This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0129
State of Minnesota, Respondent,
vs.
Tiffany Nicole Phillips, Appellant.
Filed August 29, 2016 Reversed and remanded Kalitowski, Judge
Scott County District Court File No. 70-CR-14-18923
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota (for respondent)
Kevin A. Sieben, Sieben Edmunds PLLC, Mendota Heights, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and
Kalitowski, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
KALITOWSKI, Judge
Appellant, Tiffany Nicole Phillips, challenges the district court’s denial of her
motion to suppress the results of a blood test to which she consented after being read the
Minnesota Implied Consent Advisory, and the district court’s denial of her motion to vacate
the verdict in the interests of justice following this court’s decision in State v. Trahan, 870
N.W.2d 396 (Minn. App. 2015), review granted (Minn. Nov. 25, 2015). We reverse and
remand.
DECISION
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
the district court’s factual findings are reviewed under a clearly erroneous standard. But
legal determinations . . . are reviewed de novo.” State v. Eichers, 853 N.W.2d 114, 118
(Minn. 2014) (citation omitted), cert. denied, 135 S. Ct. 1557 (2015).
The United States and Minnesota Constitutions protect the right of the people to be
free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. Taking a blood sample constitutes a “search” under the Fourth Amendment. Skinner
v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13 (1989). “Such
an invasion of bodily integrity implicates an individual’s most personal and deep-rooted
expectations of privacy.” Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (quotation
omitted). A warrantless search is per se unreasonable “subject only to a few specifically
established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88
S. Ct. 507, 514 (1967). In general, evidence obtained in violation of the constitution must
2 be suppressed. See State v. Jackson, 742 N.W.2d 163, 177-78 (Minn. 2007) (suppressing
evidence obtained during an unconstitutional nighttime search).
A warrant is not required “if the subject of the search consents.” State v. Brooks,
838 N.W.2d 563, 568 (Minn. 2013). The voluntariness of a defendant’s consent to submit
to chemical testing is assessed under “the totality of the circumstances, including the nature
of the encounter, the kind of person the defendant is, and what was said and how it was
said.” Id. at 569 (quotation omitted). “The question whether a consent to a search was in
fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question
of fact.” State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011) (quotation omitted).
On October 24, 2014, Phillips was driving from Shakopee to Burnsville. According
to the complaint, a police officer saw a tan car “weaving over the center line onto the
shoulder and traveling at varying speeds.” The officer followed the car and eventually
pulled Phillips over. The officer noticed that Phillips smelled like alcohol and her eyes
were red and watery. Phillips admitted to drinking one beer one to two hours before she
was pulled over. After “unsatisfactory” results on several field sobriety tests and failing a
preliminary breath test, Phillips was arrested and taken to a hospital, where she was read
the Minnesota Implied Consent Advisory. Phillips asked to speak with an attorney, but she
was unable to contact one. Phillips then agreed to take a blood test, which registered her
alcohol concentration at 0.239, which is an aggravating factor under Minn. Stat. § 169A.03,
subd. 3 (2014). Phillips also had a prior alcohol-related revocation from September 2011,
which is another aggravating factor under the same provision.
3 Phillips was charged by complaint with third-degree DWI under Minn. Stat.
§ 169A.20, subd. 1(1) (2014). Based on her blood test results, the state filed an amended
complaint in December 2014, charging her with one count of second-degree gross
misdemeanor DWI—operating a vehicle under the influence of alcohol—and one count of
second-degree gross misdemeanor DWI with an alcohol concentration of 0.08 within two
hours of driving. See id., subd. 1(1), (5).
Phillips filed a motion to suppress the results of the blood test, arguing that “the
reading of the implied consent advisory violated her due process rights under the 5th and
14th Amendments of the U.S. Constitution and under the Minnesota Constitution.” Phillips
argued that “[i]f drivers cannot be prosecuted for exercising their rights to be free from a
warrantless blood test, then the threatening of Defendant with a criminal charge for
refusing violates due process, whether or not a blood test was ultimately taken by
agreement of the Defendant.” Phillips relied on a footnote in State v. Bernard that could be
read to suggest that a warrantless blood or urine test of a suspected drunk driver might not
be justified as a search incident to arrest. See 859 N.W.2d 762, 768 n.6 (Minn. 2015), aff’d
sub nom. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). Phillips’s due-process
argument relied on the analysis in McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848
(Minn. 1991). She argued that “[b]ecause it cannot be a crime to refuse a warrantless blood
test in a DWI case, the implied consent advisory again threatens a crime the state cannot
lawfully pursue and threatening that crime violates a driver’s due process rights under
McDonnell.” Following a contested omnibus hearing, the district court denied Phillips’s
4 motion to suppress. Phillips was found guilty of second-degree gross misdemeanor DWI
after a stipulated evidence trial pursuant to Minn. R. Crim. P. 26.01, subd. 4.
