                              STATE OF MINNESOTA

                               IN SUPREME COURT

                                       A15-0076

Court of Appeals                                                           Gildea, C.J.
                                                    Took no part, Chutich, McKeig, JJ.
State of Minnesota,

                          Appellant,

vs.                                                            Filed: October 12, 2016
                                                             Office of Appellate Courts
Ryan Mark Thompson,

                          Respondent.

                             ________________________


Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Daniel A. McIntosh, Steele County Attorney, Julia A. Forbes, Assistant County Attorney,
Thomas R. Ragatz, Special Assistant County Attorney, Owatonna, Minnesota, for
appellant.

Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota; and

Daniel J. Koewler, Charles A. Ramsay, Ramsay Law Firm, P.L.L.C., Roseville, Minnesota,
for respondent.

Lori Swanson, Attorney General, Alethea M. Huyser, Assistant Solicitor General, Michael
Everson, Assistant Attorney General, Saint Paul, Minnesota, for amicus curiae Minnesota
Attorney General.

Teresa Nelson, American Civil Liberties Union of Minnesota, Saint Paul, Minnesota; and

Bruce Jones, Peter M. Routhier, Faegre Baker Daniels LLP, Minneapolis, Minnesota, for
amicus curiae American Civil Liberties Union of Minnesota.

                             ________________________



                                          1
                                     SYLLABUS

       1.     Under Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016), the

Fourth Amendment does not allow the State to prosecute respondent for violating Minn.

Stat. § 169A.20, subd. 2 (2014), for refusing the blood test requested of him.

       2.     Because the intrusion into respondent’s privacy interests is greater than the

government’s need for a urine sample, a warrantless urine test does not fall within the

search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement.

       3.     Because the good-faith exception to the exclusionary rule is a rule of

evidence and respondent does not challenge the admission of any evidence, the good-faith

exception does not apply.

       4.     Because respondent cannot be prosecuted under the Fourth Amendment for

refusing to consent to an unconstitutional search, Minn. Stat. § 169A.20, subd. 2, which

criminalizes an arrestee’s refusal to take a warrantless blood or urine test, is

unconstitutional as applied.

       Affirmed.

                                      OPINION

GILDEA, Chief Justice.

       The question presented in this case is whether Minn. Stat. § 169A.20, subd. 2 (2014)

(“test refusal statute”), is constitutional as applied to respondent Ryan Mark Thompson.

After Thompson was arrested on suspicion of driving while impaired and refused

warrantless blood and urine tests, he was charged with and convicted of test refusal.



                                             2
Thompson moved to dismiss the test refusal charge, arguing that the statute was

unconstitutional, but the district court denied his motion. On appeal, the court of appeals

reversed. State v. Thompson, 873 N.W.2d 873, 880 (Minn. App. 2015). Because we

conclude that the test refusal statute is unconstitutional as applied to Thompson, we affirm.

       Around 1:00 a.m. on April 13, 2012, an Owatonna police officer watched patrons

as they left a bar in Owatonna at closing time. The officer saw a vehicle, which police later

determined Thompson was driving, jump the curb and then stop quickly before reversing

and leaving the parking lot. As the vehicle turned onto the street outside the bar, it cut the

corner short and crossed the center line. The officer initiated a traffic stop.

       When the officer approached the vehicle, Thompson provided the driver’s license

of a female passenger in the vehicle. Thompson informed the officer that he did not have

his license with him, but the officer was eventually able to identify Thompson by his name

and date of birth. The officer noticed “an overwhelming odor” of alcohol coming from the

vehicle while he spoke with Thompson, and saw that Thompson had “watery and glassy

eyes.” Thompson maintained that he had consumed only one beer.

       After Thompson failed standardized field sobriety tests and a preliminary breath

test, the officer placed Thompson under arrest for driving while impaired, and transported

him to the Steele County Detention Center. There, officers gave Thompson a telephone, a

telephone book, and a directory of attorneys he could contact. Thompson left a voicemail

with one attorney and told the officer that he had finished attempting to contact an attorney.

