United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
S. MAYERON, United States Magistrate Judge
above matter came before the Court upon petitioner Gary
Bernard Wessling39;s Petition Under 28 U.S.C. § 2254
For Writ of Habeas Corpus by a Person in State Custody
[Docket No. 1] and Respondent39;s Answer and Motion to
Dismiss the Petition for Writ of Habeas Corpus [Docket No.
matter has been referred to the undersigned United States
Magistrate Judge for a Report and Recommendation pursuant to
28 U.S.C. § 636 and Local Rule 72.1.
December 13, 2013, Petitioner Gary Wessling
(“Petitioner”) was convicted in the McLeod County
District Court for Refusal to Submit to Chemical Testing, in
violation of Minn. Stat. 169A.20');">169A.20, subd. 2. Petition Under 28
U.S.C. § 2254 For Writ of Habeas Corpus by a Person in
State Custody (“Petition”) [Docket No. 1], p. 1.
Petitioner was sentenced to two years39; probation and 45
days of incarceration, with four days39; credit for time
facts underlying Petitioner39;s conviction are as follows.
January 17, 2013, a McLeod County deputy sheriff stopped
Petitioner after receiving a report that he was driving with
a canceled license. Declaration of Daniel J. Koewler in
Support of Petition for a Writ of Habeas Corpus, Statement of
Facts, and Memorandum of Law [Docket No. 4], Ex. 4 (Order
Opinion dated December 12, 2014 in Minnesota Court of Appeals
case no. A14-0046) (“Minn.Ct.App. Order”) [Docket
No. 11-3], p. 1. As he was arresting Petitioner, the deputy
smelled an odor of alcohol and observed that Petitioner39;s
eyes were bloodshot. Id. The deputy placed
Petitioner inside his squad car, at which time the deputy
requested that Petitioner take a preliminary breath test.
Id. Petitioner refused the breath test, and the
deputy took him to the McLeod County Jail. Id.
jail, another deputy read Petitioner the Minnesota Motor
Vehicle Implied Consent Advisory[1"
name="FN1" id="FN1">1] and asked him to take a
breath test. Id.; Petition for Writ of Habeas
Corpus, Statement of Facts, and Memorandum of Law
(“Pet.39;s Mem.”) [Docket No. 2], p. 5.
Petitioner refused to submit to chemical testing, and the
State of Minnesota charged him with second-degree driving
while impaired, test refusal, under Minn. Stat. §
169A.20');">169A.20, subd. 2 (2012). Minn.Ct.App. Order, pp. 1-2.
April, 2013, the McLeod County District Court denied
Petitioner39;s motion to suppress evidence, having found
that the initial stop of Petitioner was lawful, probable
cause existed to arrest Petitioner, and there was probable
cause to request chemical testing. Id., p. 2.
Following this ruling, Petitioner moved to have Minn. Stat.
§§ 169A.20');">169A.20[2" name="FN2" id=
"FN2">2] and 169A.53');">169A.53[3" name=
"FN3" id="FN3">3] (2012) (“Test Refusal
Statutes”), declared unconstitutional in light of the
United States Supreme Court39;s ruling in Missouri v.
McNeely, 133 S.Ct. 1552');">133 S.Ct. 1552 (2013). Id. On July 30,
2013, the district court found that the Test Refusal Statutes
were constitutional under McNeely. Id. The
court explained that the taking of blood, breath or urine
from the body is a search and seizure for Fourth Amendment
purposes, but law enforcement need not obtain a warrant if
they have probable cause combined with an exigent
circumstance. Koewler Decl., Ex. 1 (Order filed July 30, 2013
in McLeod County District Court, Case No. 43-CR-13-114), p. 2
(citing Schmerber v. California, 384 U.S. 757');">384 U.S. 757, 767
(1966); State v. Hardy, 2d 212');">577 N.W.2d 212, 216 (Minn.
1998); State v. Othoudt, 2 N.W.2d 218');">482 N.W.2d 218, 222 (Minn.
