Series: Consent as an Exception to the Fourth Amendment

Posted On January 20, 2015 by Charles Ramsay

Nearly two years ago, the United States Supreme Court held in Missouri v. McNeely that police must obtain a search warrant in most DWI alcohol test cases because the dissipation of alcohol in the body is not enough to make an exception to the warrant requirement. Last year, in State v. Brooks, the Minnesota Supreme Court relied on a judicially-crafted exception to the warrant requirement when it held that police in Minnesota do not need to obtain a search warrant when a driver "freely and voluntarily| consents to a DWI alcohol test (and yes, every type of DWI test, whether it's by blood, breath, or urine, is most definitely a constitutionally protected search).

At first glance, the concept of consent â?? you ask me for permission and I say yes or no â?? seems simple and straightforward. Through the looking glass of the legal system, however, consent is complicated. In the world of DWI chemical testing, consent has become one of Minnesota's most litigated issues, both at the district court level, in the appellate courts . . . and even in federal court.

The approach of Minnesota's courts towards this issue of "consent" arises from the blurring of two concepts: consent and submission. Under current Minnesota law, submission can be legally compelled; submission to DWI testing is required by law and refusal to submit is a crime. Consent, on the other hand, must be intentional, free, and voluntary, and cannot be coerced or compelled by law. By definition, consent to search is the free and voluntary waiver of the fundamental constitutional right to be free from warrantless searches. When actual consent to a warrantless search is freely and voluntarily given to law enforcement by an individual, a warrantless search is constitutional. (Even then, though, the individual retains the right to withdraw consent at any time, as well as limit the scope of the consent.)

Consent is the critical issue because without free and voluntary consent, a search â?? even one the law requires you to submit to â?? is unconstitutional. When submission is required by law, how do we differentiate consent?

This is the introductory post of our blog series, Consent as an Exception to the Fourth Amendment Warrant Requirement: DWI Alcohol Testing. In our upcoming posts we'll discuss:

1. The History of the Consent Exception to the Fourth Amendment Warrant Requirement

2. The Evolution of the Consent Search Doctrine

3. Minnesota's New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks

4. Consent as a Matter of Law: The Minnesota Court of Appeals and the Consent Exception to the Fourth Amendment

5. The Constitutional Implications of Minnesota's New Standard for the Consent Exception to the Fourth Amendment

6. The Future of the Consent Search Doctrine