After the officer read the Minnesota Implied Consent Advisory to Thompson, the officer




                                              3
asked Thompson to submit to a blood or urine test. Thompson refused both tests, and when

asked why, stated “[f]or the fact that I don’t think I’ve been prosecuted properly.”

       The State subsequently charged Thompson with one count of second-degree test

refusal, Minn. Stat. §§ 169A.20, subd. 2, 169A.25 (2014); one count of third-degree

driving while impaired, Minn. Stat. §§ 169A.20, subd. 1(1), 169A.26 (2014); one count of

obstruction of legal process, Minn. Stat. § 609.50, subds. 1(2), 2(3) (2014); and one count

of driving over the centerline, Minn. Stat. § 169.18, subd. 1 (2014). Thompson moved for

dismissal of the test refusal charge, arguing that the application of the test refusal statute to

him violated his substantive due process rights and the doctrine of unconstitutional

conditions. Relying on our decision in State v. Bernard, 859 N.W.2d 762 (2015), aff’d sub

nom. Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016), the district court

held that the statute was constitutional. Thompson then waived his right to a jury trial and

other trial rights, and the parties agreed to a stipulated-facts trial under Minn. R. Crim.

P. 26.01, subd. 4, on the test refusal charge. The State dismissed the other charges. The

district court found Thompson guilty of test refusal.

       The court of appeals reversed Thompson’s conviction, concluding that charging an

individual with test refusal violates a fundamental right because a warrantless search of a

driver’s blood or urine does not qualify under an exception to the warrant requirement and

the test refusal statute is not narrowly tailored to serve a compelling government interest.

Thompson, 873 N.W.2d at 878, 880. We granted the State’s petition for review.

       On appeal, the State argues that the test refusal statute was constitutionally applied

to Thompson because a warrantless search of his blood or urine would have been


                                               4
constitutional as a search incident to a valid arrest.1 In the alternative, the State argues that

even if a warrantless search violates the Fourth Amendment, we should nevertheless

uphold Thompson’s conviction under the good-faith exception to the exclusionary rule.

We address each argument in turn.

                                               I.

       We turn first to the State’s contention that the test refusal statute is constitutional as

applied to Thompson. Under the test refusal statute, “[i]t is a crime for any person to refuse

to submit to a chemical test of the person’s blood, breath, or urine under section 169A.51

(chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).”

Minn. Stat. § 169A.20, subd. 2. Minnesota law also provides that “[a]ny person who

drives . . . a motor vehicle within this state . . . consents . . . to a chemical test of that

person’s blood, breath, or urine for the purpose of determining the presence of alcohol, a

controlled substance or its metabolite, or a hazardous substance” and authorizes law

enforcement to request that a driver submit to a chemical test of their blood, breath, or urine

in certain circumstances. See Minn. Stat. § 169A.51, subd. 1 (2014).

       The State contends that a warrantless search of an arrestee’s urine, conducted after

the suspected drunk driver is in police custody, is constitutional under the Fourth

Amendment as a search incident to a valid arrest. Because an arrestee has no right to refuse

a constitutional search, the State argues, the test refusal statute is constitutional as applied


1
      In its initial brief, the State, citing Maryland v. King, ___ U.S. ___, 133 S. Ct. 1958,
1969 (2013), also argued that we should uphold warrantless blood and urine tests under a
general reasonableness analysis. The State abandoned this argument following the
Supreme Court’s decision in Birchfield, ___ U.S. ___, 136 S. Ct. 2160.

                                               5
to Thompson. For his part, Thompson maintains that a warrantless urine search does not

qualify as a search incident to a valid arrest and that the test refusal statute

unconstitutionally criminalizes the assertion of the right to be free from unreasonable

searches. The constitutionality of a statute presents a question of law that we review de

novo. In re Welfare of M.L.M., 813 N.W.2d 26, 29 (Minn. 2012).