1992)). Although McNeely invalidated the rule set
forth in State v. Netland, 2 N.W.2d 202');">762 N.W.2d 202 (Minn.
2009), which held that the “rapid, natural dissipation
of alcohol in the blood” created a single-factor
exigency permitting a warrantless blood-alcohol test, the
court found that a warrant exception may still exist under
the totality of the circumstances. Id., pp. 3-4
(citing Netland, 762 N.W.2d at 214). Additionally,
the court noted that consent is another well-established
exception to the warrant requirement. Id., p. 5
(citing State v. Diede, 2d 836');">795 N.W.2d 836, 846 (Minn.
2011)). The court rejected Petitioner39;s argument that the
request for consent and refusal by him under the Test Refusal
Statutes was not valid because he faced criminal sanctions if
he refused to take a chemical test. Id. According to
the court, that argument was foreclosed by State v.
Wiseman, 16 N.W.2d 689');">816 N.W.2d 689 (Minn.Ct.App. 2012), which held
that the Test Refusal Statutes criminalized a person39;s
refusal to “submit” to a chemical test, and not a
person39;s refusal to consent to a chemical test.
Id. (citing Wiseman, 816 N.W.2d at 693).
Further, the Wiseman court stated that the Test
Refusal Statutes did not implicate a fundamental right, were
not arbitrary or capricious, and were a reasonable means of
furthering a permissible state objective. Id., p. 6
(citing Wiseman, 816 N.W.2d at 695-96). The district
court also found that the Test Refusal Statutes were valid
because of the compelling public interest in protecting state
residents from drunk drivers, and the McNeely
decision had discussed with approval test refusal statutes
among the 50 states. Id., pp. 6-7 (citing
McNeely, 133 S.Ct. at 1566; Skinner v. Ry. Labor
Executives39; Ass39;n, 2');">489 U.S. 602, 618 (1989);
State v. Schwichtenberg, 2006 WL 463865
(Minn.Ct.App. Feb. 28, 2006) (unpublished)). Lastly, the
court found that the Brooks cases-three consolidated
Minnesota appellate court cases decided under the Test
Refusal Statutes-had been remanded by the United States
Supreme Court for further consideration in light of
McNeely, not because Test Refusal Statutes were
unconstitutional, but because the decisions were based on the
exigent-circumstances rationale set forth in
Netland. Id., pp. 7-8 (citing Brooks v.
Minnesota, 133 S.Ct. 1996');">133 S.Ct. 1996 (2013)). For all of these
reasons, the McLeod County District Court found that the Test
Refusal Statutes were constitutional. Id.
parties stipulated to a bench trial, and on October 30, 2013,
the McLeod County District Court found Petitioner guilty of
second-degree test refusal under Minn. Stat. § 169A.20');">169A.20,
subd. 2. Minn.Ct.App. Order, p. 2; Koewler Decl., Ex. 2
(Findings of Fact and Verdict in McLeod County District
Court, Case No. 43-CR-12-1022), pp. 3-4. Petitioner was
sentenced on December 13, 2013. Id., p. 4.
January 6, 2014, Petitioner appealed his conviction to the
Minnesota Court of Appeals. Koewler Decl., Ex. 3 (Notice of
Appeal to Minnesota Court of Appeals). In support, Petitioner
argued that the trial court had erred as a matter of law by
concluding that it was constitutional to criminalize the act
of refusing to acquiesce to a presumptively illegal
warrantless search under the Fourth Amendment. Resp. Ex. 1
(Appellant39;s brief in Minnesota Court of Appeals case no.
A14-0046) [Docket No. 11-1], pp. 5-24. In particular,
and relevant to the instant case, Petitioner maintained that
Minnesota39;s test refusal statute criminalizes the
fundamental constitutional right to refuse a warrantless
search, thereby rendering the statute unconstitutional.
Id., pp. 9-15 (citing Camara v. Mun. Court of
City & County of San Francisco, 387 U.S. 523');">387 U.S. 523, 540
(1967); See v. City of Seattle, 387 U.S. 541');">387 U.S. 541, 546
(1967)). Although the legislature may impose conditions on
privileges it grants, it may not condition such privileges on
the relinquishment of constitutional rights. Id., p.
