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Wessling v. Sandquist

United States District Court, D. Minnesota

November 16, 2016

GARY BERNARD WESSLING, Petitioner,
v.
TERRY SANDQUIST, In his official capacity as McLeod County Probation Officer, Respondent.

          REPORT AND RECOMMENDATION

          JANIE S. MAYERON, United States Magistrate Judge

         The above matter came before the Court upon petitioner Gary Bernard Wessling's Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody [Docket No. 1] and Respondent's Answer and Motion to Dismiss the Petition for Writ of Habeas Corpus [Docket No. 11].

         The 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.

         I. FACTUAL BACKGROUND

         On 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 years' probation and 45 days of incarceration, with four days' credit for time served. Id.

         The facts underlying Petitioner's conviction are as follows.

         On 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 Petitioner'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.

         At the 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.'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.

         In April, 2013, the McLeod County District Court denied Petitioner'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 Court'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 Petitioner'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 person's refusal to “submit” to a chemical test, and not a person'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 Executives' Ass'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.

         The 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.

         On 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 (Appellant's brief in Minnesota Court of Appeals case no. A14-0046) [Docket No. 11-1], pp. 5-24.[4] In particular, and relevant to the instant case, Petitioner maintained that Minnesota'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 Comm'n, 271 U.S. 583, 593-94 (1926)). Petitioner further contended that the doctrine of unconstitutional conditions rendered Minnesota'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 Minnesota's test refusal law under the doctrine of unconstitutional conditions. Id.

         Petitioner indicated that he was not challenging the Minnesota legislature'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 driver's license. Id. However, it is “altogether another, absolutely unconstitutional thing to say that a breach of the ‘implied contract' will have criminal consequences.” Id., p. 18. In Petitioner's view, declaring Minnesota's test refusal statute unconstitutional would not eliminate the State's ability to prosecute impaired drivers, as traditional enforcement tools such as search warrants and warrant exceptions will remain part of the State's “massive prosecutorial arsenal.” Id., p. 19.

         Finally, 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 omitted).

         On 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 driver'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.

         On January 9, 2014, Petitioner filed a petition for review of the appellate court'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 Minnesota's DWI Test Refusal law - making it a crime to refuse to submit to a presumptively illegal, warrantless search - is constitutional.” Id., p. 3.[5] In support, Petitioner again argued that the rationale behind the Minnesota Court of Appeals' 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.

         On February 25, 2015, the Minnesota Supreme Court granted Petitioner'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).

         On 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 II”).[6]

         On April 14, 2015, the Minnesota Supreme Court vacated its order of February 25, 2015, and denied Petitioner's Petition for Review. Resp. Ex. 6 (Order in Minnesota Supreme Court, Case No. A14-0046 dated April 14, 2015).

         On June 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.'s Mem., pp. 1-4, 10-11. Petitioner maintained that he was being held in custody[7] 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 Amendment'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.'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).

         Petitioner 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 Petitioner'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 Petitioner'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).

         Additionally, 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)).

         Petitioner 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.

         Finally, 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 Petitioner'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. 25.

         In response, Respondent first asserted that Petitioner's claims under the Fourteenth and Fifth Amendments were not “fairly presented” in state court, and therefore, those claims must be dismissed. Respondent's Answer and Motion to Dismiss the Petition for Writ of Habeas Corpus (“Resp.'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 Petitioner'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 Cir. 1995)).

         Alternatively, even if Petitioner'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)). Petitioner'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 person'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 court's decision could not be contrary to Schmerber. Id., p. 10 (citation omitted).

         Respondent 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 ...


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