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The Future Of Our “Rights”: Punishment For Exercising The Right To Withhold Consent From Warrantless Searches?

A Minnesota appellate court recently appears to have claimed that the state may criminalize a person’s refusal to consent to a warrantless search if the officer could have hypothetically obtained a warrant. You can read the opinion here.

This is dangerous.

It has long been recognized that persons can withhold consent from warrantless searches and seizures. It has also been held that persons cannot be punished for withholding consent or that withholding consent cannot be used as evidence of guilty knowledge because it would burden assertion of a fundamental right. For example, recently Division One of the Court of Appeals of Washington recently reached the correct result in a well reasoned opinion:

In State v. Guathier, the court of appeals held that a prosecutor’s use of a person’s invocation of his constitutional right to refuse consent to a warrantless search as substantive evidence of guilt was a manifest constitutional error. State v. Gauthier concerned a rape suspect’s refusal to submit to DNA testing when he was not under arrest. However, this opinion has raised issues about the validity of utilizing refusals to submit to breath tests as substantive evidence of guilt in the DUI context in light of Missouri v. McNeely, where the United States Supreme Court recently made clear that non-consensual, warrantless blood testing is unconstitutional (absent exigent circumstances).

Now it appears the Minnesota court of appeals has heard this issue and has decided that because an officer can get a warrant- the state can penalize the person for not giving consent to warrantless breath testing? This is odd. It basically opens the door for outrageous conduct.

For example, let’s say a state passes a law that says everyone who owns property implies consent to a search of their home for illegal drugs if they are suspected of drug use. If the person refuses consent he or she may be charged with the crime of refusal. This arrangement essentially erodes the fundamental right to be free of non-consensual warrantless searches – you can exercise your right, but if you do you will be punished. It seems the Minnesota appellate court thinks this is okay because an officer can hypothetically obtain a warrant.

Fundamental rights are not rights at all if you can be punished for exercising them. We will see how this area of law develops in Washington state and around our nation.

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