       The Fourth Amendment to the United States Constitution guarantees “[t]he right of

the people to be secure in their persons . . . against unreasonable searches and seizures.”

U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. The “touchstone” of the Fourth

Amendment is reasonableness. United States v. Knights, 534 U.S. 112, 118 (2001). When

law enforcement seeks to conduct a search to uncover evidence of criminal wrongdoing,

reasonableness typically requires law enforcement to obtain a judicial warrant before

conducting the search. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (citing

Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989)); see also Riley v. California,

___U.S. ___, 134 S. Ct. 2473, 2482 (2014) (“Such a warrant ensures that the inferences to

support a search are drawn by a neutral and detached magistrate instead of being judged

by the officer engaged in the often competitive enterprise of ferreting out crime.” (citation

omitted) (internal quotation marks omitted)). Searches conducted without a warrant,

“outside the judicial process, without prior approval by judge or magistrate, are per se

unreasonable . . . subject only to a few specifically established and well-delineated

exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The exception at issue here

is the search-incident-to-arrest exception. See, e.g., Riley, ___ U.S. at ___, 134 S. Ct. at

2483-84 (discussing the search-incident-to-arrest exception).


                                             6
       While this case was pending before our court, the United States Supreme Court

decided Birchfield, ___ U.S. ___, 136 S. Ct. 2160. In Birchfield, the Court considered the

search-incident-to-arrest exception in analyzing the constitutionality of the application of

North Dakota’s and Minnesota’s test refusal statutes to warrantless breath and blood tests.2

Specifically, the Court considered how one of the “established and well-delineated”

exceptions to the warrant requirement, a search performed incident to a valid arrest, applied

to breath and blood tests of drivers arrested for drunk driving. ___ U.S. at ___, 136 S. Ct.

at 2174-76, 2188. The Court noted that in United States v. Robinson, 414 U.S. 218, 235

(1973), it had previously “repudiated ‘case-by-case adjudication’ of the question whether

an arresting officer had the authority to carry out a search of the arrestee’s person” and

reaffirmed that “[t]he permissibility of” a search incident to an arrest “does not depend on

whether a search of a particular arrestee is likely to protect officer safety” or lead to the

discovery of evidence that could be destroyed. Birchfield, ___ U.S. at ___, 136 S. Ct. at

2176. The Court reaffirmed “Robinson’s categorical rule” in Riley, ___ U.S. at ___,

134 S. Ct. at 2484, and further explained how the rule should be applied in “situations that

could not have been envisioned when the Fourth Amendment was adopted.” Birchfield,

___ U.S. at ___, 136 S. Ct. at 2176.

       The Court in Birchfield applied the test used in Riley to determine whether breath

and blood tests of suspected drunk drivers qualified as searches incident to a valid arrest,


2
       In 2013, North Dakota adopted a law similar to Minnesota’s test refusal statute that
makes it a crime for a driver to refuse to submit to a test of their blood, breath, or urine to
determine their alcohol concentration or the presence of other drugs. Birchfield, ___ U.S.
at ___, 136 S. Ct. at 2170; see also N.D. Cent. Code § 39-08-01(1)–(3) (2016).

                                              7
balancing “ ‘the degree to which [breath and blood tests] intrud[e] upon an individual’s

privacy and . . . the degree to which [breath and blood tests are] needed for the promotion

of legitimate governmental interests.’ ”       Id. at ___, 136 S. Ct. at 2176 (quoting

Riley, ___ U.S. at ___, 134 S. Ct. at 2484). To assess the intrusion upon individual privacy,

the Court considered three factors: (1) the extent of the physical intrusion upon the

individual to obtain the evidence; (2) the extent to which the evidence extracted could be

preserved and mined for additional, unrelated private information; and (3) the extent to

which participation in the search would enhance the embarrassment of the arrest. Id. at