Phillips moved to vacate the verdict under Minnesota Rule of Criminal Procedure
26.04, subd. 1(1). Phillips relied on this court’s decision in Trahan, 870 N.W.2d 396, which
had been decided the day before her motion to vacate. Phillips argued that Trahan
“establishes that the State cannot require someone to submit to a warrantless blood draw
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0129
State of Minnesota, Respondent,
vs.
Tiffany Nicole Phillips, Appellant.
Filed August 29, 2016 Reversed and remanded Kalitowski, Judge
Scott County District Court File No. 70-CR-14-18923
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Shakopee, Minnesota (for respondent)
Kevin A. Sieben, Sieben Edmunds PLLC, Mendota Heights, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and
Kalitowski, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
KALITOWSKI, Judge
Appellant, Tiffany Nicole Phillips, challenges the district court’s denial of her
motion to suppress the results of a blood test to which she consented after being read the
Minnesota Implied Consent Advisory, and the district court’s denial of her motion to vacate
the verdict in the interests of justice following this court’s decision in State v. Trahan, 870
N.W.2d 396 (Minn. App. 2015), review granted (Minn. Nov. 25, 2015). We reverse and
remand.
DECISION
“When reviewing a district court’s pretrial order on a motion to suppress evidence,
the district court’s factual findings are reviewed under a clearly erroneous standard. But
legal determinations . . . are reviewed de novo.” State v. Eichers, 853 N.W.2d 114, 118
(Minn. 2014) (citation omitted), cert. denied, 135 S. Ct. 1557 (2015).
The United States and Minnesota Constitutions protect the right of the people to be
free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I,
§ 10. Taking a blood sample constitutes a “search” under the Fourth Amendment. Skinner
v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13 (1989). “Such
an invasion of bodily integrity implicates an individual’s most personal and deep-rooted
expectations of privacy.” Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (quotation
omitted). A warrantless search is per se unreasonable “subject only to a few specifically
established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88
S. Ct. 507, 514 (1967). In general, evidence obtained in violation of the constitution must
2 be suppressed. See State v. Jackson, 742 N.W.2d 163, 177-78 (Minn. 2007) (suppressing
evidence obtained during an unconstitutional nighttime search).
A warrant is not required “if the subject of the search consents.” State v. Brooks,
838 N.W.2d 563, 568 (Minn. 2013). The voluntariness of a defendant’s consent to submit
to chemical testing is assessed under “the totality of the circumstances, including the nature
of the encounter, the kind of person the defendant is, and what was said and how it was
said.” Id. at 569 (quotation omitted). “The question whether a consent to a search was in
fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question
of fact.” State v. Diede, 795 N.W.2d 836, 846 (Minn. 2011) (quotation omitted).
On October 24, 2014, Phillips was driving from Shakopee to Burnsville. According
to the complaint, a police officer saw a tan car “weaving over the center line onto the
shoulder and traveling at varying speeds.” The officer followed the car and eventually
pulled Phillips over. The officer noticed that Phillips smelled like alcohol and her eyes
were red and watery. Phillips admitted to drinking one beer one to two hours before she
was pulled over. After “unsatisfactory” results on several field sobriety tests and failing a
preliminary breath test, Phillips was arrested and taken to a hospital, where she was read
the Minnesota Implied Consent Advisory. Phillips asked to speak with an attorney, but she
was unable to contact one. Phillips then agreed to take a blood test, which registered her
alcohol concentration at 0.239, which is an aggravating factor under Minn. Stat. § 169A.03,
subd. 3 (2014). Phillips also had a prior alcohol-related revocation from September 2011,
which is another aggravating factor under the same provision.
3 Phillips was charged by complaint with third-degree DWI under Minn. Stat.
§ 169A.20, subd. 1(1) (2014). Based on her blood test results, the state filed an amended
complaint in December 2014, charging her with one count of second-degree gross
misdemeanor DWI—operating a vehicle under the influence of alcohol—and one count of
second-degree gross misdemeanor DWI with an alcohol concentration of 0.08 within two
hours of driving. See id., subd. 1(1), (5).