14-15 (citing Frost v. Railroad Comm39;n, 271 U.S.
583, 593-94 (1926)). Petitioner further contended that the
doctrine of unconstitutional conditions rendered
Minnesota39;s test refusal law unconstitutional and
unenforceable. Id., pp. 15-19. According to
Petitioner, the legislature cannot compel, coerce or prevent
individuals from exercising constitutional rights.
Id., p. 15 (citing Frost, 271 U.S. at
593-94). In Netland, the Minnesota Supreme Court
held that under the exigency exception to the Fourth
Amendment, no warrant was necessary to secure a blood-alcohol
test where there was probable cause to suspect a crime in
which chemical impairment is an element of the offense.
Id., p. 16 (citing 762 N.W.2d at 214). However, in
McNeely, the United States Supreme Court rejected
this theory and held that courts should consider the totality
of the circumstances to determine whether there was
insufficient time to obtain a warrant in a DWI case.
Id., p. 17. Thus, Petitioner maintained that he had
standing to challenge Minnesota39;s test refusal law under
the doctrine of unconstitutional conditions. Id.
indicated that he was not challenging the Minnesota
legislature39;s ability to condition the licensing of
drivers on the waiver of a constitutional right where the
consequence of test refusal was loss of the driver39;s
license. Id. However, it is “altogether
another, absolutely unconstitutional thing to say that a
breach of the ‘implied contract39; will have criminal
consequences.” Id., p. 18. In Petitioner39;s
view, declaring Minnesota39;s test refusal statute
unconstitutional would not eliminate the State39;s ability
to prosecute impaired drivers, as traditional enforcement
tools such as search warrants and warrant exceptions will
remain part of the State39;s “massive prosecutorial
arsenal.” Id., p. 19.
Petitioner urged that State v. Bernard, 844 N.W.2d
41 (Minn.Ct.App. 2014) (“Bernard I”),
was not binding on the court because it was based on the
“inevitable warrant” doctrine rejected by the
United States Supreme Court. Id., p. 19-22 (citing
Camara, 387 U.S. at 540; See, 387 U.S. at
546; Katz v. United States, 389 U.S. 347');">389 U.S. 347 (1967);
Johnson v. United States, 333 U.S. 10');">333 U.S. 10 (1948)).
Further, Bernard I could be reviewed and reversed by
the Minnesota Supreme Court. Id., p. 22 (citation
December 12, 2014, the Minnesota Court of Appeals issued its
order affirming the decision of the McLeod County District
Court. The court held that under Bernard I,
[t]he state is not constitutionally precluded from
criminalizing a suspected drunk driver39;s refusal to
submit to a chemical test under circumstances in which the
requesting officer had grounds to have obtained a
constitutionally reasonable nonconsensual chemical test by
securing and executing a warrant requiring the driver to
submit to testing.
Koewler Decl., Ex. 4, p. 3 (quoting Bernard I, 844
N.W.2d at 47). Accordingly, the district court did not err
when it found Petitioner guilty of second-degree test refusal
because grounds existed to obtain a warrant. Id.
January 9, 2014, Petitioner filed a petition for review of
the appellate court39;s decision in the Minnesota Supreme
Court. Resp. Ex. 4 (Petition for Review of Decision of
Minnesota Court of Appeals, Case No. A14-0046). The issue
presented was whether the Court of Appeals erred “in
ruling that Minnesota39;s DWI Test Refusal law - making it
a crime to refuse to submit to a presumptively illegal,
warrantless search - is constitutional.” Id.,
p. 3. In support, Petitioner again argued that
the rationale behind the Minnesota Court of Appeals39;
decision in Bernard I was contrary to United States
Supreme Court precedent, and therefore, his appeal should be
stayed pending review of that decision by the Minnesota
Supreme Court. Id., pp. 5-9.