___, 136 S. Ct. at 2176-77. The Court then proceeded to balance these considerations

against the government’s “great” need for alcohol concentration testing. Id. at ___,

136 S. Ct. at 2178-84.

         Applying this framework, the Court upheld our decision in Bernard, 859 N.W.2d

762, holding that “the Fourth Amendment permits warrantless breath tests incident to

arrests for drunk driving.” Birchfield, ___ U.S. at ___, 136 S. Ct. at 2184. The court

concluded that breath tests have only a “slight” impact on individual privacy. Id. at ___,

136 S. Ct. at 2184. A blood test, however, due to its “significantly more intrusive” nature,

may not be “administered as a search incident to a lawful arrest for drunk driving” and

requires a warrant absent the existence of exigent circumstances. Id. at ___, 136 S. Ct. at

2185.3




3
         The State does not argue that exigent circumstances are present in this case.

                                               8
       Thompson refused both a blood and a urine test. Birchfield is dispositive with

respect to the blood test that Thompson refused. A warrantless blood test may not be

administered as a search incident to a lawful arrest of a suspected drunk driver. See also

State v. Trahan, No. A13-0931, slip op. at 13 (Minn. filed Oct. 12, 2016) (holding that test

refusal statute was unconstitutional as applied to a driver prosecuted for refusing a

warrantless blood test). The Court in Birchfield did not address whether warrantless urine

tests were constitutional under the search-incident-to-arrest exception. But Birchfield

presents the appropriate framework for us to analyze the constitutionality of Minnesota’s

test refusal statute as it applies to warrantless urine tests.4




4
        Thompson argued, and the court of appeals held, that the test refusal statute was
unconstitutional as applied to Thompson using a substantive due process analysis.
Specifically, the court of appeals held that charging an individual with test refusal
implicates a fundamental right because a warrantless search of the driver’s blood or urine
would not have been constitutional under an exception to the warrant requirement, and that
the test refusal statute is not narrowly tailored to serve a compelling government interest.
Thompson, 873 N.W.2d at 879-80. In Birchfield, the Court did not examine whether
criminalizing the refusal to submit to an unconstitutional search violated the Due Process
Clause. Instead, the Court’s conclusion that the warrantless blood test violated the Fourth
Amendment was dispositive. ___ U.S. at ___, 136 S. Ct. at 2184. The Court has followed
this method of analysis in other cases as well. See County of Sacramento v. Lewis, 523 U.S.
833, 842 (1998) (“ ‘[W]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process, must be the guide
for analyzing these claims.’ ” (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994))); see
also Camara v. Mun. Ct., 387 U.S. 523, 534, 540 (1967) (recognizing “a constitutional
right” to insist that home inspectors obtain a search warrant for an otherwise unreasonable
search, “and that appellant may not constitutionally be convicted for refusing to consent”).

                                                9
                                              A.

       We turn first to the impact urine tests have on individual privacy interests,

considering, as the Court did in Birchfield, the level of physical intrusion, the ability of the

State to retain a sample containing other personal information, and the enhanced

embarrassment a urine test is likely to cause during an arrest.

                                               1.

       The State argues that although the breath test upheld in Birchfield as a search

incident to a valid arrest involved a “negligible” physical intrusion into an arrestee’s bodily

integrity, a urine test “need not involve any physical intrusion.” Such a test neither

“ ‘require[s] piercing the skin’ ” nor “extract[ing] a part of the subject’s body.” Birchfield,

___ U.S. at ___, 136 S. Ct. at 2178 (quoting Skinner, 489 U.S. at 625). For his part,

Thompson argues that a urine test intrudes upon an individual’s privacy interest. This

intrusion, however, is not a physical one, and so we address this aspect of Thompson’s

argument later in our analysis.5

       With respect to the physical intrusion portion of the analysis, we agree with the State

that urine tests do not implicate many of the physical intrusion concerns the Court discusses

in Birchfield’s analysis of blood tests. The administration of a urine test does not involve

an intrusion beneath the surface of the skin, and urine is arguably “not part of [the human]

bod[y],” given that urination is a “natural process” that would occur “sooner or later . . .



