In a new unpublished court of appeals opinion , the nature of consent was clarified by the court.
In State v. Drum, the state appealed a suppression of evidence from Drum's breathalyzer test that was granted by the district court. The state argued that the respondent voluntarily consented to the search, and so the decision was reversed and remanded to the district court.
The district court had held that law enforcement's failure to obtain a warrant before administering the breathalyzer exam was a violation of Drum's Fourth Amendment rights because none of the following three exceptions to the warrant requirement applied: (1) the dissipation of blood as an exigent circumstance, (2) voluntarily consent to the test, and (3) the good-faith exception.
However, the Appellate court disagreed with this analysis. Specifically, the court examined the consent exception to the warrant requirement.
The court noted that, “[f]or a search to fall under the consent exception, the state must show by a preponderance of the evidence that the subject of the search freely and voluntarily consented.” State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011). It also stated that “[i]f police action is coercive,” consent is no longer voluntarily given, and the consent exception does not apply.” State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999).
In contemplating whether the consent was coercive or whether it was given freely and voluntarily, the court looked at the totality of the circumstances. These include: the nature of the encounter, the kind of person the defendant is, and what was said and how it was said.
Here, the court found that the consent to test was given freely and voluntarily. It gave the following reasons for its decision.
First, the state followed the statutory requirements of the implied consent law. Second, verbal consent was actually given.
To this second point, the district court had concluded that the verbal consent was not valid because the Defendant believed that his “only true choice was to take the test.”
To this point, the court simply pointed to Brooks which held that as a matter of law the criminal test-refusal penalty in the implied-consent law is not coercive.
From this appellate case, it can be learned that the defendant's believe that consent was the defendant's only true choice will not be enough to show that the consent was coercive. The court clarified that consent can be freely and voluntarily given under these circumstances.
This case also shows that giving actual, verbal consent can work against a defendant if they are to later claim that consent was coercive. It also shows that a proper reading of the implied consent law works in favor of showing that consent was given freely and voluntarily.
Coerced consent is not consent, but the law remains unclear as to what exactly this will be. Drum gives insight that perhaps an improper reading of the implied consent law—perhaps combined with a law of explicit, verbal consent—may be a basis for proving involuntary consent. This would, of course, allow for the suppression of evidence.
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