February 25, 2015, the Minnesota Supreme Court granted
Petitioner39;s petition for review and stayed all
proceedings pending its review of Bernard I. Resp.
Ex. 5 (Order in Minnesota Supreme Court, Case No. A14-0046
dated Feb. 25, 2015).
February 11, 2015, the Minnesota Supreme Court issued its
decision in Bernard I, holding that a warrantless
breath search was permissible under the Fourth Amendment as a
search incident to a valid arrest. 2d 762');">859 N.W.2d 762, 766-72
(Minn. 2015) (“Bernard
April 14, 2015, the Minnesota Supreme Court vacated its order
of February 25, 2015, and denied Petitioner39;s Petition
for Review. Resp. Ex. 6 (Order in Minnesota Supreme Court,
Case No. A14-0046 dated April 14, 2015).
19, 2015, Petitioner filed the instant habeas petition.
Petitioner argued that the State of Minnesota violated his
due process rights under the Fourteenth Amendment, and rights
under the Fourth and Fifth Amendments, by deeming it a crime
to refuse to submit to a custodial, warrantless search.
Pet.39;s Mem., pp. 1-4, 10-11. Petitioner maintained that
he was being held in custody pursuant to a Minnesota Supreme
Court decision that is directly contrary to numerous United
States Supreme Court cases. p. 11. In Bernard II,
the Minnesota Supreme Court held that chemical tests of the
breath in the DWI context are exempt from the Fourth
Amendment39;s warrant requirement pursuant to the
search-incident-to-arrest doctrine, thereby making it
permissible (under rational basis review) to penalize the
refusal to submit to such a search. Pet.39;s Mem., pp.
11-12, 13 (citing Bernard II, 859 N.W.2d at 772).
Petitioner contended that Bernard II ignored the
explicit holdings of Schmerber, 384 U.S. at 767-68,
and McNeely, 133 S.Ct. at 1566, which both held that
the search-incident-to-arrest exception to the warrant
requirement is inapplicable to “bodily
intrusions” for evidence in DWI prosecutions.
Id., p. 12, 14-15 (citations omitted).
also submitted that Bernard II was directly contrary
to the rationale and guidance provided in Arizona v.
Gant, 332');">556 U.S. 332 (2009). Id., p. 16 (citing
Gant, 556 U.S. at 339). According to Petitioner, for
the search-incident-to-arrest exception to apply, the search
must be spatially and temporally proximate to the arrest.
Id., pp. 16-17 (citing United States v.
Chadwick, 33 U.S. 1');">433 U.S. 1, 15 (1977); New York v.
Belton, 3 U.S. 454');">453 U.S. 454 (1981); United States v.
Camou, 3 F.3d 932');">773 F.3d 932, 938 (9th Cir. 2014); United
States v. Caseres, 33 F.3d 1064');">533 F.3d 1064, 1073 (9th Cir. 2008);
United States v. Smith, 389 F.3d 944');">389 F.3d 944, 951 (9th Cir.
2004)). In Petitioner39;s case, law enforcement determined
that he had no weapons or destructible evidence on his
person, and a significant amount of time passed while he was
being transported to the jail. Id., p. 17. Time,
distance, and the confirmed absence of weapons separated
Petitioner39;s actual arrest from the search of his breath
at the jail, and therefore, the search was not
“incident to arrest.” Id. (citing
Gant, 556 U.S. at 339).
Petitioner maintained that Bernard II was directly
contrary to the holdings in Skinner, Katz,
and Kyllo v. United States, 33 U.S. 27');">533 U.S. 27, 35 (2001).
Id., pp. 18-21. Skinner stands for the
proposition that breath tests are constitutionally protected
“bodily integrity” searches, while Katz
and Kyllo explain why courts cannot draw arbitrary
distinctions between breath tests and blood tests.
Id., p. 19. Chemical testing performed on substances
extracted from the body is a “textbook example”
of using specialized technology not available to the general
public to execute a search, and it requires physical
intrusion into a constitutionally protected area.