5
       Thompson and amicus American Civil Liberties Union note that urine testing can
involve the taking of a urine sample through forced catheterization. The State concedes
this point, but this case does not involve that type of forced urine sample.

                                              10
even without the test.” Id. at ___, 136 S. Ct. at 2177. In terms of physical intrusion,

therefore, a urine test is more similar to a breath test than a blood test. Cf. id. at ___,

136 S. Ct. at 2176-77 (discussing the minimal invasiveness of a breath test).

                                             2.

       Although urine tests resemble breath tests in terms of a lack of physical

intrusiveness, the fact that a urine test “places in the hands of law enforcement authorities

a sample that can be preserved and from which it is possible to extract information beyond

a simple [alcohol concentration] reading” makes urine tests comparable to blood tests.

Birchfield, ___ U.S. at ___, 136 S. Ct. at 2178. Indeed, Thompson argues, there is an even

greater risk associated with urine samples, as they can “contain additional metabolites and

other types of ‘highly personal information’ that will never appear in a blood sample.”

       Regardless of whether urine samples contain more information than blood samples,

the logic in the Court’s analysis of blood tests applies with equal force to urine tests. A

breath test, as the Court noted, is capable of revealing only one thing in the hands of law

enforcement: an individual’s blood-alcohol concentration. Id. at ___, 136 S. Ct. at 2177.

Urine tests, on the other hand, can be used to detect and assess a wide range of disorders

and can reveal whether an individual is pregnant, diabetic, or epileptic. See Skinner,

489 U.S. at 617. Moreover, no breath sample remains after a breath test, see Birchfield,

___ U.S. at ___, 136 S. Ct. at 2177. But that is not true with respect to a urine test. Even

when law enforcement is prohibited from using the collected urine samples for purposes

other than alcohol concentration testing, “the potential [for abuse] remains and [the test]

may result in anxiety for the person tested.” Id. at ___, 136 S. Ct. at 2178. The taking of


                                             11
a urine sample, therefore, raises the same privacy concerns that the Court addressed in

Birchfield with regard to blood tests.6

                                              3.

       With respect to the third part of the analysis, Thompson, citing the Supreme Court’s

discussion in Skinner, contends that urine tests cause considerably more embarrassment for

arrestees than breath tests. See 489 U.S. at 617 (“ ‘There are few activities in our society

more personal or private than the passing of urine. Most people describe it by euphemisms

if they talk about it at all.      It is a function traditionally performed without public

observation; indeed, its performance in public is generally prohibited by law as well as

social custom.’ ” (quoting Nat’l Treasury Emps. Union v. Von Raab, 816 F.2d 170, 175

(5th Cir. 1987))). The State, on the other hand, argues that participation in a urine test need

not involve any embarrassment nor an invasion of privacy, and that even if the test does

implicate some privacy rights, arrestees have a diminished expectation of privacy once they

are validly placed under arrest.

       Urine tests for law enforcement purposes, regardless of how they are administered,

implicate significant privacy interests. See Skinner, 489 U.S. at 617 (“[T]he process of

collecting the sample to be tested, which may in some cases involve visual or aural


6
       The State contends that the retention of urine samples is comparable to the
warrantless DNA collection that the Court upheld in King, ___ U.S. at ___, 133 S. Ct. at
1969. The buccal swab of an arrestee’s inner cheek in that case was “reasonable” given
the arrestee’s diminished expectation of privacy and the “brief intrusion” of the swab. Id.
at ___, 133 S. Ct. at 1979. The Court, however, went on to stress that it was not
“suggest[ing] that any search is acceptable solely because a person is in custody.” Id. at
___, 133 S. Ct. at 1979. Moreover, the warrantless search in King was not upheld as a
search incident to a valid arrest, and as a result, King is inapposite to our analysis here.

