                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1995

                            David Scott Wilsey, petitioner,
                                    Respondent,

                                          vs.

                           Commissioner of Public Safety,
                                   Appellant.

                                 Filed July 14, 2014
                                      Reversed
                                  Peterson, Judge

                            St. Louis County District Court
                             File No. 69DU-CV-13-1144

Peter J. Martin, Martin Law Firm, Minneapolis, Minnesota (for respondent)

Lori Swanson, Attorney General, Joseph M. Simmer, Assistant Attorney General, St.
Paul, Minnesota (for appellant)

       Considered and decided by Peterson, Presiding Judge; Connolly, Judge; and

Willis, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

PETERSON, Judge

      Appellant Commissioner of Public Safety challenges a district court order

rescinding the revocation of respondent’s driver’s license under the implied-consent

statute. We reverse.

                                      FACTS

      Respondent David Scott Wilsey was stopped in Duluth by Trooper Mike LeDoux

just before 11:00 p.m. on February 27, 2013, for having a taillight out. LeDoux detected

a strong odor of alcohol and observed that respondent had bloodshot and glossy eyes.

LeDoux asked respondent if he had consumed alcohol, and respondent said that he drank

two beers that evening.      After respondent failed three field sobriety tests and a

preliminary breath test, LeDoux arrested him for driving while under the influence of

alcohol.

      Respondent was read the standard implied-consent advisory, which, in part,

informed him that “[r]efusal to take a test is a crime.”       Respondent said that he

understood the advisory, he did not want to consult with an attorney, and he would take a

blood test. The test showed that respondent’s alcohol concentration was .09.

      Appellant revoked respondent’s driver’s license effective April 8, 2013.

Respondent petitioned for rescission of the revocation, arguing that the blood test was an

involuntary search and, under Missouri v. McNeely, 133 S. Ct. 1552 (2013) (plurality

opinion), which was decided on April 17, 2013, exigent circumstances did not exist to

excuse a failure to obtain a warrant to permit the search. Appellant did not dispute that


                                            2
there were no exigent circumstances that allowed a warrantless search and, instead,

argued that respondent consented to the search.

       The district court determined that while it was required to “consider the totality of

circumstances in making a factual conclusion on whether [respondent’s] consent was

coerced or voluntary, one particular factor sticks out—that [respondent] was informed

that if he did not submit to the testing, he would be committing a crime.” The district

court further determined:

              The options for [respondent] here were “consent” to a blood
              test or be charged with an additional crime on top of the
              crime the State already had probable cause to arrest you for.
              The court sees no world where such an option provides an
              actual choice.

                     The State has a burden of showing by a preponderance
              of evidence that consent was freely and voluntarily given.
              The State has failed to meet that burden. The facts and
              circumstances present indicate that [respondent’s] “consent”
              was actually acquiescence to a show of authority rather than
              true consent. Therefore, the court finds that [respondent] did
              not provide voluntary consent, and results of the test shall be
              suppressed.

The district court then rescinded the license revocation because it was based on the

blood-test result.

       Appellant filed a notice of appeal on October 21, 2013, and on October 23, 2013,

the supreme court released its opinion in State v. Brooks, 838 N.W.2d 563 (Minn. 2013),

cert. denied, 134 S. Ct. 1799 (2014).




                                             3
                                     DECISION

       The United States and Minnesota Constitutions guarantee persons the right to be

free from “unreasonable searches and seizures.” U.S. Const. amend. IV; Minn. Const. art.

I, § 10. “This guarantee establishes the right to privacy ‘as one of the unique values of

our civilization,’ and ‘with few exceptions, stays the hands of the police unless they have

a search warrant.’” Brooks, 838 N.W.2d at 568 (quoting McDonald v. United States, 335

U.S. 451, 453, 69 S. Ct. 191, 192 (1948)).

       In Brooks, a driver who agreed to take a blood or urine test on three separate

occasions after being told that refusing to take a test is a crime moved to suppress the test

results because the police took the blood and urine samples without a warrant. Id. at 565-

66. The supreme court explained:

              Taking blood and urine samples from someone constitutes a
              “search” under the Fourth Amendment. But police do not
              need a warrant if the subject of the search consents.

                     For a search to fall under the consent exception, the
              State must show by a preponderance of the evidence that the
              defendant freely and voluntarily consented. Whether consent
              is voluntary is determined by examining the “totality of the
              circumstances.” Consent to search may be implied by action,
              rather than words. And consent can be voluntary even if the
              circumstances of the encounter are uncomfortable for the
              person being questioned.

Id. at 568-69 (citations omitted). Then, citing Bumper v. North Carolina, 391 U.S. 543,

548-49, 88 S. Ct. 1788, 1792 (1968), the supreme court explained that “[a]n individual

does not consent, however, simply by acquiescing to a claim of lawful authority.”

Brooks, 838 N.W.2d at 569.



                                             4
       Like respondent, Brooks argued

              that he did not truly have a choice of whether to submit to
              [blood and urine] tests because police told him that if he did
              not do so, he would be committing a crime, and . . . the fact
              that police advised him that it is a crime to refuse the
              chemical tests renders any consent illegally coerced.

Id. at 570.

       The supreme court rejected this argument and explained:

              [A] driver’s decision to agree to take a test is not coerced
              simply because Minnesota has attached the penalty of making
              it a crime to refuse the test.

                     . . . In Bumper, police sought to justify their search of a
              house based on the owner’s consent, contending that she
              consented to the search by saying “[G]o ahead” after police
              told her they had a warrant. The Court held that this sort of
              submission to authority did not constitute consent. The Court
              concluded that when a police officer claims authority to
              search a house under a warrant, “he announces in effect that
              the occupant has no right to resist the search. The situation is
              instinct with coercion — albeit colorably lawful coercion.
              Where there is coercion there cannot be consent.”

                     Unlike Bumper, the Minnesota Legislature has given
              those who drive on Minnesota roads a right to refuse the
              chemical test. If a driver refuses the test, the police are
              required to honor that refusal and not perform the test.
              Although refusing the test comes with criminal penalties in
              Minnesota, the Supreme Court has made clear that while the
              choice to submit or refuse to take a chemical test “will not be
              an easy or pleasant one for a suspect to make,” the criminal
              process “often requires suspects and defendants to make
              difficult choices.” Bumper therefore does not support
              Brooks’s argument that the State unlawfully coerced his
              consent.

Id. at 571 (alteration in original) (footnotes omitted) (citations omitted).




                                               5
      Unlike the homeowner in Bumper, who had no right to resist the search of her

house, respondent had a right to refuse to submit to a blood test, and as in Brooks, his

consent was not just acquiescence to a show of authority. Therefore, in light of Brooks,

the district court erred in determining that respondent did not provide voluntary consent

to testing because he “was informed that if he did not submit to the testing, he would be

committing a crime,” and we reverse the order rescinding respondent’s license

revocation.

      Reversed.




                                           6