Id. (citing Kyllo, 33 U.S. 34');">533 U.S. 34). Broader
social objectives cannot justify a warrantless search when
the immediate law enforcement purpose of the search is to
gather evidence for a criminal case. Id., pp. 19-21
(citing McNeely, 133 S.Ct. at 1565; Ferguson v.
City of Charleston, 32 U.S. 67');">532 U.S. 67, 85 (2001)).
further contended that Bernard II was directly
contrary to the holdings of Camara and See.
Id., pp. 21-22. In those cases, the United States
Supreme Court held that it is unconstitutional to criminalize
a refusal to submit to a presumptively illegal warrantless
search. Id., p. 22 (citing Camara, 387 U.S.
at 523; See, 387 U.S. at 541). Because Petitioner
faced an independent criminal charge for failing to submit to
a warrantless search, the State penalized him for exercising
his Fourth Amendment rights, thereby denying him due process
of law. Id.
Petitioner argued that the Test Refusal Statutes violated the
doctrine of unconstitutional conditions, which dictates that
the state cannot require the relinquishment of a
constitutional right as a condition for granting a privilege.
Id., pp. 22-25 (citing 44 Liquormart, Inc. v.
Rhode Island, 17 U.S. 484');">517 U.S. 484, 513 (1996); Mapp v.
Ohio, 367 U.S. 643');">367 U.S. 643, 660 (1961); Frost v. Railroad
Commission of State of California, 271 U.S. 583');">271 U.S. 583, 593-94,
599 (1926); Home Ins. Co. of New York v. Morse, 87
U.S. 445, 451 (1874); Bernard II, 859 N.W.2d at
773). The doctrine applies in Petitioner39;s case because
the Test Refusal Statutes violate the fundamental right to
due process of law under the Fourth, Fifth and Fourteenth
Amendments to the United States Constitution by authorizing
the state to criminally prosecute drivers for refusing to
waive their constitutional rights to a search warrant,
privacy and bodily integrity. Id., p. 24. The Test
Refusal Statutes establish a statutory exception to the
warrant requirement by conditioning the privilege of driving
on the surrender of constitutional rights. Id., p.
response, Respondent first asserted that Petitioner39;s
claims under the Fourteenth and Fifth Amendments were not
“fairly presented” in state court, and therefore,
those claims must be dismissed. Respondent39;s Answer and
Motion to Dismiss the Petition for Writ of Habeas Corpus
(“Resp.39;s Mem.”) [Docket No. 11], p. 7
(citing Duncan v. Henry, 13 U.S. 364');">513 U.S. 364, 365-66
(1995)). Respondent also contended that Petitioner39;s
Fourth Amendment claim was barred under the doctrine
enunciated in Stone v. Powell, 28 U.S. 465');">428 U.S. 465, 494
(1976), because the state afforded Petitioner a full and fair
opportunity to raise present this claim. Id., pp.
7-8 (citing Poole v. Wood, 3d 246');">45 F.3d 246, 249 (8th
even if Petitioner39;s Fourth Amendment claim was not
“Stone-barred, ” his habeas petition
must still be denied because Bernard II is not
contrary to established United States Supreme Court case law.
Id., pp. 8-9 (citing Lopez v. Smith, 574
U.S. __(2014) (slip op. at 5)). Petitioner39;s reliance on
Schmerber was misplaced because that case held that
the Fifth Amendment right against self-incrimination did not
apply to a warrantless search of a person39;s blood and the
introduction of such evidence at trial. Id., pp.
9-10 (citing Schmerber, 384 U.S. at 761, 766-67).
Schmerber did not discuss the specific question in
this case of whether the state may constitutionally
criminalize chemical test refusal, and therefore, the state
court39;s decision could not be contrary to
Schmerber. Id., p. 10 (citation omitted).
submitted that Petitioner's reliance on McNeely
was similarly unavailing because the McNeely court
established that implied consent laws requiring chemical
testing are constitutional. Id., pp. 10-11 (citing
McNeely, 133 S.Ct. at 1566; Wall v. Stanek,
3d 890');">794 F.3d 890, 895-96 ...