                                              12
monitoring of the act of urination, itself implicates privacy interests.”). When an arrestee

submits to a urine test on suspicion of drunk driving, the arrestee must urinate, on

command, “in full view” of the arresting officer, who must witness the arrestee “void

directly into the bottle.” Bureau of Criminal Apprehension Forensic Sci. Lab., Urine

Collection Kit Instructions for Arresting Officer (2011), https://dps.mn.gov/divisions/bca/

bca-divisions/forensic-science/Documents/Urine%20Specimen%20Collection%20Instruc

tions.pdf. Because the participation in a urine test involves “a substantial invasion beyond

the arrest itself,” case law suggests that such a test cannot be justified as a search incident

to an arrest. See Riley, ___ U.S. at ___, 134 S. Ct. at 2488.

       In urging us to uphold the urine test as a valid search incident to arrest, the

Minnesota Attorney General, as amicus on behalf of the State, contends that the

“[p]rovision of a urine sample is not materially different from other full-body searches

conducted incident to arrest.”      Similarly, the State asserts that the Court has long

recognized body searches as valid when conducted incident to an arrest. But a search that

involves an arrestee performing a personal and private bodily function “in full view” before

law enforcement implicates privacy concerns in ways that even a thorough full-body search

does not. Compared to blood testing, which does not involve an arrestee performing a

private bodily function in front of law enforcement, urine testing involves a much greater

privacy invasion in terms of embarrassment. This factor therefore strongly indicates that

urine testing implicates weighty privacy concerns.

       In sum, in terms of the impact on an individual’s privacy, a urine test is more like a

blood test than a breath test. Specifically, although a urine test does not require a physical


                                              13
intrusion into the body in the same way as a blood test, urine tests have the potential to

provide the government with more private information than a breath test, and there can be

no question that submitting to a urine test under the watchful eye of the government is more

embarrassing than blowing into a tube.

                                             B.

       On the other side of the balancing analysis, we consider the State’s asserted need to

obtain alcohol concentration readings through urine tests to prevent drunk driving. In

Birchfield, the Court reiterated the state and federal government’s “paramount interest” in

preserving public-highway safety. ___ U.S. at ___, 136 S. Ct. at 2178. The Court further

stated that the government’s interest is not satisfied by simply removing suspected drunk

drivers from the road through a lawful arrest because the government has a compelling

interest in deterring drunk driving so individuals do not pose a threat to others in the first

place. Id. at ___, 136 S. Ct. at 2179. Nor is the government’s interest served in full, the

Court reasoned, by authorizing administrative license revocation penalties that are

“unlikely to persuade the most dangerous offenders.” Id. at ___, 136 S. Ct. at 2179.

       The reasonableness of a particular type of test to determine alcohol concentration

depends, however, on the “availability of [] less invasive alternative” tests. Id. at ___,

136 S. Ct. at 2184. In concluding that the government interest in obtaining alcohol

concentration readings through warrantless blood tests was diminished, the Court stressed

that the government “offered no satisfactory justification for demanding the more intrusive

alternative [test]” when a breath test, a reasonable search incident to a valid arrest, would

typically serve the government’s needs. Id. at ___, 136 S. Ct. at 2184. In situations in


                                             14
which a breath test would not serve the government’s interest, “[n]othing prevents the

police from seeking a warrant” for an alternative test “when there is sufficient time to do

so, . . . or from relying on the exigent circumstances exception to the warrant requirement

when there is not.” Id. at ___, 136 S. Ct. 2184.

       Although Birchfield addressed the availability of breath tests as an alternative to

warrantless blood tests, the same logic applies with equal force to warrantless urine tests.