Phillips filed a motion to suppress the results of the blood test, arguing that “the
reading of the implied consent advisory violated her due process rights under the 5th and
14th Amendments of the U.S. Constitution and under the Minnesota Constitution.” Phillips
argued that “[i]f drivers cannot be prosecuted for exercising their rights to be free from a
warrantless blood test, then the threatening of Defendant with a criminal charge for
refusing violates due process, whether or not a blood test was ultimately taken by
agreement of the Defendant.” Phillips relied on a footnote in State v. Bernard that could be
read to suggest that a warrantless blood or urine test of a suspected drunk driver might not
be justified as a search incident to arrest. See 859 N.W.2d 762, 768 n.6 (Minn. 2015), aff’d
sub nom. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). Phillips’s due-process
argument relied on the analysis in McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848
(Minn. 1991). She argued that “[b]ecause it cannot be a crime to refuse a warrantless blood
test in a DWI case, the implied consent advisory again threatens a crime the state cannot
lawfully pursue and threatening that crime violates a driver’s due process rights under
McDonnell.” Following a contested omnibus hearing, the district court denied Phillips’s
4 motion to suppress. Phillips was found guilty of second-degree gross misdemeanor DWI
after a stipulated evidence trial pursuant to Minn. R. Crim. P. 26.01, subd. 4.
Phillips moved to vacate the verdict under Minnesota Rule of Criminal Procedure
26.04, subd. 1(1). Phillips relied on this court’s decision in Trahan, 870 N.W.2d 396, which
had been decided the day before her motion to vacate. Phillips argued that Trahan
“establishes that the State cannot require someone to submit to a warrantless blood draw
absent an exception to the warrant requirement.” Phillips argued that, under Trahan and
McDonnell, the implied-consent advisory “violat[ed] due process because it threatened
prosecution for an offense that could not be prosecuted.” Following a hearing, the district
court denied Phillips’s motion, concluding that because Trahan “did not consider the issue
of consent to a blood draw,” and Phillips consented to the blood draw, Trahan was not
controlling.
While Phillips’s direct appeal was pending, the United States Supreme Court held
that a state may not constitutionally criminalize a driver’s refusal to submit to a warrantless
blood test, even where the driver was arrested lawfully for DWI, absent case-specific
exigent circumstances justifying the state’s failure to seek a search warrant. Birchfield, 136
S. Ct. at 2185-86. The implied-consent advisory that was read to Phillips was therefore
partially inaccurate insofar as it conveyed to Phillips that withholding consent to a
warrantless blood test is a crime. See id. at 2186 (noting that defendant “submitted to a
blood test after police told him that the law required his submission,” labeling as
“erroneous” state court’s assumption that state could permissibly compel warrantless blood
test, and characterizing as “partial[ly] inaccura[te]” advisory given to defendant).
5 But the partial inaccuracy of the implied-consent advisory is only one circumstance
in the totality of the circumstances faced by Phillips when she agreed to take a blood test.
See id. (noting that state court “held that [defendant]’s consent was voluntary on the
erroneous assumption that the State could permissibly compel both blood and breath tests,”
reiterating that “voluntariness of consent to a search must be determined from the totality
of all the circumstances,” and directing state court “to reevaluate [defendant]’s consent
given the partial inaccuracy of the officer’s advisory” (quotation omitted)); cf. Brooks, 838
N.W.2d at 569 (stating that the totality of the circumstances includes “what was said and
how it was said” (quotation omitted)). Here, the partial inaccuracy of the advisory was not
considered by the district court, which lacked the guidance provided by Birchfield.
We therefore reverse the district court’s judgment, as to Phillips’s DWI conviction
and sentence, and remand to the district court to reassess the voluntariness of her consent
to the blood test in light of all the relevant circumstances, including the partial inaccuracy
of the advisory, and to consider the applicability, if any, of the good-faith exception to the
exclusionary rule. See Birchfield, 136 S. Ct. at 2186-87, 2186 n.9 (vacating judgment of
state court, remanding for state court “to reevaluate [defendant]’s consent given the partial
inaccuracy of the officer’s advisory,” and noting that state court “will have to address
whether the evidence obtained in the search must be suppressed” if state court finds on
remand that defendant did not voluntarily consent to blood test).
Regarding Phillips’s due-process argument, we note that unlike the situation in
McDonnell, the officer here did not actively mislead Phillips. Moreover, the advisory
6 Phillips received was legally accurate at the time it was given. Accordingly, Phillips’s due-
process argument under McDonnell fails.
Finally, because we are reversing and remanding this matter, we do not address
Phillips’s argument that the district court erred in denying her motion to vacate the verdict
in the interests of justice.
Reversed and remanded.