or tends to show that a particular person has committed a crime.” He also stated that he sought a blood sample “as evidence of the crime of criminal vehicular operation/homicide.” 

While waiting around for the search warrant Ms. Fawcett agreed to submit to a blood test; officers waited just the same until they had the search warrant to obtain it. Before drawing blood, however, Ms. Fawcett asked for a breath test. Officers gave her a preliminary breath test; the result was 0.00.  A nurse then drew the blood, which the BCA tested; there was no alcohol but there were controlled substances.  

In the ensuing prosecution for criminal vehicular operation, the trial court suppressed evidence of drugs in the  blood sample.  The trial court said that the blood sample had been lawfully obtained under the search warrant and that testing of that blood sample for alcohol was also lawful under the warrant.  Given the officer's rationale for the search warrant - nothing about suspicions of drugs - the trial court thought that alcohol testing was as far as the warrant went. The state appealed this pretrial ruling.

And wins.  The state said that once it lawfully obtained a person's blood sample for the purpose of chemical analysis that person has lost any legitimate expectation of privacy in any test result obtained from that sample.  This is true, the state said, regardless of the scope of any search warrant:  ask for alcohol testing and if you get that you get drugs testing for free.  Put another way, the search warrant authorized the "search" of Ms. Fawcett's body in order to "seize" a quantity of her blood.  After that, it was none of Ms. Fawcett's business what the state reasonably did with it.  Sort of like setting out the trash.

The court of appeals relied upon language from Schmerber v. California, 384 U.S. 757 (1966), (not the exigency business) that said that for Fourth Amendment purposes police must be justified in requiring the blood test, and must employ reasonable "means and procedures" to get it.  A handful of state courts have also relied upon Schmerber to conclude that once the state has lawfully obtained the blood sample there is no reasonable testing of that blood that implicates further consideration of the Fourth Amendment.  Once the blood lawfully left Ms. Fawcett's body she could not complain of any reasonable use of it by the state.

The court does acknowledge that its holding could be taken too far, like drawing blood to test for suspected alcohol and then sending it to the BCA for DNA testing:

Once a blood sample has been lawfully removed from a person’s body, a person loses an expectation of privacy in the blood sample, and a subsequent chemical analysis of the blood sample is, therefore, not a distinct Fourth Amendment event. The district court considered that such a rule necessarily means that a person’s blood could “thereafter be tested without a warrant for any purpose at any time, such as future drug testing or DNA comparisons.” Although such circumstances are not before us, we note that Schmerber dictates that a standard of reasonableness controls and that an unnecessary invasion of privacy interests would most certainly raise concerns of reasonableness.

01/06/2016: No Supreme Court Published Criminal Opinions

01/04/2016: No Court of Appeals Published Criminal Opinions