Breath tests, validly performed incident to an arrest, will serve the State’s interest in

deterring drunk driving and preserving highway safety. The availability of an alternative

test impacts the reasonableness of urine tests just as it does blood tests. The State here

presents no justifications for warrantless urine tests other than those the Court considered

and rejected in Birchfield in the context of blood draws. See Birchfield, ___ U.S. at ___,

136 S. Ct. at 2184 (rejecting the justification for warrantless blood tests based on a breath

test’s inability to detect controlled substances because the “police have other measures at

their disposal when they have reason to believe that a motorist may be under the influence

of some other substance”); id. at ___, 136 S. Ct. at 2184-85 (addressing the availability of

alternative forms of testing for arrestees unable to perform a breath test and concluding that

there is “no reason to believe that such situations are common in drunk-driving arrests, and

when they arise, the police may apply for a warrant if need be”). Accordingly, despite the

State’s “great” need for alcohol concentration testing, the availability of a less-invasive

breath test weighs against the reasonableness of requiring the more revealing and

embarrassing urine test absent a warrant or exigent circumstances.




                                             15
       Based on our analysis, we hold that a warrantless urine test does not qualify as a

search incident to a valid arrest of a suspected drunk driver. Such tests significantly intrude

upon an individual’s privacy and cannot be justified by the State’s interests given the

availability of less-invasive breath tests that may be performed incident to a valid arrest.

                                              II.

       If we conclude that the warrantless blood or urine test would have been

unconstitutional under the Fourth Amendment, the State argues that Thompson is still not

entitled to relief because of the good-faith exception to the exclusionary rule, which we

adopted in State v. Lindquist, 869 N.W.2d 863 (Minn. 2015).7 The State argues that

because the arresting officer objectively relied in good faith on binding appellate precedent

in choosing not to obtain a warrant in Thompson’s case, we should decline to suppress

evidence of Thompson’s test refusal and uphold his conviction.

       We considered and rejected this precise argument in Trahan, No. A13-0931, slip op.

at 11-12. As was the case in Trahan, the good-faith exception to the exclusionary rule has

no application because Thompson has not sought to exclude any evidence the State wants

to use against him. For the reasons we set out in Trahan, the State’s good-faith exception

argument fails.




7
        The good-faith exception to the exclusionary rule does not require the suppression
of illegally obtained evidence when the evidence is obtained in “ ‘reasonable reliance’ ” on
“ ‘binding appellate precedent’ ” that “ ‘specifically authorizes a particular police
practice’ ” at the time of the search. Lindquist, 869 N.W.2d at 869 (quoting Davis v. United
States, 564 U.S. 229, 241 (2011)).

                                              16
                                              III.

       Having concluded that conducting a blood or urine test without a warrant violates

the Fourth Amendment, the question remains whether Thompson can be prosecuted for

refusing to submit to an unconstitutional search.8 In Birchfield, the Court held under the

Fourth Amendment that North Dakota could not prosecute the driver in that case for

refusing to submit to an unconstitutional blood test. ___ U.S. at ___, 136 S. Ct. at 2186.

We reach the same conclusion here and hold that Thompson cannot be prosecuted for

refusing to submit to an unconstitutional warrantless blood or urine test, and that Minn.

Stat. § 169A.20, subd. 2, is unconstitutional as applied.9

    Affirmed.



       CHUTICH, J., took no part in the consideration or decision of this case.

       MCKEIG, J., not having been a member of this court at the time of submission, took

no part in the consideration or decision of this case.




8
        At oral argument, the State asked us to limit the retroactive application of this ruling
to cases pending on the date of this decision. Because the State raised the issue of the
retroactive application of our ruling for the first time at oral argument, we need not decide
this issue. See State v. Morrow, 834 N.W.2d 715, 724 n.4 (Minn. 2013).
9
       Because we hold that the test refusal statute is unconstitutional under the Fourth
Amendment, we need not address Thompson’s alternative arguments that the statute
violates the doctrine of unconstitutional conditions and his Fifth Amendment right against
self-incrimination.

                                              17
